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Friday, May 19, 2017

Anthony Weiner Pleads Guilty To One Federal Sex Crime, Faces Jail; Huma Abedin Files For Divorce

Disgraced six-term former New York congressman Anthony Weiner will lose both his freedom, his marriage and perhaps even parental rights after he pleaded guilty in a Manhattan federal courtroom to one federal charge of transmitting sexual material to a minor.

Weiner took responsibility for his crime, stating that while he had what he characterized as a sickness, he does "not have an excuse."

Weiner's guilty plea concerns his transmission of sexual material to a minor, and in this case, to a 15-year-old girl.

Weiner agreed not to appeal a sentence which falls within the range of 21 to 27 months. This means that, absent leniency from the judge, Weiner likely faces federal prison time. Weiner likely will also have to register as a sex offender and that may impact his future custody and visitation rights with his young son with wife Huma Abedin.

While defendants and prosecutors can negotiate such deals in order to secure a guilty plea and ensure certain charges are not filed, sentencing decisions remain exclusively those of the judge who may disregard both sentencing guidelines and prosecutors' recommendations for leniency.

In addition, parole does not exist in the federal prison system. Incarcerated defendants must serve at least 85 percent of their sentence.

On the heels of his guilty plea, Abedin reportedly filed on Friday for divorce in Manhattan state Supreme Court.

Weiner's latest perverted exploits came to light after a camera shot of Weiner apparently amusing himself, with their son in the background, surfaced. Weiner was then connected to a federal inquiry into whether he received classified material from his wife Abedin while she was chief of staff to former Secretary of State Hillary Clinton.

Weiner's sexting problems first surfaced in 2011 and led to his resignation that year from the House of Representatives after he became one of that body's foremost authorities on health care insurance reform. It was at that time that Weiner's

Later, Weiner ran for the Democratic nomination for New York City Mayor in 2013 and was leading the polls until new sexting activity emerged. Those new revelations included the news that Weiner used an alias "Carlos Danger" for his escapades. Revelations in federal court today included Weiner also adopting an alias for his new pursuits.

Saturday, April 15, 2017

Jesus of Nazareth: His Likely Medical Trauma

While Christians worldwide prepare to celebrate (or more properly, to revere) the crucifixion of Jesus of Nazareth (and subsequent resurrection, as held by faith) upon the holy day of Easter, some earthly research into the extreme barbarity visited upon the Nazarene carpenter-by-trade named Jesus may give a new appreciation for the actual and virtually unimaginable suffering He sustained.

A central tenet of Christianity is that Jesus endured this suffering to save humanity and to "wash away the sins of the world." The suffering is associated most often, and with good reason, with His being literally nailed to wooden posts arranged as a cross. Yet the physical trauma -- which has been depicted in excruciatingly brutal fashion in some cinematic works including The Passion of the Christ  -- may have been more extensive, and his treatment even more brutal, than the "mere" fact of His being impaled.

Perhaps there is no greater (or more widely cited) medical authority on the severe physical trauma suffered by Jesus of Nazareth before and during his crucifixion than a 1986 Journal of the American Medical Association paper by Drs. William D. Edwards, Wesley J. Gabel and Floyd E. Hosmer. 

The full paper can be accessed in PDF form through this link

Whether for the devout Christian or just the historically curious, the paper is worthwhile and compelling reading and remarkably relatively brief. It may give readers a new sense of the gravity of the pain and the duration of what today would undoubtedly be referred to as "torture." 

Thursday, April 13, 2017

Judge On New York's Highest Court Found Dead in Hudson River

A sitting judge on the highest New York State court, the Court of Appeals, was found dead in the Hudson River between New York and New Jersey on Wednesday, in what authorities suspect is a suicide. 

Sheila Abdus-Salaam was reported missing earlier on Wednesday, and her body was found by passersby Wednesday afternoon. 

See this full report


Thursday, April 6, 2017

Client Information Is Never Totally Safe: Why We Need A "Know Your Lawyer" Rule

When you, or your company, hires a large law firm, you are assuming your information, your sensitive trade secrets, even sensitive personal information, is safe.

Far from it.

Your sensitive data could be at risk. Not from technology, not from breaches, technology failures or the ready-made-scapegoat-excuse of "hacking."

The risk is from the people who work at the law firm or corporation. 

The risk gets larger, and is harder to control, the bigger the organization is, simply because the biggest "X factor" is human nature and human integrity. That means that the more people with potential or actual access, the less safe your information is. Period. Even if there are "controls." 

That means that confidential client information is often only as safe as the integrity of the least-obedient person working in that firm or company. 

Consider this breaking news from the middle of the State of New Jersey, where a young lawyer got busted for accessing confidential files while a law student working for a county prosecutor's office. 

Could the same wrongful access happen to your files?

Financial institutions have had to obey the anti-money laundering and 'know your customer' rules largely implemented after the 9/11 attacks.

Far too many legal clients don't enjoy the same protections when they use a large law firm. The controls on who has access to information can be unevenly applied, hard to enforce, and susceptible to circumvention.

Most commentary on this topic focuses on the "ethical rules" which are in place in just about every state which govern the practice of law. I don't focus on these rules at all, because those rules are good at shifting the blame from the "leaker" to the lawyer. I think lawyers get blamed for enough things which are not their own doing, and the blame-shifting is only good for other lawyers to find a deep pocket (read: money) to go after in court.

That does nothing -- nothing at all -- to keep your data safe. Preventing your loss is my focus here. So-called deterrence is useless Monday-morning-quarterbacking that others can engage in to try to sound smart. But that does you no good at all, not before your loss and certainly not afterwards.

Risk managers will talk about how to "mitigate" risk. This is a smart distinction. The honest manager knows the risk can never be eliminated, but it can be reduced. 

In a "cover your ass" corporate world, decisionmakers are often rewarded for taking steps which, in hindsight, can be explained or rationalized or defended. But that is different from actual risk management. 

Often, the best risk management starts with the initial decision about which law firm or outside service provider or information technology vendor to use. Those decisions are commonly made in favor of "brand name" or "known" (and so often, larger) institutions, which always carry the integrity risk because of the sheer volume of people who are either working on a matter or have incidental access to sensitive data. (The list goes from top partners and executives down to janitors and copy-room workers.)

A solution may be to use select smaller institutions or even solo practitioners. Those are options which allow for direct accountability and the ability to "know" 100 percent of the personnel involved. There may be a loss of convenience, but as those whose information has been stolen or secrets revealed can attest, there is nothing more damaging or "inconvenient" than a busted deal or lost case because data got into the wrong hands.

Friday, March 31, 2017

How To Screw Renters and Homeowners

Homeowners want to preserve their home value.

Renters, or at least some of them, want to be homeowners one day.

But the so-called experts (including many politicians) on "the foreclosure crisis" have a way to hurt both groups. Even worse, they will make the real problem even worse, because our elected leaders and politicians either can't figure out the real problem, or they're too busy trying to buy support by giving more stuff away.

I've been writing about the "foreclosure crisis" ever since mortgage-backed securities starting going bad and home prices began to tumble, That was in the bad old days -- in other words, 2006 and 2007.

