Skip to content

Legal Acumen

Wednesday, April 1, 2015

Who knows, maybe this is Steve Beshear’s way of taking a fall:

Kentucky Gov. Steve Beshear’s administration is arguing the state’s ban on same-sex marriage isn’t discriminatory because it applies to straight people, too.

“Kentucky’s marriage laws treat homosexuals and heterosexuals the same and are facially neutral. Men and women, whether heterosexual or homosexual, are free to marry persons of the opposite sex under Kentucky law, and men and women, whether heterosexual or homosexual, cannot marry persons of the same sex under Kentucky law,” the Democratic governor said in a brief filed with the Supreme Court on March 27.

via The Huffington Post

I like it. It’s one of those kinds of statements that immediately strikes you as making no sense at all, but it’s mind bogglingly hard to say why. A bit like grappling with Zeno’s paradox. In fact, I suggest someone go to the Supreme Court and try to re-open the Hobby Lobby case, for would not the above logic apply with equal force, to wit:

Obamacare treats the religious and non-religious the same and is facially neutral. Corporations and other employers, whether religious or non-religious, are obliged to provide insurance coverage to their employees that includes birth control, and corporations and other employers, whether religious or non-religious, cannot provide insurance that does not include birth control.

No, it’s not the same. Mine actually makes way more sense. Anyway, hats off to Beshear’s lawyers. It takes a lot of damn gall to put something like that in a brief, so give them credit for a certain form of courage. And who knows, given that they’re making the argument to people like Scalia, Thomas and Alito, that tortured logic may become the law of the land.

Filed in Lawyer stuff | | Comments (0)

Student strikes, modern edition

Wednesday, April 1, 2015

We need more of this:

Calling themselves the ‘‘Corinthian 100’’ — named for the troubled Corinthian Colleges, Inc., which operated Everest College, Heald College, and WyoTech before agreeing last summer to sell or close its 100-plus campuses — about 100 current and former students are refusing to pay back their loans, according to the Debt Collective group behind the strike.

They met Tuesday with officials from the Consumer Financial Protection Bureau, an independent government agency that has asked the courts to grant relief to Corinthian students who collectively have taken out more than $500 million in private student loans.

The Education Department is the group’s primary target, because they want the department to discharge their loans. A senior department official is scheduled to attend the meeting.

via Boston Globe

Their common complaint is that the education they got was worthless, and the Education Department had every reason to know that was so when it enabled Corinthian. How likely is it, however, that a Department headed by Arne Duncan would recognize that “for-profit educational institution” is an oxymoron.

There is an easy fix to this problem. Stop subsidizing for-profit schools. If they want to go into the business, fine. (Well, not really fine) They have no god given right to a subsidy. Unfortunately, this country doesn’t do easy fixes. They too often involve diverting the flow of money away from the pockets of the rich, and we wouldn’t want that.

Filed in Corporate Crime | | Comments (0)

Unrepresentative democracy, an American tradition

Monday, March 30, 2015

I am currently reading a biography of John Quincy Adams, by Fred Kaplan. Both of the Presidents Adams have gained in stature recently. JQ Adams, like his father, had some admirable qualities, mixed in with some faults that truly make the mind boggle. Franklin’s quote about the father seems applicable to the son. But that’s not what this post is about.

One thing Kaplan keeps returning to is something that receives far too little attention in most histories of the time: the pernicious working of the three fifths rule. It goes almost unmentioned in high school history, of course, or if it is mentioned at all it is passed off as a necessary compromise. Each slave was counted as three fifths of a person, thereby increasing the number of slave state congressmen and slave state electoral votes. Needless to say it never crossed the minds of those congressmen that they should take any note of the actual interests of these non-voting constituents. As a result, the two Adams presidents may have been the only presidents prior to Lincoln who were not creatures of the slave power in one form or another, and that includes the shame of my alma mater, Franklin Pierce of New Hampshire. Had each slave counted as zero people, the slave power would have had less power, the North would have predominated politically, and, ironically, the interests of the slaves themselves would have been better represented. Whether we could have avoided civil war is another matter.

This is all history of course, except we are now in the process of reinstituting a version of the three fifths clause for the second time in our history. The first time was after the civil war, when the South gained even more political power because each former slave now counted as a full person, meaning the South got yet more representatives and electoral votes, but since blacks were not allowed to vote they still went not only unrepresented, but repressed by their nominal representatives. That sort of ended with the Voting Rights Act, but we are bringing a variant back with the various voter suppression statutes that are being passed, all of which, I predict, will withstand Supreme Court “scrutiny”. I suppose one could argue that this particular variant of the three fifths rule is not as racist as its forebears, as it sweeps up not only the minorities against whom it is primarily aimed, but some poor whites as well. Whether that’s a virtue or a vice is pretty much beside the point.

