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Doomed to repeat?

Thursday, September 4, 2014

The New York Times reported yesterday morning that the latest beheading of an American journalist “raised the pressure on the president to order military strikes on the group in its sanctuary in Syria.” The Boston Globe had an article that made a similar point.

I've criticized Obama quite often, but on foreign policy he has generally done a good job, as he has up to now, kept us out of major conflicts. (Has anyone kept count of the number of wars we'd be in right now if we we're fighting everywhere John McCain and Lindsay Graham think we should?) Hopefully, Obama will resist the calls to get us involved in Syria. The desire for war may be intense among the punditocracy and the calls for action popular with Republicans in Congress (although they are of course resisting a vote on the issue), but the American people don't seem especially hot to send their sons and daughters over there.

If we do go, then they'll have fooled us twice, by a charitable count. Osama bin Laden couldn't have gotten a better reaction from the U.S. had he written the script himself. We spent billions of dollars, thousands of lives and for our trouble we got an Iraq headed toward partnership with Iran or worse and, in the Arab world, enhanced reputations for the people we are now being pressured to attack. Are they shaking in their boots? No, all the signs are that they want us to attack. Sure some of them might be killed, but they don't care about that. In the long run, they win by provoking us into attacking them, and we lose, by getting mired in yet another un-winnable war. Let them fight each other to the death. We should stay on the sidelines.

As to the journalists, the beheadings are of course barbaric. But journalists who go into those areas assume certain risks. We can't let the fate of individual Americans who put themselves in harm's way dictate our foreign policy. The fact is, the most effective way to deal with these people is to ignore them. That may not be entirely possible, but the closer we can come to that policy the better off we'll be.

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The Supreme Court: Always entitled to its own opinion, not entitled to its own facts

Tuesday, September 2, 2014

I follow what the Supreme Court is doing, but I don't read their decisions, unless I must for some work related reason. My blood pressure is in a very good range, but why take chances. Even if I did read their decisions, I'm not sure I would have caught on to this.

A little background. The Supreme Court is an appellate court (except in those rare instances where it has original jurisdiction). Appellate court's do not find facts. They take the facts found by the lower court and decide whether the law requires a different result based on the facts found. As a crude example, if an appellate court is hearing an appeal of a case involving a motor vehicle accident, and there was sufficient evidence that a traffic light was green at the time of the accident, the court cannot decide that it was in fact red. For the most part, an appellate court cannot fill in factual gaps by taking new evidence or engaging in surmise. If, for instance, there was no evidence about the traffic light at the time of the accident, the court cannot assert as fact that it was green. There are exceptions. It is not necessary, for instance, that a litigant prove that a human being deprived of air will die. The court can take “judicial notice” of some facts.

This Supreme Court has apparently been accepting factual assertions contained in amicus briefs, even when those briefs cite unreliable sources for those facts, or no source at all:

Some of the factual assertions in recent amicus briefs would not pass muster in a high school research paper. But that has not stopped the Supreme Court from relying on them. Recent opinions have cited “facts” from amicus briefs that were backed up by blog posts, emails or nothing at all.

Some amicus briefs are careful and valuable, of course, citing peer-reviewed studies and noting contrary evidence. Others cite more questionable materials.

Some “studies” presented in amicus briefs were paid for or conducted by the group that submitted the brief and published only on the Internet. Some studies seem to have been created for the purpose of influencing the Supreme Court.

…

In a 2011 decision about the privacy rights of scientists who worked on government space programs, Justice Alito cited an amicus brief to show that more than 88 percent of American companies perform background checks on their workers.

“Where this number comes from is a mystery,” Professor Larsen wrote. “It is asserted in the brief without citation.”

In a 2012 decision allowing strip searches of people arrested for even minor offenses as they are admitted to jail, Justice Anthony M. Kennedy cited an amicus brief to show that there are an “increasing number of gang members” entering the nation’s prisons and jails. The brief itself did little more than assert that “there is no doubt” this was so.

via The New York Times

The article implies that the phenomenon is not restricted to the conservative judges, who, indeed, have decried the practice when they are not themselves employing it. However, all the examples but one involve the conservatives, including the truly outrageous exemplars.