Foreclosures are -- wait for this -- a good thing!

Even for the family in foreclosure, it's a good thing. That family gets to "move on." What doesn't happen for that family is this: It doesn't get to live, rent-free, in a home it can't afford, not yesterday, not today and not tomorrow.

Why Do Foreclosures Occur?

Foreclosures usually happen for two reasons. 

The first is the obvious one: The family can't meet its monthly payment, falls behind and eventually "gives up" on paying. But the family isn't evicted right away, and not even for a few years! Foreclosure proceedings only start when the bank or investor holding the mortgage gets fed up with a nonpaying borrower (in legal terms, this is a "nonperforming asset"). In many states, including New York and New Jersey (both states in which I practice law), foreclosures go through the courts. In New Jersey, the average foreclosure period (that means the time from when foreclosure actions start in the courts, to the date of auction at the courthouse) is close to four years! (That's the longest period in the nation during which a borrower can avoid paying anything and stay in the house!) 

What happens during that time? Often, the borrower is pocketing the money he or she would otherwise be paying. That means some families in foreclosure are better off than they were before! 

How is that? I'll tell you! Because now they have cash.

And if you have been pocketing your monthly mortgage payment for three, four, even five years, that's a lot of money!

Meanwhile, those of you stuck in apartments, even subsidized Section 8 housing, can't move out and move up. Why? Because you're too busy working to pay your bills. And that is why you don't have the pot of gold these other people have. You're paying your bills; the people in foreclosure most often are not. 

The common wisdom in foreclosure relief is to "keep people in their homes." However, when you have an income problem and can't pay your bills, that relief is only delaying the inevitable and denying the obvious: The owner who can't afford the home and who needs to move out, ideally as soon as possible.

But the common wisdom, the politicians, and the people who run nonprofits to do "foreclosure assistance," either don't understand this, or those who do, turn a blind eye to it because they're too scared to lose votes!

As for the second reason for foreclosures, it comes from the lack of value of the underlying property. In the simplest terms, this is expressed by the phrase: The debt on the home is greater than the home's value. These mortgages are often called "underwater" and represent negative equity. These homes are often unmoveable, and fall into disrepair, but the primary reasons for that are either the refusal by the homeowner in foreclosure to sell (or dump) the property at a loss, or the bank's refusal to allow a "short sale" (where the home is sold for less than the outstanding mortgage) because then the bank has to recognize a loss on the asset.

The very opposite happens when a family defaults on its mortgage but still has plenty of equity in its home. That family may not be able to stay in that home, i.e., they can no longer afford the monthly payments, but here's what they can do and what they should do: They can sell the home. For a profit! And then turn around and have money, maybe enough for a down payment, on a less expensive place!

None of this should be taken to mean that expensive homes are immune to foreclosure. There will always be bull-headed homeowners who refuse to accept the inevitable, that they cannot afford to stay in their home. There are also plenty of expensive homes which are overleveraged. But more expensive homes are found in more desirable areas, are much more likely to be bought before falling into foreclosure, and therefore account for many fewer foreclosures than homes in lower-income areas with far less demand.  

A real solution to the "foreclosure crisis" recognizes that the neighbors and neighborhood are the victims, not the owner in foreclosure. A real solution incentivizes troubled borrowers to sell and move on, or for banks to do short sales and recoup part (but not all) of their loss. (The reason not to absorb all the banks' losses is to avoid encouraging banks to make more "bad" or "risky" mortgages to poor credit risks.)

The real foreclosure problem can be identified only when you figure out the real victim. The family in foreclosure, while sometimes a victim of circumstance, is not the victim of the foreclosure. The foreclosure victims are the neighbors, whose property values are threatened by a foreclosure and risk of an abandoned home becoming an eyesore, magnet for crime, or safety or health hazard.

This last point is recognized by some elected officials, because that is their impetus to help those in foreclosure on the hope that those "homeowners" will stay in their homes and maintain them. 

That approach is wrong. It is bad policy. It is also bad politics! 

A homeowner, who already has allowed his property to fall into foreclosure, or disrepair, or both, and who has been pocketing the money that would otherwise go to the loan payment, is not going to be any more responsible with someone else's money when he is getting it for free! 

If that home is an eyesore now, the government or a nonprofit throwing money at the old homeowner won't do anything to keep up the neighbors' home values, won't keep the rundown house from becoming more rundown. (Of course, you'll hear promises to the contrary, because people will do and say just about anything to get their hands on free money.) 

Our neighborhoods will be better off, they will be made more stable, and there will be fewer abandoned or dilapidated properties, if we stop trying to keep people in foreclosure "in their homes" and instead start using our scarce resources to move them out!

As for the elected officials terrified about losing political support, consider some points. 

First, people in foreclosure are few and far between. 

Second, people who are not reliable payers of their bills a hardly reliable voters. 

Third, as the self-styled affordable-housing activists are saying they won't support you unless you take their position of the day, you need to realize you are in an extortionate death spiral in which you will be induced to take ever more damaging positions as you seek to avoid the inevitable, which is to "lose" their support (which you likely never had and never will get) and ultimately an election. 

Fourth, you need to realize that for each voter in foreclosure you seek to appease with these foreclosure-victim appeals, you are alienating many more average voters. 

Voters who pay their bills and own homes are much more incentivized to be active in elections, to contribute to campaigns and to vote their pocketbooks. 

So if you're a politician torn between these two camps, can you figure out who can help you more, and who can hurt you more?

How you answer that question might decide your political future -- and if your town is lucky, its ability to have safe, stable neighborhoods and rising property values for its residents in the future. 







Sunday, March 26, 2017

Facts Versus What You Think Is A Fact: Prosecutions and "Fake News"

The judicial system (that is, our courts) have to parse out the facts of a case.

Both sides (and sometimes cases have more than two sides!) present their version of the facts, their arguments about the law and how the two work, and introduce items into evidence where permitted.

Many people do not truly understand the limits on a fact.

Even worse, and much worse, is this: Those people then compound the first error by imprecisely describing what is it that they claim to have seen, or know. 

This is where the vast majority of people get it wrong. Whether they're in the legal profession, or judges, or journalists, and definitely many corporate officials making decisions, they almost always get it wrong.

Just imagine, those are the people with above average mental intelligence, if not necessarily the emotional intelligence. For those of "average" or even "below average" intelligence, the subtle nuances between "impressions" and "opinions" and actual "facts" are often lost. This is a huge risk factor for people going before a jury, I tell you.

Someone having a feeling about something being wrong? Where's the fact in that question?

It is not that "something" is "wrong." The fact there is the observation about the underlying information that supports the feeling. The fact is the observation, that is, "I saw something." The problems arise when the "something" gets described incorrectly, inaccurately or embellished. 

Facts are objective. 

Opinions are not objective, but it is a fact to say that you have an opinion. The opinion, however, is not fact. 

A particular person who is quoted in some article saying blah blah blah?  The blah blah is not the fact, but the act of it being said becomes the fact. No matter how false the actual subject of what's said might be, the truth of it being said creates a fact no matter how false the subject matter claim might be. 

