Archive for the 'Law' Category

A law firm is advertising on CNBC, trying to gin up plaintiffs for lawsuits against siren manufacturers. The pitch is: “Have you lost hearing after working around loud sirens?”

There must be people who have lost hearing from sirens. However, sirens are supposed to be loud. No one could reasonably expect otherwise. Nor is it the responsibility of siren makers to protect people from sirens. Individuals, and perhaps their employers, should do that.

Probably what the lawyers intend to do is find a large group of people who have imperfect hearing and used to drive ambulances or work in factories, assert that their hearing problems result from on-the-job exposure to sirens, and extract a settlement from siren manufacturers who want to avoid expensive litigation and the financial Sword of Damocles of a possible adverse jury verdict (jurisdiction to be selected for maximum plaintiff-friendliness).

Who will bear the costs of these cases (unless they are thrown out as they should be)? The siren manufacturers will go out of business, pay out a lot of money and/or move overseas. Sirens will cost more. The private firms and governments that use sirens will pass along the higher costs in the form of higher prices for their products, higher taxes and fewer jobs. Perhaps they will use fewer sirens in the future, which might lead to more accidents and related costs. Employers will tell workers to wear ear plugs, but many workers will not do so. Some of the plaintiffs, whose hearing loss may or may not have been caused by sirens, will receive windfalls. The lawyers will make a lot of money and look for other industries to plunder. Maybe they will sue rock bands or the Army next.

So – the blog kerfuffle du jour is John Derbyshire and the internet essay that he wrote for another obscure blog-magazine, the topic of which has raised such a general ruckus among the right-thinking side of the blogosphere, that it got him dumped over Easter weekend from the National Review and has the Breitbart conglomerate all in a twitter, and many of the rest of us on the libertarian/conservative/free-thinking side of the spectrum seeming to be thinking thoughts pretty much split three ways; cringing and thinking ‘oh, s**t’ or ‘about damn time’ and ‘ ‘OK then – if representatives of the capital ‘B’ Black community can witter all over the print media and the intertubules about their worries about their children running afoul of the 21st century version of the KKK – can those of us from the race of pallor worry frankly and openly about getting lost in certain neighborhoods, the odds on survival when taking the wrong exit off particular interstates in big urban areas, or the wisdom of going to certain sports venues without being armed to the teeth?’
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In Barak Obama’s resume was a statement that he taught constitutional law as an “adjunct professor” at U of Chicago Law School. I have never considered this to be a major achievement since adjunct professors are not paid and the subject he taught was more related to his other interests. Constitutional law was not one of them.

At the school, Mr. Obama taught three courses, ascending to senior lecturer, a title otherwise carried only by a few federal judges. His most traditional course was in the due process and equal protection areas of constitutional law. His voting rights class traced the evolution of election law, from the disenfranchisement of blacks to contemporary debates over districting and campaign finance. Mr. Obama was so interested in the subject that he helped Richard Pildes, a professor at New York University, develop a leading casebook in the field.

Mr. Obama was especially eager for his charges to understand the horrors of the past, students say. He assigned a 1919 catalog of lynching victims, including some who were first raped or stripped of their ears and fingers, others who were pregnant or lynched with their children, and some whose charred bodies were sold off, bone fragment by bone fragment, to gawkers…

Should we be surprised at his knowledge, or lack of it, on the basics of constitutional law ? Even his attempt to correct his clueless comments about judicial review are incoherent

Apparently unaware of the most basic principles of constitutional law, going back to Marbury v. Madison in 1803, he said:

And I — I’d just remind conservative commentators that for years what we’ve heard is the biggest problem on the bench was judicial activism or a lack of judicial restraint; that, uhhh, an unelected, uhhh, group of — of people would somehow overturn, uhhh, a duly constituted and — and passed, uh, law. Uh, well, uh, uh, is a good example. Uhh, and I’m pretty confident that this, — this court will recognize that, uh, and not take that step.

The 5th Circuit Court of Appeals responded

Overturning a law of course would not be unprecedented — since the Supreme Court since 1803 has asserted the power to strike down laws it interprets as unconstitutional. The three-judge appellate court appears to be asking the administration to admit that basic premise — despite the president’s remarks that implied the contrary. The panel ordered the Justice Department to submit a three-page, single-spaced letter by noon Thursday addressing whether the Executive Branch believes courts have such power, the lawyer said.