It would be a truly dangerous practice even if this were not already the most political court since 1795 or thereabouts. The fact is that it is very much the case that things “everyone knows” are often not true. That's why judicial notice should be used sparingly, and you certainly shouldn't take the word of a blogger or an unsupported assertion by a party or an amicus. I mean, even here, I try to provide links to reliable sources when I make factual assertions. The Supreme Court should be held to a higher standard than a blogger that nobody reads. In addition, as the article sort of points out, the opposing side often lacks the ability to take issue with facts asserted in amicus briefs, and is never on notice that the court will choose to rely on those facts to rule against it. (Also, I've never heard of citing a brief as authority for anything) If the fact in question was not at issue at the trial level, it should not be introduced at the appellate level, where it cannot be properly tested in the adversary process. It's bad enough that this court, even before Bush v. Gore was quite comfortable with making up the law, but it's truly frightening if it becomes very comfortable with making up the facts.

Yet another sign that the Republic is doomed.

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Woodstock Fair

Monday, September 1, 2014

My wife and I went to the Woodstock Fair this morning. Among other activities, we watched some of the sheep and cattle judging, but it occurred to me that there really ought to be a competition to judge among the Italian Sausages on offer. I am not exaggerating when I say that there were at least 20 stalls offering them. Anyway, herewith a few pictures, starting with the giant pumpkins. It does my heart good to know that we in Connecticut are second to none in this field. The world needs half ton pumpkins, and we have them in quantity.

Back to the Sheep

Finally, a little Connecticut pride.

 

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Both sides always do it

Monday, September 1, 2014

A great example of the “both sides are at fault” meme in today's Boston Globe.

The facts are really quite simple. Republicans have pulled out all the stops to obstruct Obama's diplomatic appointments. It matters not whether any particular nominee arouses their wrath; they will oppose anyone. Those are the facts on the ground, and they really won't go away, but they can always be ignored, which is what the reporter in question valiantly does in this piece.

It is not the Republicans that are at fault, it is “the Senate”. Republican obstructionism is portrayed as a by-product of impersonal forces that no one can truly control. Republican attempts to blame Democrats for their own obstructionism are passed along with nary a comment about their irrationality. We are supposed to accept that Republican obstruction is justified because Harry Reid changed the Senate rules to prevent even more thoroughgoing obstruction. This sort of thing has real consequences over time. The Republicans can avoid accountability for their crimes as long as they can count on a media that blames both sides.

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A Labor Day Lament

Sunday, August 31, 2014

Labor Day approaches, a day to honor the working person, who, nowadays, increasingly labors for the sheer emotional satisfaction work can bring, considering that the fruits of his or her labor increasingly go to the capitalist or the CEO. And surely labor can be its own reward, but when, increasingly, one's labor becomes more and more unrewarding, what can anyone do but exercise the right of every American to complain and blame his problems on someone (or everyone) else.

I have been writing this blog since the beginning of 2005, and it has sometimes been a labor of love, but lately it has been much labour lost. What left but to complain and blame someone else, namely Republicans, who, we all know, are to blame for everything.

Posting has been light of late. Partly this is due to personal factors; vacations, houseguests, etc., but also due to a decline in appropriate subject matter, or, more accurately, a decline in subject matter that can provoke original thought, for what's the point of repetition, particularly when you're talking mostly to yourself anyway. My iPad is littered with un-posted stuff that doesn't even measure up to the low standards of this blog.

When I started, the idiotization of the Republican Party was a newly recognized phenomenon, if not exactly a new phenomenon, dating as it does from the election of Saint Ronald. Pointing it out, skewering idiot Republicans, and mocking their hypocrisy and corruption was fun, because I sort of got in at the beginning, when a reasonably high percentage of the American people were just catching on to what was going on in the party of Lincoln (he who spins in his grave). One felt one was performing something of a public service by pointing out the hypocrisy, stupidity, irrationality and corruption that is at the center of the Republican Party. But all of that has been said a million times, and what's worse, modern Republican politicians are becoming such caricatures that analysis is useless. Has a Republican made a statement lately that makes no sense, flies in the face of well established science, reveals his or her status as a corporate pawn, or is saturated with bigotry? Is water wet?