This brings me to my final points: Facts are objective, but impressions are subjective. Most people hear only part of what you will say (or write). Listening comprehension is a lost skill, particularly as we "multitask" more and get more "plugged in" to competing sources for information.

In other words, we hear, but we do not necessarily listen. And it's much rarer that we actually understand what gets through. 

The same can be said for the skill of reading comprehension. Trust me, as the skill in today's journalism has generally declined from two decades ago, although the dropoff in skill has also affected legal writing. 


Saturday, March 25, 2017

Former Goldman Sachs Executive Would Turn Foreclosures Into Mini-Ghettoes

Whenever you hear people talk about this so-called "foreclosure crisis" or "housing crisis" or whatever these Leftist opinion leaders call it, remember that good policy requires speaking the real truth about public housing. 

Because if we don't, we soon are going to all end up in public housing, that is, in housing where the actual quality of life is indistinguishable from a housing project! Let me explain how.

First of all, there could be an impetus, stemming from this year's New Jersey election for Governor.

The very wealthy former Ambassador to Germany under former President Obama, Phil Murphy, is running for Governor of New Jersey and he is currently battling for the Democratic nomination. The common wisdom and press coverage right now indicates he's a heavy favorite to get the Democratic nomination. As registered Democrats outnumber registered Republicans statewide by nearly two to one (over two million registered Democrats to about 1.2 million Republicans, but over 2.4 million voters haven't picked a party, according to these new figures), and also seeing that Hillary Clinton ran strongly in New Jersey (beating now-President Trump by 14 percentage points), it's a very good bet that Murphy will be New Jersey's next Governor. 

Here is what is troubling. Ambassador Murphy, perhaps being made to feel he should be ashamed of his own accomplishments in life, senses he must atone for his success by "giving back."

I've met Murphy and spoken to him at length personally. He is a decent man, perhaps too decent for retail politics. I sense it is in that spirit that Murphy wants to turn foreclosures, in the midst of thriving working, middle and upper class neighborhoods, wants to solve the "foreclosure crisis" or "lack of affordable housing crisis" but his "plan" would risk turning any foreclosed property into a mini-ghetto.

Murphy puts forth his "housing rescue" plan (actually a rehash of a twice-vetoed "foreclosure residential transformation" bill passed by New Jersey's Legislature earlier this decade) on his campaign website. It reads:

Murphy said he would aggressively pursue the state's fair share of Wall Street mortgage settlement funds to launch a program in which the state would purchase foreclosed homes and partner with qualified nonprofits to repurpose them as affordable housing.

"Affordable housing"? 

In plain English, folks, that means a little housing project, for a whole bunch of people who otherwise can't afford (or do what it takes to earn a living sufficient) to live in your neighborhood.

As for your home values, they're likely to crash. Moving people "who can't afford 'affordable housing' " may be great to get the approval of the brie-cheese-and-caviar intelligensia, but it isn't good for the property values of the neighbors of the new mini-project.

That's because people who can move out of the ghetto, get the hell out of them and they do not ever look back. There's no conga line of people lining up to buy homes right next to housing projects -- er, sorry, "affordable housing." Why is that? It's because public housing contains some of the worst people you would ever want to have as neighbors. The mentally ill, the drug-addled, and plenty of criminal elements.

Turn a foreclosed mini-mansion into "affordable housing," and you'll have more "for sale" signs than dandelions very quickly. 
___________________________________________________
FLASHBACK: How "Foreclosure Relief" Hurts The Poor. Eric Dixon's 2012 analysis on a disastrous foreclosure relief plan which passed New Jersey's legislature, not once but twice!
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It's also because public housing was originally sold to the electorate as an absolute last housing option for those with no other choice except homeless shelters or a cardboard box outside. It was not intended to become permanent low-income housing, which is precisely what it's become across America. (Ask yourself whether its original proponents knew all along what would happen, and purposely stayed silent.)

Some very good houses in upper and middle-class areas fall into foreclosure when disaster strikes their owners. It could be a medical emergency of which the cost outstrips the insurance coverage. 

Under the Murphy plan, those homes would become a great opportunity to turn a big house into a multi-unit "affordable housing" development, or a drug rehab center, or a property for some other "noble purpose."  

If the home equity you've built over decades of responsible ownership gets wiped out, well, you're a homeowner so you are one of the "rich." It might be more intellectually honest to simply come out and say the following: It serves you right. 

Why would any politician advance such a plan? Maybe it's because the politician doesn't understand basic economics. Some of our elected leaders do not understand basic supply and demand. Many others are disdainful of economic cause and effect. But why would Murphy, who is clearly a smart guy -- a former Goldman Sachs executive who actually omits any reference to this on his campaign website -- push this plan?

He understands the economic forces at work. He also understands the political forces which make him make a choice between the Leftist or "progressive" votes he thinks he needs, and the homeowners whose votes he believes he can take for granted. 

In making such a choice, politicians like Murphy are pandering to the mob of Gramsci (i.e., cultural) Marxists who envy, hate and want to hurt anyone else who's "got more." To these real deplorables who believe in political or cultural Marxism, anyone with a home may be branded as morally inferior, evil incarnate, and thus the ends justify the means.

If they cannot confiscate your property -- which I believe will be the end goal -- they can try to reduce its value. 

Confiscation and destruction of private property has often been among the first actions of totalitarian regimes upon seizing power. This attitudinal shift is laying the groundwork for future generations to come to believe those actions would be totally reasonable, acceptable and legitimate. 

Private property, after all, is the crime in their eyes. So these "foreclosure relief" measures are really just an attack on private property. The strategy is to attack the value, your value, your wealth, and by extension, your work, effort and sacrifice for all these years.




Saturday, March 11, 2017

Preet Bharara Got "Fired" As His Brilliant Strategic Move

Breaking news never sleeps. On Saturday, Manhattan's U.S. Attorney Preet Bharara was fired by the Trump Administration after refusing to tender his resignation, as requested on Friday. Bharara himself confirmed the firing, using that precise term in his own tweet, from his own personal account.

This news needs to be viewed both in the proper context, and in a strategic context.

Background: A total of 46 sitting U.S. Attorneys, all appointed by President Obama, were requested to submit their resignations yesterday.

Further background: Submitting your resignation is not the same as an automatic resignation. It allows the Trump Administration (as with predecessor administrations) to accept or decline the resignation. It also allows the administration and the President (at whose pleasure all executive branch officers serve, let's remember) to exercise the discretion which it has, to decide when to terminate an appointee. 

Great lawyers think strategically. This could all be strategic. Not by Trump. But by Bharara.

First, Bharara may have anticipated being fired, or may have been looking for a way out without necessarily resigning or compromising any ongoing investigation (either civil or criminal) in the office of the United States Attorney he runs in Manhattan. 

As a result of his federal post as United States Attorney, Bharara would face potential conflicts and ethical hurdles if he negotiated big firm job offers -- likely quite lucrative -- while still in the federal post. That is because some of those firms representing corporate and individual clients who are (or were) witnesses, subjects or targets of investigations, or defendants. His conflicts would not merely be with cases he handled; he would face conflicts from any case or investigation before his entire Office of the United States Attorney in Manhattan.