Marbury vs Madison is one of the oldest and most basic cases that would be studied by a law student interested in Constitutional Law. The fact that our president does not know this ranks with his comments on speaking “Austrian” in Austria and his estimation of the number of US states.

Is he really this dim ? Did Harvard turn out this affirmative action dullard and inflict him on the country ?

George Orwell was more right than he knew….

Congress passed a law – by unanimous consent in the Senate and by a suspension of rules in the House – to permit the Federal government to arbitrarily arrest and imprison for up to ten years members of the serf class (formerly known as “American citizens”) whose presence annoys or offends specially designated members of the elite and foreign dignitaries. A list that will no doubt expand greatly in future legislation to include very “special” private citizens.

Think about that, future “Joe the Plumbers” or Cindy Sheehans, before you ask an impertinent question of your betters or wave your handmade cardboard sign. Is ten seconds of glory on your local ABC affiliate news at 5 o’clock worth that felony arrest record and federally funded anal exam?

No? Then kindly shut your mouth, sir. Learn your place.

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When gold was discovered in the foothills of the Sierra Nevada in 1848, it seemed as if most of the world rushed in to California – which, until then had been a sparsely-settled outpost of Mexico, dreaming the decades away. The climate was enchantingly mild, Mediterranean – warm enough for groves of olive trees and citrus to thrive, and the old missions crumbled away as if nothing had or would ever change. The old, proud Californio families with names like Verdugo, Vasquez, Pico and Vallejo kept vast cattle herds and lived in extensive but rather Spartan-plain estates. There were a few handfuls of American settlers who had come overland, or by sea; they tended to what little trade there was, and an energetic and slightly shady Swiss entrepreneur named Johann Sutter had a vast agricultural and establishment centered around a fortified holding in present-day Sacramento. It was on his property, and in the course of building a saw-mill that gold was discovered. And change came upon the enchanted land – and the place called Yerba Buena turned almost overnight from a hamlet of eight hundred souls on the shore of San Francisco Bay into a ramshackle metropolis of 25,000 and more in the space of two years.
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Some private security firms around Chicago are looking to beef up their ranks with Iraq and Afghanistan war vets ahead of two world summits that are expected to bring multitudes of protesters to the city this spring.

The article states that the security firms are interested in hiring veterans because they are likely to show “better restraint” if the protests turn violent. Interesting.

And I really hope any protests don’t turn violent.

Update: Thanks to Carl Prine’s Line of Departure for highlighting the above article/ad and mentioning this blog-within-a-blog. Second City Cop has a post on the topic and lots on the upcoming summit, too. Just keep scrolling.

[ a meander on the perils and promise of research, jihad, typos, books and more ]

It begins with an email from Lexington Green saying I might be interested in a tweet he had posted earlier this morning:

The Insurance Journal tells us:

Defendants named in the complaint were Kingdom of Saudi Arabia, The Saudi High Commission for Relief of Bosnia & Herzegovina, Saudi Joint Relief Committee for Kosovo and Chechnya, Saudi Red Crescent Society, National Commercial Bank, Al Rajhi Banking and Investment Company. Also included as defendants are three Saudi citizens connected to these organizations, Prince Salman Bin Abdul Aziz Al Saud, Suleiman Abdel Aziz Al Saud and Yassin Al Qadi.
 
The case is Underwriting Members of Lloyd’s Syndicate 3500 v. Kingdom of Saudi Arabia, 11-00202, U.S. District Court, Western District of Pennsylvania.

Okay, I’m curious. I go to the complaint [.pdf] and start reading… and on page 9, I find:

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From Strategypage, evidence that lawfare leads to more enemy dead, fewer prisoners.

Iraqi security forces have had a growing impact on terrorist operations. This largely goes unreported, but the Iraqi police and soldiers, especially the elite counter-terror units, have interrupted many terror attacks, and arrested many terrorists. Aware of the corruption of the courts and regular police, the counter-terror units will often just kill key terrorists during raids, rather than risk the prisoner bribing his way to freedom. This is also an unofficial policy in some American operations, and official policy when missile armed UAVs are used.