So, throughout most of our history, the equal representation that we are taught is a prerequisite to representative democracy has been a myth, and that’s before you take the equally pernicious effects of gerrymandering into account. In all that time, the beneficiaries of the various devices I’ve mentioned above were, without exception, the slave power, the racists and the rich. Nowadays, of course, the Koch corporate types benefit as well. The issue really is the defining one of our times. Unless we can stop the voter suppression movement (and it may already be too late), we will lose any legitimate claim we might have to being a functioning representative democracy. For all intents and purposes, the country will be littered with rotten boroughs, all of them in the hands of the right wing.

Filed in Dysfunction | | Comments (0)

Quid meets quo

Friday, March 27, 2015

The bankers don’t like Elizabeth Warren and they’ve met with Democratic Party officials to tell them so:

JPMorgan representatives have met Democratic Party officials to emphasize the connection between its annual contribution and the need for a friendlier attitude toward the banks, a source familiar with JPMorgan’s donations said. In past years, the bank has given its donation in one lump sum but this year has so far donated only a third of the amount, the source said.

via Reuters via Daily Kos

I don’t know what kind of response they got, but it seems passing strange that the banks could make the quid pro quo so clear and no eyebrows get raised. I always thought these folks liked to preserve the facade that when they donated money they absolutely had no expectations of getting anything in return.

It would be nice if the Democrats told the banks to pound sand, as loudly as they could. They will always get less Wall Street money than the Republicans, so why not make a virtue out of necessity? Odds are that Warren is raising more money for the Democrats than the crumbs from the Wall Street table they can expect to get. Unfortunately, odds also are that the Democratic Party officials to whom the banks have been talking will fold like a cheap suit.

Filed in Corporate Crime, Corruption, Democrats | | Comments (0)

Editor wanted

Friday, March 27, 2015

I have noted in the past that whoever writes the titles for the articles in the New London Day has a rightwing bent, as the titles often give a conservative cast to articles that turn out to not quite say what the title implies. Whoever this mystery person is (and I admit I could be imagining things. No, I’m not), he or she sort of goofed up today. Try to figure out what this means:

Royals help lay to rest comeback King Richard III

I’ve been trying to puzzle it out, but it eludes me, even after reading the article.  (I couldn’t find the article on line.) I think maybe it means that the royal family in England participated in Richard’s recent reburial, and the “comeback” refers to some historical revisionism, there being the possibility that Shakespeare’s great play did the man a disservice. If that’s what the title means, it’s odd, because the royals (at least the queen) kept her distance.

Speaking of King Richard, I’ve read stuff on both sides of the controversy (monster or not-monster?) and I’ve come to the conclusion that a skeptical agnosticism is the proper position to take. History is written by the winners, after all. 

Filed in Ramblings | | Comments (0)

Saudi apologia

Monday, March 23, 2015

The New York Times has a rather remarkable story in today’s paper, telling us that Saudia Arabia’s “justice system” is not really all that bad, because some people who might otherwise get their heads or hands chopped off, don’t. Consider the case, the Times tells us, of Bandar al-Yehiya, who, Allah be praised, did not get his head chopped off after all:

Saudi Arabia’s justice system is regularly condemned by human rights groups for violating due process, lacking transparency and applying punishments like beheading and amputation. Criticism has grown as Saudi cases have made news abroad: a liberal blogger caned for criticizing religious leaders; activists jailed for advocating reform; a woman held without charge for more than two months for driving a car.

Such rulings have prompted comparisons to the Islamic State, which regularly beheads its foes and also claims to apply Shariah law.

But Mr. Yehiya was saved because of checks in the Saudi system on the use of harsh punishments. His case wound its way through a yearslong odyssey of law and tradition. Mr. Yehiya reformed in prison, sheikhs and royals appealed for his life, and he was ultimately spared by a daughter of the man he had shot dead.

Mr. Yehiya’s reprieve was the product of a justice system little understood outside the kingdom, one that is based on centuries of Islamic tradition and that prioritizes stability and the strict adherence to Islamic mores over individual rights and freedoms.

via The New York Times

The system is indeed merciful:

A Riyadh judge recalled a case of four thieves who had broken into someone’s living room and stolen the furniture, television and refrigerator. The crime met the conditions for amputation, but the judge allowed them to confess to a lesser charge and sentenced them to two years in prison and 100 lashes each.

Only a hundred? Why, they’re positively soft over there. What a kind and caring judge.