That's a huge office. That means a huge list of potential, active conflicts. 

Some of those conflicts remain with regards to clients he cannot represent if or when he moves to a law firm, assuming that is even an option or desire on his part. Now that he is a "fired" and "former" federal employee, Bharara can have those discussions -- assuming, again, that he even wants to move into private sector legal practice.

He can also collect $400 per week in unemployment benefits. New York State allows a fired employee to collect $420 per week for up to 26 weeks. 

Plus, Bharara reserves the rights all fired employees have, including the right to sue for wrongful termination. One never knows what could happen.

And should Preet Bharara have political ambitions in New York City or New York State, suing President Trump for wrongful termination would be an absolutely brilliant optical and strategic move, if not necessarily a winning legal or financial move.

But overall, forcing and then publicizing his own firing looks like one great strategic play by Preet Bharara. 

Saturday, February 4, 2017

Female Hockey Player Sucker-Punches Opponent, Then Sues Referee

An overly aggressive New York female lawyer attacked a male opponent from behind in a co-ed ice hockey game, and is now suing the referee after she allegedly suffered a concussion and broken nose when the referee intervened to stop the attack. 

The news report (link above) glosses over the fact that the female player instigated the attack, and "allegedly attacked a male player from behind." 

Longtime observers of pro hockey -- and plenty of people with common sense -- know that attacks by one player on another player, particularly from behind, carry a high risk of serious injury. 

It is that risk, and likely the referee's awareness of that, which should be cited by the defense in this case to explain the referee's actions (assuming this case gets to the point of depositions or trial). 

The preeminent professional hockey league, the National Hockey League, has suspended players for such actions. 

And now here's some context -- with video:

The career of star New York Rangers defenseman (and 1994 Stanley Cup winner) Jeff Beukeboom never resumed after he was attacked from behind by Matt Johnson of the Los Angeles Kings in a 1998 game. Here's the video. https://www.youtube.com/watch?v=_pS_D3FP4Zs

In another reprehensible attack, Todd Bertuzzi followed and then punched from behind Steve Moore, who fell right to the ice (again, basically ending his career). Here's a video clip showing Bertuzzi chasing down Moore in that 2004 game.

The severity of the attacker's actions must be considered, irrespective of the actual injury of the original victim, because the risk to that victim provides the necessary context with which to explain the propriety of the referee's actions. 

You win cases by explaining the context, whether historical or medical. In this case, the focus should be on the instigator. 

Eric Dixon is a corporate and investigative lawyer who consults with clients in New York and New Jersey.



Wednesday, February 1, 2017

Why Your Lawyer Sucks: More Headwinds For The Economy

America has never had so many lawyers.

And, apparently, so many absolutely mediocre ones!

Recent data shows that applications to the most competitive law schools in America have generally declined nearly 20 percent since the recession
-- which was nearly a decade ago! These schools (measured using the U.S. News annual rankings) report having reduced their entering classes by about five percent.

So fewer lawyers from the top schools, right? And maybe, fewer brilliant lawyers if you assume a brain drain from law school to other fields?

What about the rest of the law schools pumping out new graduates into the workforce? Other data reports a nationwide decline in applicants of between 40-45 percent post-recession. One prominent Northeastern law school reports a 60 percent decline.

Despite this significant applicant decline, the American legal profession continues to mint new lawyers at a consistent rate. The profession's leading industry organization, the American Bar Association, reports the number of active resident lawyers has never been higher! The ABA's latest data for 2016 shows approximately 1.315 million "resident active attorneys" nationwide, a number which has consistently been growing at over one percent annually, and which is currently an all time high!

When new graduates keep flowing unabated while the incoming pipeline has been drying up markedly for nearly one decade, you can draw the inference that law schools dependent on tuition revenue for survival have had to accept lesser quality students to keep up their enrollment.

This, in the face of declining student demand. It's also in the face of the persistent anecdotal evidence throughout the industry (including from big law firm partners) that demand for legal services has been flat to down now for over ten years. (That roughly corresponds with the deflation of the mortgage credit bubble.)

The results? Great judgment remains rare and in demand by a discreet set of users. However, most other legal services are a commodity. Many consumers believe contracts and even court complaints are boilerplate and that legal advice is now a "DIY" commodity. Furthermore, new demand areas like compliance are at risk of obsolescence (and offshoring) if the Trump Administration declares its War on Regulation, as promised.

The glut of mediocrity -- or worse -- threatens to create new headwinds for an American economy that has been under siege from government overreach for the better part of the last quarter century.

Tuesday, January 31, 2017

The Boy Scouts and Avoiding Lawsuit Risk

The Boy Scouts of America recently announced it will allow transgender children (i.e., biological girls) into the Cub Scouts and Boy Scouts.

The policy change comes days after reports that a New Jersey mother of an eight year old girl, identifying as male and recently kicked out of a Cub Scout pack, planned a civil rights complaint with New Jersey authorities. Not even a civil lawsuit, although there's no telling what has happened away from the glare of media cameras.

I counsel clients on avoiding risk and weighing risk in various situations. Part of that process involves asking questions, like: "How do you act, to minimize the risk of a false accusation?"

You cannot control the conduct or intent of others, but you can control your own conduct, your intent, and the situations you put yourself in. I believe that, and it's unfortunate in this world, but innocence is not enough.

With that in mind, here is how I see the Boy Scouts' situation.

When a girl joins and participates with the Boy Scout pack, the boys, the scoutmasters (often parents of the boys in the pack) and the organization are all at risk of a false accusation -- from a female.

In the current politically charged climate, for practical purposes, female accusations are accorded greater weight, at least in the court of public affairs. Allegations may not hold water and false accusers may even be prosecuted, but targets of accusations don't have a ready remedy to restore their reputations. (Note the qualifications and phrases set off by commas, before you misinterpret my writing.)

The Boy Scouts' new policy -- call it appeasement, call it compromise -- may endanger all of its participants in a misguided strategy prioritizing the seeking of the approval of opponents, over duties to its members. The effect is to give no resistance to outside challenges which represent a crude, if not depraved, indifference to the risk assumed to any Scout participant, a risk assumed by the mere act of being involved with the Scouts. Sadly, making participation in the Scouts a risky proposition, one in which participants (even, and especially, chidren) risk legal and reputational consequences, might be the unstated but intended consequence.

The organization could have elected to show a spine, to prepare for and engage in litigation. Now, by trying to avoid confrontation, it may well weaken its standing and support among its members. That in turn will almost assuredly weaken its ability to withstand the next legal threat, which its appeasement today will only invite.

After all, weakness is provocative.

Monday, January 30, 2017

Starbucks Risks Lawsuits With Refugee Hiring Push

The chief executive officer of Starbucks said Monday morning he will have his coffee chain hire 10,000 "refugees" in response to the Trump Administration executive order on certain majority-Moslem-nation refugees and visa holders.

I guess Americans will be wondering just where those unfilled jobs were all these years.