We get enough intel and the risk of further friendly casualties is far enough above zero that we’re just killing people out of hand when in the past we might have sought to capture them. Congratulations lawfare participants in the media and legal professions. Their blood is on your hands.

cross posted @ Flit-TM

Dear Legislator:
Could you please help me decide which of my kids lives to save? Here’s the problem:

Last night yet another of my kids found himself on the goodbye end of a robber’s gun as the robber slowly counted down
 
“5 . . . 4 . . . 3 . . . 2 . . . ”
 
I know you politicians told us “if it saves one life, then keeping guns away from law-abiding citizens is the right thing to do!” but I’m having a little trouble figuring out which life is the one to be saved. I’ve had most of these kids for 20 years or more, and I’m rather fond of them all.
 
My kid last night? It was his third time facing armed robbers in Chicago, in Illinois. Can you tell me how many times is just right and how many times is too many?
 
The one last night was in a convenience store at the time. He and his friend had gone into the store to buy soda, and they hid as the robber stuck his gun in the face of the store clerk and began counting down.
 
Do you give classes in hiding? Wait, that can’t be right, cause many kids get found anyway, and it’s not always easy to stay quiet if your heart is thudding and you’re afraid. Maybe you give classes in what kids should do if they find themselves around guns. No, that’s not right. State Sen. Annazette Collins proposed that idea, to keep kids safe and deglamorize firearms, and she was roundly trounced for the idea.
 
[. . .]

Read the whole thing.

(The author’s Facebook page is here.)

So, here’s a NYTimes story [h/t Environmental Economics] about three separate groups filing environmental lawsuits blocking a solar thermal project in California. The three groups filing the lawsuits are: The Sierra Club, the First-American Quechan tribe and “a labor group.”

Each group gives a different rationale for blocking the project and I think it reasonable to ask what each group’s real agenda is. (But let’s remember this is the NYTimes reporting here, who are not exactly known for their competence.)

The Sierra Club’s rationale is given as:

“The task at hand is to bring clean energy online, which includes large-scale renewables,” said Bill Corcoran, the western regional director for the Sierra Club’s Beyond Coal campaign in Los Angeles. “But as we looked at all of the fast-track projects, Calico was far and away the most harmfully located project.”[emp added]

Okay, firstly, that statement seems to imply that most or all of the alternative-energy projects are “harmfully located” and this one is just the worst of the lot. Secondly, the statement doesn’t say that the harm is actually of an unacceptable level. Does the project really threaten the environment to any great extent? Does this lawsuit really give Sierra Club donors the most environmental bang for their donated bucks? The statement really leaves the impression that the Sierra Club is more interested in finding an excuse to file a lawsuit, any lawsuit, than they are in protecting the environment. Is the Sierra Club more interested in brushing up its radical environmental creds or drumming up donation-generating publicity than they are in targeting the worst environmental damage?

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Revolution against tyranny has blazed across North Africa and Arabia, as President George W. Bush envisioned in his idealistic second inaugural address. The conflagration was lit on December 17, 2010 by Mohamed Bouazizi of Tunisia, who had been denied a license to sell fruits and vegetables from his cart because he didn’t pay a bribe. A policewoman confiscated his vegetable cart and his wares. He was beaten when he protested, and on December 17 the humiliated young man set himself on fire. He died a few weeks later. Contagious demonstrations in Tunisia quickly followed the fateful denial of Mr. Bouazizi’s liberty.

The liberty whose denial inspired the overthrow of regimes in Tunisia, Egypt and, with any luck, Libya was economic liberty, or the right to earn a living. Although that liberty was obviously important to Mr. Bouazizi, the left regards economic liberty, to the extent it regards it as a liberty at all, as a lower order of liberty.

So do the federal courts. Economic regulations get minimal scrutiny under the Equal Protection and Due Process Clauses of the Constitution. The Takings Clause and the Contract Clause, which were intended to protect property rights and contract rights, have been enfeebled by the Supreme Court.

The division between economic liberties and other liberties is not one the Founders of this republic would have understood. Our revolution too was provoked by economic depredations. The interrelation of liberties is hard to miss. Free speech is much more difficult to exercise effectively without property that individuals rather than governments control.

State and local governments do most of the suppressing of the right to earn a living and the confiscating of vegetable carts in the United States. Conservatives who believe in federalism should be careful not to romanticize the states. From the perspective of an entrepreneur, another layer of regulation is no more felicitous merely because it emanated from a state capital.