Sure, there's always the beltway media, corporate Democrats, religious fundamentalists and the Catholic Church. But the same reasoning applies, though I admit not enough has been written to expose our PR pope. I miss Joe Lieberman. He was always good for some fresh invective. Don't get my wrong, I'm not blaming those folks for my woes. It's an article of faith here that Republicans are at fault for everything, but they're not helping. I mean, why even bother to skewer assholes like David Gregory?

Anyway, tomorrow is a day set aside to honor the poorly compensated drudges that 99.9% of us have become. Spare a thought for the uncompensated blogger, who struggles to mock a world so obviously gone mad that comment is superfluous.

Don't get your hopes up though. I intend to soldier on.

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There’s still some bargains out there

Tuesday, August 26, 2014

The price of everything is going up (okay, not really, I know inflation is actually quite low, but lets put that aside), but the price for buying politicians has stayed remarkably low and stable. In fact, it may even be declining.

Politicians can be bought remarkably cheaply, considering the return on the investment. Consider our unlamented former governor, John Rowland. He steered millions in state contracts to his bribers, and what did he get? Some free repairs to his house. But Rowland, inexpensive as he was, was enormously costly compared to Chris Christie's New Jersey government. First, let's take a look at the return on investment:

David Sirota has carved out a much-needed niche lately by poking around in the unseemly deals between public pension funds and Wall Street predators, and he brings yet another scoop, this time in New Jersey:

Gov. Chris Christie’s administration openly acknowledged that more New Jersey taxpayer dollars were going to land in the coffers of major financial institutions. It was 2010, and Christie had just installed a longtime private equity executive, Robert Grady, to manage the state’s pension money. Grady promoted a plan to put more of those funds into riskier investments managed by Wall Street firms. Though this would entail higher fees, Grady said the strategy would “maximize returns while appropriately managing risk.”

Four years later, New Jersey has secured only half the promised results. The state has sent more pension money to big-name Wall Street firms like Blackstone, Third Point, Omega Advisors, Elliott Associates and Grady’s old firm, The Carlyle Group. Additionally, the amount of fees the state pays financial managers has more than tripled since Christie assumed office. New Jersey is now one of America’s largest investors in hedge funds.

The “maximized returns” have yet to materialize… Had New Jersey’s pension system simply matched the median rate of return, the state would have reaped roughly $3.8 billion more than it did between fiscal years 2011 and 2014, says pension consultant Chris Tobe.

…

The above-average costs for New Jersey are a direct result of Christie administration officials moving more pension money to Wall Street firms. The management fees those firms charge are far more expensive than the fees for passive index funds and the costs associated with equities being managed by in-house pension staff. Investments with Wall Street managers comprise less than half of New Jersey’s pension portfolio — but those investments’ attendant fees account for 96 percent of the pension system’s total overhead expenses, according to State Investment Council documents […]

via naked capitalism citing International Business Times.

Well, we all know the whole point of Wall Street is to make sure the rest of us get less and they get more. But bear in mind, we're talking billions skimmed from taxpayers here, and guess what it costs to get in on the action:

This amounts to Christie funding his presidential ambitions with New Jerseyite’s taxpayer money. He funnels that money to Wall Street managers, and they recycle a chunk of it back to him and his causes. As Sirota points out, the donations line up with when the firms got the contracts to manage the pension money. In one case, a contract went to the venture capital firm General Catalyst Group right after one of their partners made a $10,000 donation to the state Republican Party.

$10,000.00? Even if we assume the General Catalyst Group has only been able to skim a million dollars (and that's probably a fraction of what it actually got), their investment in the Republican Party would have cost them only 1% of their eventual return. The money is getting recycled back to Christie, but all he's asking for is the chump change falling out of their pockets. Who says America isn't a great country?

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Stinkin’ to high heaven

Sunday, August 24, 2014

A few days ago I made some observations about the extent to which a New Jersey legal firm whitewashing Chris Christie's role in Bridgegate was churning the file (at taxpayer expense, of course). The fact is, that sort of thing is business as usual for that sort of firm, and though outrageous, was not necessarily an indicia of decline in the profession or society.