These are borderline discriminatory policies. The motives are clear. These companies either want to avoid the backlash from a Leftist-Marxist pro-open borders crowd, or they are catering to this growing and substantial segment of the consumer market. Thus, "virtue signaling" to this portion of consumers is seen as the way to grow -- more likely, to retain -- consumer sales.

Yet such blatant preferences -- for which the flip side is equally blatant discrimination -- violate a host of federal and state civil rights laws.

If one baker can be sued by a state attorney general for refusing to bake wedding cakes for a gay couple, surely Starbucks would be a clear target of an ideologically blind Department of Justice, Civil Rights Division, or state attorney general, would it not?

I would think Starbucks and companies following its lead would become prime targets for shareholder lawsuits as well. That's because essentially declaring war on much of the rest of your native "American" consumer population is eventually going to harm the bottom line. Implicitly criticizing a segment of the consumer base puts other revenue at risk. These political decisions are not guaranteed to be revenue net-neutral and may well become net negative. The risks are substantial enough to throw doubt on whether any cognizable "business judgment" argument can or will be made to justify such strategies.

Wednesday, January 25, 2017

The Hidden Target of Election Fraud

The current controversy over alleged voter fraud misses the point on the numerous opportunities for actual mischief and distortions in the political process.

As this longer analysis of mine points out, the arena of opportunity is in the dark recesses of the election machinery. 

Everyone is watching a presidential election. 

It's where no one is looking -- and frankly, no one cares -- where the real problem lies. I explain how that then leads to metastasizing problems which undermine the integrity of the election process. 


Wednesday, January 4, 2017

Bullish on Blockchain, Or Full of Bull? How You Can Avoid The Frauds

As of this writing, most digital currencies of consequence are soaring with double digit percentage gains over the past week if not the past day!

Renewed interest in all things "blockchain" has followed. That interest is flowing towards the omnipresent commentary about how "The Blockchain" will solve all manner of human problems large and small.

Want to have immediate transaction clearing? The blockchain will handle that. Sure. Someday. Just trust us.

Want to end world wars and terrorism? The blockchain will have an app for that!

Want to stop food from spoiling? Yeah, the blockchain can do that too.

These are the fantasies of the utopians, the tech lovers and science fiction geeks whose faith in human intelligence to ultimately provide these solutions is both unbounded by and, too often, ungrounded in reality.

Blockchain technology can be a platform for great innovations, advancements and improvements in commerce, science, education and recordkeeping. It can be a main pillar of the next wave of human civilization in which the information economy is not merely a feature but rather a core element.

Yet the dreamers are too often followed by the schemers. The people saying that blockchain technology will solve your problems -- and get you rich quick in the process -- are confident only that it will solve THEIR financial problem, and your capital is the solution.

Any real solution starts with an understanding of the gravity of the problem.

We are rapidly moving into a post-fact era where impulsivity replaces intelligence and bravado replaces mature judgment. In this new world, we need a renewed appreciation for and value of the sanctity of information.

There's something else here as well. The value of information is only as good as the information itself. Throw bad content into the blockchain and, absent a strong external
Quality Control mechanism which may contradict the very nature of blockchain, the content remains. Because it is valid -- even though in its valid state it may have impure data.

The blockchain can be a great preservative. But it cannot guarantee a great crop yield and it cannot guarantee the food will get from field to table in one piece or in edible condition. As with perishable food, no amount of refrigeration will restore food which has already gone bad before it gets to the blockchain.

A mature view of this technology will accept its current limitations and identify the real present day problems that can be solved today. Focusing on stuff that sounds like it came out of a "Star Trek" movie is great for showing off. For the rest of us, we need to solve real world, real life problems and we need all the focus we can summon to accomplish what's real.




Without that appreciation, the blockchain is worthless.

Thursday, December 29, 2016

Transgender Boy Scouts And The Right Of Association

A developing controversy, about an alleged transgender "boy" kicked out by a New Jersey Cub Scout pack, has serious, serious implications for the basic core constitutional right of privacy and the related rights of association most Americans take for granted.

On one level, my cynicism tells me this emerging discrimination claim -- a lawsuit is where this is headed, for sure, count on it -- may just be one big scam.

The objectives are unclear (that's by design) and there could be several. This could be designed to pressure the Boy Scouts of America, perhaps the most renowned boys' organization in the nation for generations, into "progressive change." (To support that theory, check out this petition drive to force the Boy Scouts to change its policy.)  Or drive it out of existence altogether. Or extract a high penalty, maybe civil fines or a settlement to pay off the family. Or all of the above -- and maybe the greater the damage, the better (as that is the point of all this, I suspect).

On the basic level, Monday's Gannett-owned Record of Hackensack reported on an eight year old Secaucus, NJ child, biologically female but identifying as male (so the story goes) and who was allegedly just kicked out of a Secaucus, NJ Cub Scout group because of objections from other parents. The Record's story shockingly identified both child and parent as eight year old "Joey" Maldonado and the mother as Kristie Maldonado.

The story's identification of the principals alarmed me. Naming family members in sensitive stories is, to me, a practice which is unnecessary and of no news value to the audience. Sometimes, I feel it is done as an overtly innocuous but secretly vindictive act to shame or pressure the person named. Here, it is clear the parties wanted to be named; this means the mother wanted to "out" her own child. That decision is reckless, if not depraved, for it creates the risk of damage to an eight year old child. It also indicates the child is just a pawn in this adult powerplay. 

UPDATE 12/29/16: As if on cue, the morning after this article was published, both mother and child appeared live in studio on CNN. The video is embedded in this NJ.com article

Now, the story makes no mention of gender reassignment surgery or hormonal treatment. Those absences support the inference that the child was born female and is still anatomically female.

The worst thing about the Record's salacious, click-bait-pursuing story, is that it names the child by the "male" name, Joey.  The child is exposed publicly. But as my ongoing investigation reveals, the mother hasn't been shy about revealing details about her child, not in social media and not in the conventional media. Quite the opposite. In fact, the child's identity has been publicized widely, almost as if the intent were to cause even greater harm. To the child. To her child. 

The mother claims her "son" started identifying as male several years ago. Yet social media tells a different tale. On the mother's Facebook page an August 5, 2015 post shows a photo of the child, who looks just like the same child pictured in the Record story. That post refers to the family members starting with "Jodi," then "Kristie" and "Jorge." 

(And if the page has been taken down, an archived version of the page is available through GotNews.com at this link.)
There's more evidence that the mother was parading around her child in the press. In May 2015, the same woman and her child were quoted in a different local publication. That story referred to the child as a seven year old named "Jodi" Maldonado.

It is pretty clear that "Joey" is really "Jodi," and this seems to be quite the sudden transformation, no? So what's motivating this change?

Maybe the mother is trying to set up a big lawsuit, a big payday. Because she was just recently on the other end of a lawsuit, as a defendant in an automobile accident personal injury case which settled before trial. The case was titled Leyva v. Morris, NJ-HUD-L-Civ. 5857-13. And when did the case settle? Mid 2015. (Settlement details are confidential.)

Just about the same time it seems the compliant or gullible news media organization wants you to believe this child started identifying as a
 boy.