States require licenses for all manner of innocuous occupations. Although consumer protection is the usual excuse, little is accomplished by occupational licensing beyond preventing people from getting a start or a new start in life and restricting the supply and increasing the cost of a given type of professional.

The District of Columbia, which unfortunately for its residents possesses home rule powers, recently decided to require wildlife control operators (people who trap varmints infesting houses) to be licensed. As is often the case with occupational licenses, wildlife control operators will have to take a class, pass an exam, and pay a fee. But in addition, the legislation eccentrically requires licensed wildlife control operators to capture and remove animals in ways that aren’t lethal, painful, or even “stressful” for the animal.

While states are the primary malefactors when it comes to occupational licensing, the Obama administration, of course, would not want to miss out completely on a means of controlling economic activity. And so the Internal Revenue Service has recently adopted regulations requiring tax return preparers who aren’t lawyers or CPAs to obtain a tax preparer identification number and to pay a user fee. The IRS intends to require competency testing and continuing education of tax return preparers.

On a larger scale of licensing, the Obama administration has capriciously denied permits to businesses that want to produce energy. Last month the Environmental Protection Agency vetoed a water permit that the Army Corps of Engineers had granted to a West Virginia coal mine in 2007 after nearly a decade of study.

The administration has imposed a series of unlawful moratoria on drilling in the Gulf of Mexico. Companies servicing offshore oil and gas drilling argued before U.S. District Judge Martin Feldman, a fiery intellectual, that the first moratorium violated the Administrative Procedure Act because it was arbitrary and capricious. Writing that he was “unable to divine or fathom a relationship between the [government’s] findings and the immense scope of the moratorium,” Judge Feldman issued a preliminary injunction against the moratorium.

The Interior Department quickly issued another moratorium, which it withdrew in October. Since then, the administration has imposed a de facto moratorium by not granting any permits for deepwater drilling in the Gulf. Finding those evasions to be in contempt of his preliminary injunction, Judge Feldman ordered the government to pay the companies’ attorneys’ fees. And last week he ordered the Bureau of Ocean Energy Management to act on five pending permit applications within thirty days, saying that the “permitting backlog is increasingly inexcusable.” So far, neither the court’s order nor soaring oil prices have awakened the Bureau of Ocean Energy Management.

Perhaps the ardor for freedom will circle back from the Middle East to the United States without any unemployed miners or offshoremen having to set themselves afire.

Per wiki, the definition of a wildcat strike:

A wildcat strike action, often referred to as a wildcat strike, is a strike action taken by workers without the authorization of their trade union officials. This is sometimes termed unofficial industrial action.

Lets start calling the teachers’ “sickout” what it really is. A wildcat strike. Madison schools will be closed for the third day in a row. Milwaukee schools are now closed. In what may be an interesting indicator, many of the more rural school districts are open today, where they were closed yesterday. I have a feeling that those in the outlying areas who aren’t as beholden to the teachers’ unions as the folks in and around Madison have made it pretty clear that they are not happy.

I have heard that there will be counter protests today and/or Saturday. I may be down there Saturday afternoon after work.

There are rumors that there may be class action lawsuits brewing against the teachers’ unions on behalf of the parents. I hope some of the school districts have the stones to hold the teachers’ feet over the fire for breaking their contract due to the wildcat strike.

I certainly will help with any and all recall efforts and to bring back our missing legislators. Thinking about it on the way in to work this morning, I have essentially been disenfranchised, as my legislator is sitting in my hometown of Rockford as I write this, instead of representing me at the capitol. Whether I voted for him or not does not matter. His office has heard from me once already electronically. I will be mailing them a hardcopy letter today. His office staff will get to see my smiling face in the not so distant future. I will have to rehearse my lines and try to control my anger when I go there.

Rights talk pervades the litigation over California’s Proposition 8. The defenders of Proposition 8 point out that the Supreme Court has never recognized a right to same-sex marriage. Indeed, in 1972 the Court said that such a claim doesn’t even raise a substantial federal question. On the other hand, the opponents of Proposition 8, using the old trick of formulating a right at higher level of abstraction, claim that they are vindicating the right to marry, which the Supreme Court has recognized as a fundamental right.