But this is rather emblematic of something seriously rotten in the republic:

When lawyers for Hewlett-Packard shareholders filed a lawsuit contending HP’s management and board “abdicated their duties” and engaged in “unlawful behavior” in the disastrous 2011 takeover of Autonomy, it looked as if we might finally find out what really happened.

Was it a huge fraud by top executives at the British software company, as HP has asserted in writing down nearly $9 billion of its $11 billion acquisition?

Was it incompetence at HP, which shelled out so much for a company that had been rejected by nearly every other potential buyer?

Or some of both?

How naïve to think that a shareholders’ suit would turn out to have anything to do with the truth, let alone any meaningful relief for HP’s long-suffering shareholders. If the plaintiffs’ lawyers in the case — led by the respected and well-connected San Francisco firm of Cotchett, Pitre & McCarthy — have their way in court next week, the questions will go unanswered. Not only that, the lawyers are essentially jumping ship, proposing to settle the suit and join forces with HP in its pursuit of Autonomy’s former executives.

In return, HP will pay the shareholders’ lawyers an $18 million retainer and up to a total of $48 million in fees.

What will the shareholders get? They’ll get no money. On the contrary, it’s their money HP will be spending on the lawyers’ fees. They’ll get no personnel or board changes. They won’t find out who’s to blame or what went wrong. What they will get are some corporate governance reforms, which HP needn’t disclose in any detail.

via The New York Times

I don't know if the plaintiff's lawyers will get away with this, but the mere fact that they think they can speaks volumes about the extent to which Wall Street ethics and thinking has seeped into the legal profession in particular (at least at the white shoe firms) and society as a whole.

First, lets take a step back and look at the lawsuit brought on behalf of the shareholders. HP paid huge bucks for a company (Autonomy), which turned out to be worthless. The HP Board claims it was defrauded. This may be true. However, it is by no means a defense, certainly not a complete defense, to the shareholders action. It is the job of the board to ferret out fraud when considering putting shareholder money into buying other companies. Certainly Autonomy, to the extent it continues to exist and has recoverable assets, is liable to the Board for its fraud, if fraud there be. But the shareholders should have two pockets to look to: Autonomy's, which may be a shallow pocket indeed, and the collective pocket of the directors and officers responsible for failing to detect the fraud, which pockets may be much deeper than Autonomy's. It may be legally irrelevant, but it is worth noting that those pockets have been systematically filled, over the years, with shareholder's dollars.

The shareholder's lawyers, if they win court approval for this transparent piece of bribery, will effectively deprive their clients of access to those deep pockets, in exchange for some meaningless “corporate governance reforms”.

The conflict between the lawyer's interest here and those of their clients is obvious. Even if the settlement had some independent merit, the $48 million dollar bribe in attorney's fees doesn't pass what we lawyer's usually call the “sniff test”, but in this case we should probably call the stench test. We are supposed to avoid even the “appearance of impropriety”. Perhaps there are people who don't see an appearance of impropriety here, but most of them are probably spending their days in front of computer screens, coining money by manipulating stocks in a rigged market.

I've been around a while now, and I have no illusions about the legal profession as a whole. There are some very good people in the profession, and there are some who are as only as good as they need to be. But I am pretty confident that even the latter would have shied away from proposing something so blatant as this deal in open court ten or fifteen years ago. A decent respect for the opinion of mankind would have led them to conceal the real deal, and construct a more plausible settlement for public consumption. This deal announces to the world that the Wall Streetization of the upper reaches of the legal profession is complete. I'm no expert on the period, but it's hard to believe this sort of thing would have been tolerated in the Gilded Age, the last time that the government was so firmly in the hand of the .01%. Harking back to Loudon Wainwright's classic, this is not just one dead skunk in the middle of the road; this is a whole clan of them, truly stinking to high heaven.

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Nice work if you can get it.

Tuesday, August 19, 2014

(Yes, I know I’ve used this title before. )

This is really quite extraordinary. I am a jealous guy. The law firm that represents Chris Christie on the taxpayer's dime has made a small fortune (Well, for most of us, a large fortune) off of a case that does not yet even exist.