The point of the article is to favorably contrast our esteemed ally’s “justice” system with the “justice” meted out by our enemy, ISIS. The fact is, both systems are barbaric. And I fully realize that compared to most of the civilized world, we are also barbarians. You might say that American justice is to European justice what Saudi justice is to ISIS justice. The fact that we look good compared to the Saudis speaks volumes about just how bad their “justice” system is.

One must wonder about the motivations behind this article, which reads more like a PR man making the best of a bad situation than objective reporting. If the same humane system was used in, let’s say, Iran, it’s hard to believe the Times would be invoking “tradition” in order to justify it, or would be highlighting those parts of the system that somewhat mitigate its harshness, which, at least in Mr. al-Yehiya’s case may come down to something that is a universal in all societies: who you know makes a difference. The guy whose head is chopped off is the guy about whom “sheikhs and royals” remain silent. Same as it ever was.

Filed in Media | | Comments (0)

Underestimating the criminal mind

Sunday, March 22, 2015

Gretchen Morgenstern reports in this morning’s Times about a Public Citizen’s shareholder’s proposals to hold the top executives at Citigroup at least financially responsible for their criminal activities:

.. [The proposal] would require that top executives at the company contribute a substantial portion of their compensation each year to a pool of money that would be available to pay penalties if legal violations were uncovered at the bank. To ensure that the money would be available for a long enough period — investigations into wrongdoing take years to develop — the proposal would require that the executives keep their pay in the pool for 10 years.

via The New York Times

This proposal seriously underestimates the resourcefulness of the criminal mind. Citigroup is opposing the proposal, which is non-binding in any event, but these executives are smart people, sociopaths that they may be. It won’t be long before they see it as a gift.

When someone makes a proposal like this it is always best to game it out; try to figure out how you could get around it, or, better yet, turn it to your advantage.

Bearing in mind that their Boards of Directors are stacked with their fellow criminals, who are always willing to enable them, what are they likely to do? Each and every one of those directors would be easily convinced that withholding a dime in salary from their poor, misunderstood compadres would be terribly unfair, and that it is therefore only fair for the corporation itself to pick up the tab for the sequestered payments. The obvious solution is to simply increase the executive pay in an amount equal to the sequester. That way, if their criminal activity is uncovered, they basically lose nothing, while if they manage to escape detection, they get the money back, which essentially turns it into a bonus for a criminal job well done.

One can certainly understand the motivation behind these proposals, given the government’s decision to give these guys a “get out of even being considered for jail” card. But the fact is that so long as jail is off the table, no corporate governance rule is going to make any difference.

Filed in Corporate Crime | | Comments (0)

Sunday sermon

Sunday, March 22, 2015

This sermon is being written as I sit here on the first day of Spring, watching the snow fall. Our pilgrim fathers firmly believed that meteorological events were messages from god, expressing his anger or approval (usually anger, as it turned out)for the actions of man here on Earth. This attitude lives on. Witness the fact that Pat Robertson opined that Hurricane Katrina was god’s response to gay marriage.

So, I have decided to address myself to this issue: Why is god, if god there is, inflicting this never ending winter on us? What is he (ladies, I am cutting you a break here) trying to tell us. As I’ve noted in the past, I am uniquely qualified to address these deep theological questions, having earned a degree in theology from the nuns at Our Lady of Sorrows Grammar School.

First, let’s consider the basics. Given the western tradition of theology and philosophy within which all such questions should be addressed (we’re number one, after all), there are three possibilities with which we must grapple.

First, there is a god. That god is the all loving, merciful god of whom Jesus spoke, who, and this is puzzling, still feels it necessary, among other things, to randomly inflict pain and misery on people who’ve done nothing in particular to deserve it, stuff that even the Koch Brothers would think twice about inflicting, though in the end they probably would.

Second, there is a god. That god is the jealous, petty and arbitrary tribal god of the Old Testament, who encouraged his people to inflict needless suffering and death upon their enemies; those enemies, being in some instances, people who happened to live in places god’s people wanted to invade and take over with no justification whatsoever, except the sanction of their god. It is certainly easy to imagine this god inflicting this winter just for yucks, but we must give the devil his due (hmm, that may be an unfortunate choice of phrasing) and assume, at least for purposes of discussion, that if we are dealing with this god, he is trying to tell us something by inflicting this suffering upon his helpless people.

Third, there is no god. In that case, we are being told nothing, except that we reap what we sow.

Unfortunately, despite my advanced degree in theology, I can’t give a definitive answer to this question, but let us consider the possibilities.