A right that’s overlooked in the whole discussion is the right to self-government, a right recognized in the Declaration of Independence and in the California Constitution, which says, “All political power is inherent in the people. Government is instituted for their protection, security, and benefit, and they have the right to alter or reform it when the public good may require.” Cal. Const. art. II, §1. This right is contracted to extent the courts command governments to expand the right to get a marriage license beyond that authorized by the people.

The voters of California began exercising their right to alter or reform the government as it relates to marriage in 2000, when they adopted a proposition to ensure that the state legislature couldn’t repeal the California Family Code’s restriction of marriage to opposite-sex couples. The proposition added this provision to the Family Code: “Only marriage between a man and a woman is valid or recognized in California.” Only marriage and nothing else?  A lease between a man and a woman, a contract for sale between a man and a woman aren’t valid or recognized in California? I assume they are. Misplacement of the word “only” is such a common draftsman’s error that nobody notices it anymore, and everybody knew what the proposition was supposed to mean, including the California Supreme Court, which held it violated the California Constitution. In re Marriage Cases, 183 P.3d 384 (Cal. 2008).  

The people responded by passing Proposition 8, putting the same unfortunate language in the California Constitution. Ironically they put it in article I, the article entitled “Declaration of Rights.” To be precise, they put it in article I, section 7.5. But the provision is never referred to as article I, section 7.5 or as section 7.5—just Proposition 8—as if it weren’t really part of the constitution.

Attorney General Jerry Brown adopted that attitude in challenging the validity of Proposition 8. He argued that Proposition 8 violated the California Constitution, forgetting that Proposition 8 was the California Constitution. His argument, as well as a more serious argument based on election law, was rejected by the California Supreme Court.

The stakes were raised when Ted Olson, the brilliant solicitor general in the second Bush administration, and David Boies, his former opponent in Bush v. Gore, brought on behalf of disappointed gay couples (“Plaintiffs”) a challenge to Proposition 8 based on the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the U.S. Constitution. In their well-funded lawsuit, Perry v. Schwarzenegger, they sued in federal court Gov. Schwarzenegger, Attorney General Brown, two public health directors, and the clerks of two counties.

All of the defendants except the attorney general took no position on the merits of the case and refused to defend Proposition 8. The attorney general did them one better and conceded the unconstitutionality of Proposition 8. I’m not sure how that fulfilled the attorney general’s duty to prosecute or defend all actions in which a state officer is a party.

The case would virtually have been a collusive lawsuit had the people who proposed Proposition 8 (“the Proponents”) not intervened. At trial, the government defendants put on no case; the Proponents, a weak one. Most of the Proponents’ witnesses decided not to testify because the case was going to be televised. (Intimidation of opponents has been a hallmark of the gay marriage movement.) “Proponents’ evidentiary presentation was dwarfed by that of the plaintiffs,” sniffed Vaughn Walker, the presiding judge.

After a long trial, Judge Walker issued a long opinion. There he quarrels with the Proponents’ experts and gives their opinions little or no weight but enthusiastically embraces the opinions of the Plaintiffs’ experts.

That selectivity led to Judge Walker’s notorious findings of fact. Eighty of them. Some are just sloganeering (“Proposition 8 places the force of law behind stigmas . . . (#58); “Proposition 8 perpetuates the stereotype . . .” (#67)). Some are awfully subjective “facts,” while others aren’t facts at all. Number 61 says, “Proposition 8 amends the California Constitution to codify distinct and unique roles for men and women in marriages.” That’s a matter of law not fact, and it’s patently false on the face of the provision. In number 77, he lurches into theology: “Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians.” Whatever truth there may be to this “fact,” the federal judge’s disparagement of the religious beliefs of his countrymen provides an ominous glimpse of the religious persecution to come when the new marital regime is combined with human rights ordinances.  

With his findings of fact in hand, Judge Walker careened through some conclusions of law and then, looking into the mirror that is the Fourteenth Amendment, found Proposition 8 unconstitutional. 

Of course, the government defendants did not appeal. That was to be expected, but it created a problem for the Proponents. The Proponents appealed, claiming that they had standing to appeal just as state legislators do if a law they passed is struck down. After hearing an hour’s worth of argument on standing and another hour’s worth on the merits, the U.S. Court of Appeals for the Ninth Circuit issued earlier this month a certified question to the California Supreme Court asking it whether California law gives the official proponents of an initiative an interest or authority “to appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.”