According to documents released last week, the law firm  hired by Governor Christie to deal with his legal problems concerned Bridgegate has billed taxpayers $6.51 million for work through April.  Gibson Dunn & Crutcher was hired by Christie to defend him and his office with the firm’s most notable achievement being the production of a highly contested report that exonerated Christie from any wrongdoing. Yes, the law firm has been paid millions in taxpayer dollars to produce a report that says their client is innocent.

Gibson Dunn originally proposed billing the state of New Jersey $650 an hour but eventually agreed to $350 an hour.

The firm submitted bills to the Attorney General’s Office that said in March it had 59 people working on the case and that they charged the state $2.49 million in fees. One lawyer two years out of law school billed for 342 hours that month — or an average of 11 hours every day in March. His taxpayer tab was almost $120,000.

Friday’s disclosure means that the lawyers representing Christie’s office, his staff and those working for the legislative committee investigating the scandal have charged taxpayers $7.87 million, according to bills released so far.

via Firedoglake citing NorthJersey.com.

I truly admire that associate, and I'm sure she or he is partnership material. If he or she can survive, that is. 11 hours a day, assuming not a single day off. Many people who practice law would assert that it is physically and mentally impossible to spend that much time productively doing legal work. More astounding: all of it performed on one case, and wouldn't you like to know if that eager beaver billed time to other files during that marathon month.

Inquiring minds want to know how anyone could fill all that time, considering that there was no actual pending litigation and no adversary, though potential adversaries abound.

But the heroic associate's feats are dwarfed by those of the firm as a whole. At the $350/hour rate they agreed to charge, the total bill suggests that the firm has billed more than 2 and a half years of time to the case. Lets be generous and assume 10% of those billings are for reimbursement of expenses (those lunches don't come cheap). That brings the total expenditure of time to just below 2 and a half years. Even Ken Starr worked more efficiently than that.

It would certainly be interesting, and should be someone's job, to look over those billings and try to figure out how they could possibly come up with enough legitimate things to do to justify churning the file to that extent. Perhaps New Jersey could hire another law firm to look into it.

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Hoist with our own petard

Tuesday, August 19, 2014

The Egyptians must have enjoyed this.

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Boys with Toys

Monday, August 18, 2014

Tom Tomorrow gets to the heart matter re: the militarization of the cops, in his most recent cartoon. There's no question that our racist culture allows the Ferguson police to have more fun with their toys than the cops who faced Clive Bundy, but the fact is that without those toys they wouldn't be able to reenact scenes from Star Wars on the streets of Ferguson. One can't quite imagine British bobbies, faced with the same situation, and armed only with nightsticks, acting in quite the same way. They have to get their way by wielding moral authority, which means they also have to show respect to the people they are policing. All those toys change the equation; the cops are invulnerable behind walls of steel and armor.

Sort of like storm troopers.

Exactly like storm troopers.

On a much less harmful level we've seen this sort of thing take place in our fair town of Groton. We have nine fire districts in Groton, manned for the most part by a mix of volunteers and paid staff. Each fire district sets its own taxes, which are added to the town's tax bill. The fire district component of the average tax bill is relatively small in proportion to the whole, so people tend to ignore it, and ignore the meetings at which the tax rates are set and the budgets are passed. As a result, no one watches (except when things get extreme) while the boys fill their toy chests with all kinds of cool equipment, which, who knows, might someday be actually needed in the event of a super catastrophe. We have, by reliable accounts, more fire equipment than the City of New Haven. Cops are the more or less evil twins of firefighters, and they've been given an almost bottomless toy chest by the federal government, chock full of toys that are totally cool and enable them to live out their fantasies, which they are, in fact, taught to believe should be standard operating procedure (Watch the video at the link). The Ferguson cops probably truly believe that all that military equipment is truly needed to meet the threat posed by an unarmed, mostly peaceful crowd (who are mostly black, after all). All those toys and a chance to use them. A situation guaranteed to bring out the criminal that, as Mick Jagger observed, lurks in every cop. (Well, not every cop, but many. I can think of some noble exceptions.)

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