First, let us assume the New Testament god. Obviously, he is a confused and conflicted character, since he himself has a great deal of difficulty acting in a manner consistent with his ideals, but giving him the benefit of the doubt, we must assume that he is sending a message that he is unhappy with us for not acting in a manner consistent with the teachings of his only begotten son. That is, we are not loving one another; we are not feeding the hungry, healing the sick, clothing the naked, etc. Well, he’s right about that, but if that’s his message, hasn’t he picked a rather funny way of delivering it? I mean, why not strike one of the aforementioned Koch Brothers with lightening, just for a start. That would certainly send a message, and a lot less ambiguously. In fact, that’s a real problem with both of the gods we are considering: they tend to speak rather cryptically. Sort of–almost–as if you can take their pronouncements any way you want. But getting back to cases, if that’s the message the kind and loving god is sending, why inflict this winter on New England when he’s given a relative pass to the rest of the country, including the South, where they are much more against loving their fellow man, feeding him, healing him (especially healing him) or clothing him. I mean we’re not perfect, but compared to them, we look pretty good. This is indeed a mystery. But then, god works in mysterious ways. So, we cannot exclude this god as being responsible for our woes. While we cannot understand why this self proclaimed loving and merciful god should inflict needless suffering on comparatively innocent people, it appears to be entirely consistent with his character. The poor guy means well, but he needs therapy.

On first blush, the Old Testament god appears to be the more likely candidate. Here’s a guy who would feel totally comfortable heading up ISIS or Al Qaeda. The term “arbitrary and capricious” comes to this lawyer’s mind. The term “psychopath” might occur to a psychiatrist. He stops at nothing to get his way, even though the point is often unclear. He insists on killing even when the thought appalls his followers. How do I know? The Bible tells me so. So, maybe Pat is right. Maybe we New Englanders (and the whole Northeast to a certain extent) are being singled out for punishment because we have not been sufficiently intolerant. I mean what’s with this gay marriage stuff, not to mention our relative reluctance to ignore the sick, take food from the hungry, etc. What argues the most against this theory is that, whether or not the punishment fits the crime, it has not been sufficiently brutal. It’s not his style. I mean it’s been pretty inconvenient, and some people have even died as a result of this brutal weather, but it just can’t stand comparison to killing everyone on Earth except a boatload of zealots; killing thousands of Egyptians for a situation they did not create, or any of the other atrocities that are documented at the link above. No, when this god sends a message he speaks loudly, carries a big stick, and smashes everything in sight.

That leaves the last alternative. You reap what you sow. We’ve ruined the earth’s climate and are suffering the consequences, and when you look at it that way, New England is making out fairly well. Cold winters suck, don’t get me wrong, and I’m sick of shoveling snow, but at least we’re not heading toward the years of drought that will be visited upon large swathes of our beloved land. But, in a way, this brings us back to god number one. Maybe he’s asking us to look at the whole thing in a global context, and interpret this as a reward, since ultimately almost everyone else is going to have it a lot worse than us. As a theologian I can’t outright dismiss that possibility, but I consider it unlikely. He’s just not capable of thought that nuanced. If there’s a god at work, I think it’s god number 2, and he’s just teeing up.

Filed in Religion | | Comments (0)

We’re number 1!

Friday, March 20, 2015

On a number of occasions I’ve noted that we here in the rational states lead the nation in a number of respects. We may, for instance, be godless, but somehow we also manage to have the lowest divorce rates and the lowest rates of births out of wedlock. But, being rational, I’m bound to admit it when we lead the pack from behind, as Connecticut does on a very important measure. We are the number one “sinkhole” state:

… California ranks as America’s 7th worst “Sinkhole State,” as the State Data Lab, a project of Truth in Accounting, calls them. It figures the taxpayer burden in each state by adding up the outstanding state debt, such as bonds, and the amounts that these states have promised to pay but haven’t funded yet, such as pensions and retiree healthcare benefits – the “unfunded liabilities.”

That these “unfunded liabilities” can bite viciously in all directions has been made clear by the municipal bankruptcies of Detroit, MI, Stockton, San Bernardino, Vallejo (all three in California), Jefferson County, AL, and others.

But taxpayers in six other states are far worse off in terms of these liabilities than we are in California. The taxpayer burdens in Connecticut and Illinois weigh over twice as much on each of their respective taxpayers as the burden in California. By comparison, the profligate state of California is practically a paragon of fiscal rectitude. So based on data by State Data Lab, here are the 10 worst “Sinkhole States”:

via Wolf Street

Read the article at the link, and you’ll see that we here in the Nutmeg State are not only number one, but we win (or should that be “lose”) going away.