And perhaps the same time that a perhaps-financially-strapped family needed money and could have fallen prey to political activists with cash to burn and scruples to abandon. 

As for the Cub Scouts, what about them? Maybe they're the perfect politically correct target, being all-male and traditional values and such, and better yet, one with deep pockets. A juicy target, a "get" is what the Boy Scouts are. 

But the larger constitutional issues revolve around attacks on a private organization. It is possible the Boy Scouts may be forced, under threat of either ruinous litigation or even state regulatory or prosecutorial action, to abandon any membership criteria. 

But then, you have the issue of who can join, and who can select members. 

When every organization is open to all, when there are no standards, when everyone can be a member, then in reality, no one is a member.

I am afraid that the larger, hidden agenda here is an assault on the right of association, the right of groups to privately associate, and thus an implicit attack on every cultural institution. The message: No institution is safe from assault, no group may enjoy a right to associate as it wishes.

The case of this one child in New Jersey is merely the sympathy-inducing deception, to distract observers from recognizing the deeper principles at risk. 

Eric Dixon is a New York City based corporate and investigative lawyer. 

Tuesday, December 13, 2016

NJ Attorney General Tries To Control Newspaper

A five year old in Trenton, NJ brought heroin and crack cocaine to his preschool on two occasions earlier this year, prompting his placement in foster care.

But when newspaper reporters from The Trentonian got their hands on the court complaint, which in family court matters is normally sealed, New Jersey's Governor Chris Christie sprang to action.

The State Attorney General, appointed by Christie, got a temporary injunction preventing the newspaper from publishing more articles on the story, and offered to agree not to oppose the newspaper's argument against a permanent injunction.

But there's a catch: The Attorney General's Office gets to approve the next article! And if they don't like it, they said they would seek a permanent injunction.

This case, set to be heard Wednesday down in Trenton at the Mercer County Courthouse, shows state government is willing to use its power to restrict press freedom. After Bridgegate, this is just the latest abuse of power.

When a right is conditioned on the permission, the judgment or the abusable discretion of the government, your right no longer exists. It becomes a license, to be granted by and withheld by the State for any reason or no reason.

Many in Hudson County just celebrated the passing of the Cuban Maximum Leader, the despot Fidel Castro. Yet this Christie Administration move on the press evokes the playbook of the totalitarian regimes that once comprised the Soviet Evil Empire.

Even worse, Christie is simultaneously pursuing a change in state law for the benefit of one person - himself. That's because he wants to write and profit from a book deal (assuming people would actually pay to read it), while remaining nominally in office for the last year of his term and collecting a full salary for writing his book on our dime.

Is this Chris Christie's First Amendment? Where he gets to change the law (with the Legislature's help) to benefit himself, while using his power to restrict press freedoms essential for the public's right to know?

A county court hearing on the injunction is scheduled for Wednesday. But this hearing should not even be necessary.

The First Amendment is clear that the people are to be free from any abridgment of the press, and our Supreme Court has reaffirmed this right. Freedom of the press is, in fact, not just a constitutional right, but a "core" constitutional right.

There are over 40,000 lawyers living and working in New Jersey (many others live there but practice in New York or Pennsylvania). Where are the principled men and women in the Attorney General's Office who would and should resign in protest, rather than violate the spirit, or letter, of our Bill of Rights?

Why aren't Christie appointees throughout our judicial system doing the same?

Chris Christie is a lame duck governor who still wields the power of our State Executive Branch. If Bridgegate wasn't enough of a warning, this case of legal intimidation of the press is a warning to us to beware of a man who is no longer accountable to voters and who just might think he can get away with Fidel Castro style repression.

Saturday, December 3, 2016

Can IRS Use Coinbase Order To Harass Bitcoin Owners?

The federal government might have a new tool to discourage Bitcoin investment and acceptance by retail merchants.

That's because a federal judge recently authorized an Internal Revenue Service summons on the digital currency exchange and wallet provider Coinbase for its transaction history for the three years prior to December 31, 2015.

This means that the granular information of those transactions, all investment purchases and sales as well as each merchant transaction, will be accessible to the IRS.

The summons itself does not change any tax liability or responsibility of American taxpayers, because digital currencies have been ruled to be currency since an early 2014 agency ruling.

But without Coinbase issuing detailed records of transactions to its customers, the granular information to the IRS means the agency may obtain the aggregate sale proceeds to customers and force the customers to rebut the agency position that those gross proceed amounts are not income. Unfortunately, that means customers and merchants would be compelled to go through the trouble of documenting (i.e., proving) their purchase price (their "basis" for tax purposes) in the digital assets, lest the IRS assume a zero basis and that the entire sale price is taxable gain! This is patently unfair.

Imagine a supermarket (to take a low-margin industry as an example) buying milk wholesale for $2.50 per gallon, selling it at retail for $3.29, but being taxed as if the entire sale price were profit?  Well, if you're a bitcoin investor or merchant who takes bitcoin as payment, that could be the unstated, de facto policy of the IRS. And that would be a hidden, unofficial, unspoken way for some government officials to discourage the use of digital currencies.

Yet all is not lost. Any smart merchant or investor should keep meticulous records. All customers will need their records of the purchases. This will establish the basis of the taxpayer.

Now I will explain why that is not necessarily bad. Indeed, with the long period of Bitcoin's price decline from its $1200-plus peak in late 2013 to its trough below $200 in late 2014, many sales in the covered three year period (Jan. 1, 2013 to Dec. 31, 2015) may have been at a loss, where taxpayers bought at a higher price than the sale. Bitcoin still is several hundred dollars below its peak. Many Coinbase users may have taxable losses on Bitcoin, and can use $3,000 of losses to offset other income, and losses over that amount to offset any capital gains.

The uncertainty about the IRS implementation of its enforcement powers, and whether Coinbase will issue the tax statements customary for securities broker dealers or mutual funds, means that taxpayers may have significant tax reporting burdens for which they are unprepared.

If Coinbase starts -- or is required -- to issue tax statements to customers like other financial institutions, Coinbase will need to be prepared for a new level of compliance and the resulting costs. Those costs naturally get passed down to customers. You could see annual account charges or higher transaction fees, and plenty of business moving to extraterritorial (outside the United States) exchanges.

Taxpayers with Coinbase accounts face a documentation problem and should strongly consider hiring a legal or tax professional knowledgeable in digital currency to help establish the evidence needed to prove their tax basis in Bitcoin and other digital assets.

Eric Dixon is a New York lawyer, blockchain enterpreneur and all-around fixer. Reach him at EDixon@NYBusinessCounsel.com.

Sunday, November 27, 2016

Election Fraud Claims Miss Opportunity For Voter Registration Fraud

The weekend brings a new allegation from President-elect Donald Trump about voting fraud resulting in "millions" of illegal votes.

The allegation was swiftly denounced as, among other things, a "fringe conspiracy theory" in the very lead of this Politico article.

But the possibility and opportunity for fraud remains largely unexplored and uninvestigated, curious circumstances indeed. At a minimum, the overeager dismissal of voter fraud claims suggests those doing the dismissing, are aware of systemic mischief and uneager to do anything to force its disclosure and their obligation to do something about it.