The Ninth Circuit wondered whether the governor “may, consistent with the California Constitution, achieve through a refusal to litigate what he may not do directly: effectively veto the initiative by refusing to defend it or appeal a judgment invalidating it, if no one else—including the initiative’s sponsors—is qualified to do so.”

Judge Reinhardt wrote separately to scold the parties for creating a problem they could have avoided. The governor and the attorney general could have eliminated the problem if either “had defended the initiative, as is ordinarily their obligation.” The Plaintiffs sued the clerks of only two of California’s fifty-eight counties and didn’t serve the rest with Judge Walker’s ruling. And the Proponents, for their part, could have gotten another clerk to intervene on their side. The judge declined to speculate on motives.

But one doesn’t have to speculate long to suspect that Plaintiffs’ counsel carefully restricted the defendants they sued in order to win an unopposed judgment and to shelter that judgment from appellate review. It would be truly extraordinary if a highly controversial case of great public significance could be rigged so that there was standing to conduct a trial but not an appeal.

If the Proponents survive the objections to their standing, they face two big problems on the merits. First, Proposition 8 leaves untouched California’s domestic partnership laws, which give same-sex couples the rights and duties of marriage but withhold the name of marriage, the “honorific designation,” as Judge Reinhardt called it. What that shows, according to the Plaintiffs, is that the only purpose of Proposition 8 is to insult gays and to label their relationships as inferior. They argued that since California allows domestic partnerships, it cannot claim that any substantial harm could come from allowing same-sex marriages because nothing of substance would change. If that’s true, then the benefits the state is supposed to derive from same-sex marriages, like an increase in adoptions, are also insubstantial, and the benefits that same-sex couples would derive are entirely sentimental.

Clearly, states considering domestic partnerships as a compromise should beware that they proceed at their peril.

Second, none of the advantages the Proponents put forward for heterosexual marriage seem to be threatened by homosexual marriage. Those advantages can be summarized like this. Because heterosexual couples have a natural ability to procreate, stabilizing their relationships in the institution of marriage benefits the couple, their children, and society. Maybe so, but, Judge Walker and the Plaintiffs triumphantly ask, how does excluding gays from that institution preserve heterosexual marriages or encourage heterosexuals to become monogamous and get married?

A philosophical answer to that question has been proposed recently, but not by the Proponents, who struggled with it. Finally, in the last few minutes of his rebuttal Charles Cooper, Proponents’ counsel, may have come up with a legal answer when he quoted from Johnson v. Robison, where Justice Brennan wrote, “When, as in this case, the inclusion of one group promotes a legitimate governmental purpose, and the addition of other groups would not, we cannot say that the statute’s classification of beneficiaries and nonbeneficiaries is invidiously discriminatory.” 415 U.S. 361, 383 (1974).

This turns the tables on the advocates of same-sex marriage, who always insist that their opponents prove a rational basis for subtracting same-sex couples from the institution. Robison suggests that isn’t the question: the question is whether adding same-sex couples to the institution promotes the legitimate governmental purpose that heterosexual marriage promotes. The Proponents could safely say that it doesn’t. The state has a legitimate interest in stabilizing relationships that have a biological tendency to produce offspring. Thus, the state has a rational basis for formalizing those relationships that it does not have for formalizing same-sex relationships.

Since the Proponents failed to demonstrate how allowing gays to marry damages heterosexual marriage, the argument I’ve suggested here should be given more prominence as the case proceeds, if anyone is left standing to raise it.

Israel’s military and technology are world class but its official efforts to defend itself rhetorically against its enemies range from nonexistent to maddeningly inept. This interview of Melanie Phillips by an establishment journalist provides a good overview of the problem. That the case has to be made at all shows how deep the rot is. (Caroline Glick is also generally good on this topic.)

(Thanks to AA for sending the link to the interview.)

The object shown is a governor for an engine. This device was invented by James Watt for use with his steam engine, and has been applied, in one form or another, ever since. It allowed the engine’s use in applications where precise speed control was essential, notably textile manufacturing, and was an invention of great economic and conceptual importance.

It strikes me that the role played by the legal profession and the financial industry is analogous to the role of an engine governor. Like the governor, law and finance are control systems; they are essential enablers and regulators of the activities of the rest of the economy. But also like the governor, the percentage of total system resources that they themselves consume should be reasonably small.