How to explain our dismal record? Well, I don’t know, but that won’t stop me from conjecturing about some of the causes. Like many of the worst things that have happened in this fair land, I suspect bi-partisanship is the cause. Republicans don’t like to pay for things, as you may have noticed. Democrats believe in paying for things, in theory, but they’re quite shy about saying so in practice, and can’t get out of the defensive crouch they assume every time Republicans accuse them of wanting to raise taxes. Connecticut had, counting Lowell Weicker, Republican governors for 20 years before Malloy came along. Yes, Weicker gave us the income tax, but I don’t recall him using it to pay for things like pensions. In the face of gubernatorial resistance, the Democratic legislatures (Republicans have never had a majority, if I’m not mistaken) have made no attempt, if they were ever so inclined, to properly fund the pensions that the state promised to its workers. Why bother to do that if, when the shit hits the fan, you can just accuse those workers of being greedy and insist that they take a cut, like the present governor of Rhode Island (a purported Democrat) did to the workers there. Did someone say contracts? To borrow and distort a phrase from Leona Helmsley “contracts are for the big people”.

A prediction: When the day of reckoning comes, somehow we’ll find a way to make sure that certain pensions, for retired judges, legislators etc., come through unscathed. It will be the greedy run of the mill state workers that get the shaft.

Filed in Dysfunction, Local issues | | Comments (0)

Free speech for me, but not for thee

Tuesday, March 17, 2015

If you spend much time at left leaning blogs you have no doubt read more than one comment about the tendencies of right wingers to express rather strange ideas about rights. For example, it is a common argument on their part that gay marriage somehow tramples on their right to religious freedom, inasmuch as they apparently feel that their right to that freedom necessarily implies a right to impose their “values”, such as they are, onto others.

Is it good news or bad news that this sort of thing is not unique to the land of the the free, but is apparently widespread? In fact, there are folks abroad who make our Southern citizenry look like pikers in the victimization game. Consider this story, from today’s New York Times.

Apparently, the head of an Italian fashion house had this to say about in vitro fertilization:

Stefano Gabbana and Domenico Dolce have found themselves at the center of a viral social media campaign after the pair criticized in vitro fertilization and nontraditional families in an interview with the Italian magazine Panorama. “I am not convinced by those I call children of chemicals, synthetic children,” Mr. Dolce told the magazine. “Rented uterus, semen chosen from a catalog.”

“The family is not a fad,” Mr. Gabbana added. “In it there is a supernatural sense of belonging.”

Apparently this didn’t sit well with Elton John, who along with his husband has two “synthetic” children. He called for a boycott of the label.

The first reaction of the fashion kings was so breathtakingly shameless it no doubt made Pat Robertson jealous:

Mr. Gabbana struck back against Mr. John on Instagram, calling him a fascist and posting “Je Suis D&G” in an echo of the “Je Suis Charlie” cry after the attack in January on the French satirical magazine Charlie Hebdo.

That’s right. When Elton John used his freedom of speech to tell one and all he would no longer buy the overpriced crap these guys produce, he was just like the guys who killed those cartoonists for exercising their freedom of speech. But John’s freedom to speak isn’t the issue; the issue, according to Gabbana and Dolce, is their freedom of speech, the only freedom that counts. Like their brethren here in the states, they believe that when they speak, there should be no consequences. (This rule applies only to those on the right; those on the left who speak freely must not only suffer the consequences, but they must shut their mouths.) So, if we bring this thinking a bit closer to home, if I walk into a Bess Eaton and they are showing Fox News, not only must I not protest, I cannot turn around and get my coffee and carbs elsewhere. I must plunk down my money there, or I am depriving Bess Eaton (corporations are people remember) of its right to free speech. And lets not even get into my longstanding one-man boycott of Walmart. I hesitate to speak for the Founders, but I will anyway: Jefferson and Madison would be perplexed.

Lest you think I am misinterpreting their initial defense, consider their frantic attempt to backtrack:

On Monday, Mr. Dolce and Mr. Gabbana tried to stem the backlash. In a statement issued through the company on Monday — the same one he posted on Instagram — Mr. Gabbana said: “We firmly believe in democracy and the fundamental principle of freedom of expression that upholds it. We talked about our way of seeing reality, but it was never our intention to judge other people’s choices.”

So you see, it is about free speech, and apparently also about their right to be completely disingenuous. The offending quote was nothing more nor less than a judgment about “other people’s choices”, but according to Gabbana and Dolce it was nothing of the sort. Orwell would understand, though one doubts he would approve.

Filed in Uncategorized | | Comments (0)