Election-related fraud can take two forms. Both have the potential for major mischief.

The first involves the misreporting of valid votes anywhere in the election process between the time the voter interacts with a polling machine, and the final tabulation of vote results. 

The trend of replacing old mechanical-lever machines with electronic touch-screen or scanners has not eliminated the basic problem of trust nor the opportunity for hyper-partisan poll workers to misreport numbers or otherwise make mistakes. (Some poll workers pull a 16-hour day which ends with the reporting of machine tallies, surely a common sense element to introduce at least the potential for mistakes, never mind much worse.)

One potential solution is presented by a blockchain-reliant electronic voting system (which is subject to a patent now in allowance and pending grant) using an electronic interface to report votes onto a decentralized, consensus-based public ledger (called the blockchain) which also allows for paper reports and an audit trail. 

When you consider all the individuals involved at the ground level of any election, it requires suspension of disbelief to be asked to believe (or assume) that everyone gets the numbers right. On a wide scale, the possibility for error only grows. Whether it is really possible to distort the outcome of any election is a different story, since both sides tend to be equally overzealous and opportunistic and one might credibly think the error or fudging the results may be roughly equal on both sides. (Or not.) 

Certainly, organized, clandestine efforts to rig the results would require the  involvement of many people and the silence or complicity of yet another large set of people, and the continued silence of all of these people (which is unlikely). Effective result-rigging would require misreporting and the absence of an audit trail or other verification mechanism, to permit the misreport from eventually being discovered, but this is the problem with electronic machines which do not print out a paper record. 

Now, to the second form of election fraud. This can distort (or throw) an election outcome as a result of the dilution of the legal voter pool by illegal or otherwise ineligible voters. Now this may be what Trump -- and others -- have in mind, but are not effectively communicating. (Amazingly, Trump & Co. also botched their explanation of the I-didn't-pay-taxes-one-year controversy.) While many non-citizens dutifully and eagerly report their ineligibility to vote when they are asked to "come out and vote on Election Day," anecdotal reports persist about plenty of other non-citizens who are clueless and sign whatever they are told to sign. They are signing voter registration forms, and have no idea what they are doing, but they are registered. (This can impact small races where a handful of votes does represent the margin of victory. Think your local party county committee races or local school board district, that type of thing, more than larger races like Congressional races.)

The potential for abuse exists, because observers know that our voter registration system operates on the honor system: We trust people to be truthful when asked if they are citizens.

But in a time where the hysteria was about possible deportations of legal immigrants, must the reasonable observer be forced to ignore at least the real possibility that there were scared-of-deportation immigrant non-citizens who signed up to vote?

Should we have a level of educated discourse on this topic that requires unanimity that, no, never, it is impossible that this could have happened, so impossible in fact, that we should not even explore the question? 

Across the country, these ineligible registered voters do add up. It may not be a big amount, may not be statistically significant, may not have any bearing on any election, but isn't it funny that this is a topic just about everyone is eager to cover up with a bulldozer so it never sees the light of day?

Eric Dixon is a New York lawyer who has represented dozens of candidates including presidential candidates in ballot access matters. 

Monday, November 21, 2016

Why Entertainers Should Not Discuss Politics or Social Issues

The recent Hamilton controversy raises several issues that range far beyond the stated content of the post-show monologue directed at the Vice President Elect.

One of the issues is the wisdom of entertainers, in any field, opining on political or social matters of the day.

The classic entertainment rule was that public declarations on anything in politics or culture was not merely considered unwise; in fact, many talent agents, producers and other "gatekeepers" for performers made it clear (officially or unofficially, in written contracts or with the stern talking-to) that such comments were forbidden, off limits, verboten.

Back then (and still true in a large regard today), the reason was pretty clear: Such opinions rarely, if ever, helped the bottom line. It's pure good business, pure good show business.

Why is that the case? Wouldn't affinity with a star, agreement or sympathy with his or her positions, help drive ticket sales, record sales, licensing revenue and so on?

Yes, potentially -- but the opposite is true too. 

The best example is demonstrated by the relatively new trend towards identifying the sexual identities of comic book heroes. (Full disclosure: I am not a comic book fan, never was, so the field is rather alien to me; the advantage is that I can discuss this issue unemotionally.)

Prior to the last twenty years or so, comic books and their derivative cartoons, movies, etc., rarely delved into the personal lives of their characters. Even with characters whose superhero identity and storylines often involved their "mortal" alter ego and attempts to hide their "real" identity (think: Peter Parker and Spider-Man), the personal lives and intimate exploits were typically rarely or never explored in plot lines. (The more recent cinematic iterations of characters are a sharp departure from this classic treatment.)

I contend that part of the mystique and allure of superheroes, or many fictional characters, is the mystery of the unknown. Since the fans don't know much about a certain character, they can imagine those traits, those realities, and project their own values onto their character. This type of fan identification, the projection, the daydreaming if you will, might seem juvenile to some, but it is the fuel behind a lot of the fan interest behind certain stars and shows. It is the kindling wood underneath a lot of the chatter, the water cooler talk, that in turn spurs audience interest in existing fans and drives new interest. (Because ratings, book sales, etc., matter; it's all about metrics, and revenues.)

Answer these questions, and I'd argue you are sucking the oxygen out of the room. Out goes the fire. Isn't that what the new comic book writers are doing, when they declare that a certain superhero has a particular sexual identity, or religion, or whatever?

While such decisions are currently trendy, I contend they play to the affinity of one group -- typically a small group -- but do so at the expense of diminishing or destroying the imagination of the rest of the audience, and as a result experience a net loss.

In show business, folks, numbers matter. See above: it's all about metrics, and revenues. 

For additional fuel to this fire, consider the now-iconic ending in 2007 of the final episode of the HBO mob/family drama "The Sopranos," best characterized by a series of answered questions in the last episode (i.e., shootings of various characters) and some totally unanswered hanging questions regarding the main family characters (e.g., everyone in the Soprano nuclear family). While the show was undoubtedly wildly popular and even considered a cult classic during its run, the series' ending likely enhanced its stature above its prior heights. 

Returning to the original topic of stars interjecting politics or social commentary into their show business characters, their performances or even just interviews with the entertainment media, I would argue it simply is not good business.  I believe the most successful entertainers know that.

Before you conclude I am wrong, ask yourself this: When was the last time you ever heard anyone in the Kardashian daughters -- the offspring of a famous Hollywood lawyer -- discuss politics?

That's exactly the point. Those daughters know better, have been taught to know better. For once, follow the Kardashians' example!

Eric Dixon is a New York lawyer who runs his own independent law practice as well as a consulting practice on blockchain technology, media and political / policy matters. 

The Hamilton Controversy: When An Audience Member Becomes The Show

Many misconceptions about the weekend controversy involving the Broadway show "Hamilton"'s cast's shoutout and shaming of audience member, Vice President Elect Mike Pence.

This does not involve the First Amendment. The First Amendment restricts government interference with speech. It has nothing to do with personal or corporate restrictions on speech. The Hamilton cast was perfectly within its rights to do the monologue. The Hamilton producers, owners, sponsors, etc. are within their respective rights to respond, as are prospective audience members entitled to boycott the show (which has been suggested in some corners).

