My post on the Netflix class-action has generated more email than almost anything else I've posted about in recent weeks. So here are a few more links and thoughts.

Heidi Bond, Ted Frank, and Paul Goyette all point out an added element of chicanery that I neglected in my original post. If you receive your alleged payment in this class action (a month of increased Netflix membership for free) it automatically rolls over to the next month. Given what we know about default rules, Netflix may actually make money off of what it claims to be a payment.

Now I have no objection to Netflix offering a free trial increased-membership, which is what this amounts to, but it seems really weird to suggest that in exchange for encouraging Netflix to enact this scheme the lawyers that allegedly represent me deserve a 2.5 million dollar cut.

Finally, we get to the opt-in, opt-out problem. As I understand the class notification email I received today, it works like this. I am a member of this class, and will have my own legal claim against Netflix extinguished unless I affirmatively opt out of the class. However, I will not receive the dubious benefit unless I affirmatively opt in to the remedy.

That is, the default position for those who don't pay attention to or receive their Netflix email will be to have their legal claims raised, settled, and extinguished for absolutely no money at all. It is hard to think of any system of civil procedure in which this is a sensible thing to do. If my claim is not actually going to be litigated and I'm not going to be paid either, why should I be counted in the class at all? The only redeeming feature of this is that it is possible that the value of the settlement is negative.

(But if that's true, then maybe the lawyers' contingency fees ought to be negative too! Actually, that's unfair. The lawyers ought to receive 2.5 million dollars in Netflix rentals, with subscription to continue at full price unless they opt out of them in time.)

As I write this the House is voting on the "Private Property Rights Bill" although I am confused at this point about what version of the legislation is at issue. As much as I like this legislative stuff, other duties have been more pressing in the psat few days. In general these popular responses to Supreme Court rulings have tended to fail in the modern day. Jeff Sutton predicted to the Court that every state would enact a RFRA if they struck down part of the federal RFRA in Boerne v. Flores. They did, but state RFRAs don't even amount to half that. Still, I am pleased by the dialog.

Nymphs and shepherds, dance no more.

First, I learned to finally let go of split infinitives. Then I learned, slowly, that prepositions are things that sentences can end with. And now, via, Jesse Sheidlower, via Slate, via NPR, my mind was literally blown.

Literally.

What next? The subjunctive mood?