What would we think of a governor that scarfed up 30% of the horsepower of the engine that it was serving? Most likely, we would conclude that it was either poorly designed or inadequately maintained, or both.

There is no question that the legal and financial industries are both vital. Contracts must be drafted, disputes must be adjudicated, and capital must be allocated effectively. But the numbers of people in these industries, and the share of national income devoted to their compensation–along with related expenses such as buildings and computer systems–is perhaps excessive.

For discussion:

1)Would you agree that the legal and finance industries presently represent a more-than-optimal share of the overall economy?

2)If so, what factors have led to this situation? In particular, to what extent is it a function of market failure versus a result of unwise government policy?

3)What, if anything, should be done to correct the situation?

[ cross-posted from Zenpundit ]

[ note: all links are to youtube videos ]

The pianist Glenn Gould is celebrated for his ability to bring the different and at times positively oppositional voices in a fugue by Bach to our attention, so that we follow each one separately while hearing all at the same time as a single whole. What is less known is that he liked to sit at a table in a truck stop and listen to the different conversations at the other tables and booths, mentally braiding their pale or brightly colored threads of human together into an analogous tapestry — one voice harmonizing with or conflicting against another, here a new subject introduced, there an echo of an earlier idea heard in a fresh context, with the murmurings of waitresses punctuated by the kaching! of the cash register, the hydraulic hiss of a door closing — conversation as counterpoint.

Organizations and individual alike, we all have different and at times dissonant voices, and strive to bring them to some kind of resolution. The many stakeholders debating an issue in town halls, blogs or letters to the editor, the many drives within each one of us, idealistic, hopeful, defeated, paralytic, angry, evasive, sluggish, vengeful, curious, alert, defiant, all have voices, all constitute an experience of polyphony, a “music of many voices”, in point counter point.

One of my interests is to find a way to score these many fugues, these musics of meaning.

My DoubleQuotes, then, can be considered as two-part inventions, attempts to show the multiple tracking of the mind — whether of a single individual, as in this case, or of a group, a community, a world divided – so that something of the music begins to be visible, and some of the dissonances can move towards necessary resolution.

*

*

I believe there is unresolved irony between these two statements, made on the same day by Philip J Crowley, the US State Department’s Assistant Secretary, Bureau of Public Affairs – but each has its reasons, and there are arguments to be made for both transparency and opacity, diplomacy and publicity, secrets and revelations.

Between them lies the possibility I think of as a virtual music of ideas.

*

Bach published a series of two-part inventions, BWV 772–801, and wrote of them that he intended to offer them as an honest method

by which the amateurs of the keyboard – especially, however, those desirous of learning – are shown a clear way not only (1) to learn to play cleanly in two parts, but also, after further progress, (2) to handle three obligate parts correctly and well; and along with this not only to obtain good inventions (ideas) but to develop the same well; above all, however, to achieve a cantabile style in playing and at the same time acquire a strong foretaste of composition…

Later comes the Art of Fugue.

In reading this story about Blagojevich getting a hung jury on all but one charge, this bit leapt out at me:

But one juror, a woman whom other jurors declined to identify, saying they wanted to respect her privacy, never budged in her opposition to convicting on the counts. She was unmoved by recorded calls in which Mr. Blagojevich and his aides spoke of possible jobs, donations, even a White House cabinet appointment he might get after making his Senate choice.
 
Mr. Wlodek described her stance as “very noble,” adding: “She did not see it as a violation of any laws. It was politics. It was more of conversations of what-ifs.”[emp added]

This makes me wonder if Blagojevich got off owing to the political culture of Illinois which assumes that a high level of corruption is simply how politics and government get done. With such a culture, it might seem unjust for a juror to convict Blagojevich for actions which are expected of all politicians. I mean, who expects that elected officials will have long conversations about “what-ifs” that at least sound a lot like discussions about corruption?

The arcane complexity of the legal charges is definitely a problem. It’s very much like the trouble that lay juries have in evaluating cases concerning complex and technical financial, technological or scientific evidence. We expect people to get an advanced specialized education and then get years of experience before making major decisions in technical fields, and yet we expect lay juries to choose between two dueling experts based on just a few days of exposure to the issues at hand.

However, corruption would seem to be fairly straightforward in most cases and wouldn’t require a lot of legal hair-splitting. Was the complexity of this case really the challenge here, or was it really a matter of a culture so broadly tolerant of corruption that only the most extreme and explicit acts of corruptions will draw legal censure? Was the complexity of the judge’s instructions itself a result of this culture?

Perhaps some readers from Illinois can pitch in with insight.

Since approximately day two of his administration, President Obama has boasted about what he has done since “day one.” Actually, day one was relatively harmless. It was only a half day, and Obama spent it delivering another vapid speech, having a long lunch, and reviewing a boring parade. But on day ten, January 29, 2009, he began his project of giving employers additional reasons not to hire American workers. On that day he proudly signed the Lilly Ledbetter Fair Pay Act, which allows employees more time to sue employers for alleged pay discrimination.

And from that beginning, the project of exacerbating unemployment and prolonging the recession has been carried out on a broad front of initiatives. The government has borrowed capital and diverted it to less productive uses under the guise of stimuli. Complex new mandates and penalties regarding employee health insurance have been imposed on employers. Further uncertainty has been created by thousands of pages of impending financial legislation and rules and by the possibilities that new energy taxes will be imposed and that President Bush’s tax cuts will soon expire.

The Department of Labor’s Wage and Hour Division (WHD) has pitched in and done its part. Under the direction of Deputy Administrator Nancy J. Leppink, a stereotypically narrow and humorless bureaucrat, the WHD has taken an adversarial approach to employers. The WHD has hired 250 field investigators to police employers and expects to hire 90 more with funds allocated in the Department of Labor’s fiscal year 2011 budget.  At a “stakeholder forum” in May, Leppink said she couldn’t understand why the WHD should, as it had in the past, give a break to employers who come forward and acknowledge past violations.

In March the WHD announced that it was ending its longstanding practice of issuing opinion letters responding to questions from employers about how labor laws apply to their situations. The questions frequently concerned whether a type of job would be classified as exempt from the overtime requirements of the Fair Labor Standards Act (FLSA). Rather than responding in opinion letters to employers’ questions about their specific situations, the WHD now issues “administrator interpretations” setting forth general interpretations of laws and regulations. The WHD claims that issuing administrator interpretations instead of opinion letters “will be a much more efficient and productive use of resources,” but so far it has only issued three of them.

While the WHD has ended its service of providing employers with opinions on the classification of their employees, it is preparing to issue regulations requiring employers to render opinions on that subject to the WHD. Next month a notice of proposed rulemaking is expected to be issued on rules under which”[a]ny employers that seek to exclude workers from the FLSA’s coverage will be required to perform a classification analysis, disclose that analysis to the worker, and retain that analysis to give to WHD enforcement personnel who might request it.”  This shift is consistent with the adversarial objective the WHD acknowledged in its Congressional Budget Justification: “WHD’s regulatory initiatives will be undertaken with an objective of determining where there are opportunities to shift the burden of compliance to the employer. . . .”

And so the businesses that the administration would like to induce into hiring people become the enemy if they do. On the bright side, however, the WHD has adopted a cheerful new slogan, “We Can Help.” They surely can, but if only they wouldn’t.

and, unfortunately, broadly applicable:

The most serious allegation in the whole affair is that the certain officials countenanced a crime because they wanted to. The most concentrated expression of tyranny is malice in the service of caprice.

Belmont Club

I’ve never been a fan of the company called BP. For one thing, I thought their slogan, “Beyond Petroleum,” was political pandering of a very low sort, and also disrespectful to their own employees, the vast majority of whom were and are engaged in petroleum-related activities.

But regardless of my feelings about this corporation, I am increasingly appalled at the lynch-mob spirit behind the attacks on it by the Obama admninistration…in particular, the strident demands, while the crisis is not yet resolved, for increasingly vast sums of money in compensation for the damages caused. (See this, for example)

In the United States, we have an established mechanism for establishing damages in situations like this. It is called the court system, and it involves things like laws, precedents, contracts among the companies involved (and BP was not the only company involved here), and this little thing called evidence. For all of this, Obama seems to want to substitute something like a civil version of the constitutionally-prohibited bills of attainder, though in this case driven exclusively by the executive (him) rather than involving legislative process.
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