Now, here is a link to a Canadian telecast story (Canadian Broadcasting Company), including video of the actor Brandon Dixon's monologue:


The issue here is not one of rights. It is one of culture.

Is it appropriate -- not whether it is legal -- for an audience member to become "the show" by design of the cast?

Do we -- as patrons, as customers, as the audience -- want our entertainers to possibly call us out, in public, for whatever views we might hold, or even the views we might be presumed to hold?

Finally, the reality may be that the intent of the end-of-show monologue was to deliver not the "stated" message, but this alternate, thinly veiled message: Since we disagree with you (and impute the worst attributes to your character),you will be a target anytime you step out into public, you will never be safe, and you will be made to suffer until and unless you repent. 

The "legal" views of this controversy should be instructed by this important, and universally overlooked, distinction.

Sunday, November 13, 2016

Free Speech and Election Protests

The political climate and low level of discourse among most protestors, regardless of whom they're supporting and whom they're opposing, is leading to "disinformation" and widely-held misconceptions (no, flat out errors) about Americans' First Amendment.

The First Amendment, the beginning of the Bill of Rights in our Constitution, binds and restricts government power. It, just like the rest of the Constitution, restricts what the government can do to the people. 

People can protest other people. That is not a First Amendment violation. In fact, private employers can restrict political speech by employees while in the workplace; that is not a government restriction nor is it a restriction on the "freedom" of the employee. The employee has a right to freedom from interference by the government regarding his or her speech -- but the employer has the right to its freedom of association, plus any de facto requirement to accept the speech of others is compulsion by any other name. That is antithetical to freedom. So we have freedom of speech (meaning, again, freedom from government restriction). We just don't have the freedom to compel others to allow us to speak, to dominate or to have a monopoly on speech, on opinions, or on reactions to speech. 


Sunday, October 30, 2016

How Hillary Can Block Email Production In Election Eve Controversy

There are reports that Anthony Weiner, the still-married husband of Hillary Clinton adviser Huma Abedin, has produced to the Federal Bureau of Investigation a laptop (and who knows what else) containing a lot of emails. 

[SIDEBAR: Check out my 2013 commentary on Huma Abedin's grace under pressure when Weiner's problems with technology resurfaced.]

There are a lot of known unknowns and even unknown unknowns here. We don't know what's on the laptop or even what's the focus of the particular investigation (there could be more than one) which prompts interest in whatever's on the computer, laptop or other computing device. We don't know the subject or target (that is, any particular person) of the investigation.

[PRIOR ANALYSIS: What are the Justice Department guidelines regarding investigations of active candidates for public office? Read more here.]

But I surmise that Huma Abedin, if interested in helping Hillary Clinton, would have opportunities to at least delay the process. I am not saying the run-out-the-clock strategy would work, and I am taking a politically agnostic view of this topic (so all of you can share an anger at me!). But politics is causing one heck of a rush to judgment. If we were back in colonial times, the chickens would be squawking and the tar would be boiling.

First, there are spousal privileges that can bar both testimony by one spouse against another, and the introduction through testimony of marital communications during the marriage. (For what it's worth, here's a Justice Department memorandum, mostly pertaining to immigration matters such as sham marriages, which discusses the issue and at the very end, lists five ways the privilege can be waived or challenged by the government.) There is no ironclad privilege, and I am sure plenty of people will want (for political reasons) the privileges to be defeated, but my point here is that an objection could be raised and there might be some interesting issues.

Second, I would be wondering whether Weiner was properly authorized to turn over anything as to which his ownership or control cannot be undisputed. Were these objects really his? Were these objects shared possessions? All of these possible hurdles must be overcome.

I believe that even if the facts are overwhelmingly in support of production, each obstacle presents several questions of law and of fact. That means there are hearings, briefs, more briefs and  rearguments. All of that can delay the ultimate resolution. That's because we have due process and Huma will be entitled to her day(s) in court to fight as hard as she wants, whether on her own behalf or as proxy for Hillary Clinton.

The only thing you can be assured of? There will be no quick resolution on this and definitely not before Election Day.

Eric Dixon is a veteran corporate and investigative lawyer whose analysis and keen judgment is relied upon by business and political leaders in sensitive situations. Mr. Dixon is also a co-inventor of blockchain technology improvements which are covered by two allowed and soon-to-be-granted patents. For inquiries, reach out to him at EDixon@NYBusinessCounsel.com.



Thursday, October 27, 2016

Independent contractor and freelancer worker protection in New York City

Certain workplace protections typical for employees will be extended to independent contractors and "freelance" workers for New York City businesses, under a new bill passed by the New York City Council today and expected to be signed into law by the Mayor, Bill deBlasio, soon.  But oppressed and exploited workers shouldn't rejoice too much, and may need to get a lawyer anyway to protect them.

Here's why. The bill could be onerous on businesses, which risks the unintended consequence of discouraging businesses from using independent contractors and instead (perhaps) prompt them to "hire" them as "employees." 

On the other hand, the bill requires written contracts for any "gig" with a value of $800 or more, and provides for damages and legal fees to be paid to the prevailing plaintiff. Court actions can be brought in state court (Supreme Court of each borough).

The intended beneficiaries? Anyone -- everyone -- who is an independent contractor or freelancer. 

Who's not covered? Lawyers, doctors, nurses (the bill refers to "medical professionals") and salespeople. (That, by the way, is to the benefit of those professionals, because the burdens of the bill potentially could discourage New York employers from using freelancers in those professions. Keep reading.)

Who's required to comply? Any non-governmental entity. This doesn't just mean all businesses. It means religious institutions, educational institutions, nonprofits, political campaigns, just about anyone and everyone who pays $800 or more to anyone without making them an employee. 

What the bill does*:

(* - Assuming the present version is signed by Mayor DeBlasio)
  • It establishes and enhances protections for freelance workers (independent contractors / not employees) including the right to written contract, the right to be paid timely and in full, the right to be free of retaliation. 
  • It provides penalties for violations of these rights, including statutory damages, double damages, injunctive relief and attorney's fees. 
  • If you want to bring a court action, you do it in state court in the Supreme Court of each borough. 
  • The government (NYC) can get involved when it discovers or suspects there is evidence of a pattern or practice of violations, and go to court to seek penalties of up to $25,000. 
  • Complaints from the public would go to the Office of Labor Standards (OLS) which will have to set up a system to adjudicate these complaints. 
I am fielding inquiries from affected businesses, nonprofits and churches and may be reached at either 917-696-2442 or via email at EDixon@NYBusinessCounsel.com.


Tuesday, October 18, 2016

Baseball Bat As Unlawful Weapon: Overcharging As Coercion

A New Jersey woman was arrested after a seemingly routine traffic stop, and charged with the unlawful possession of ... a baseball bat.

http://hudsontv.com/bat-crazy-or-crazy-cops-secaucus-pd-arrests-woman-for-possession-of-a-bat/

This seems like an over eager officer trying to overload a file, and overcharge a young woman, by throwing every conceivable charge.

Whether the charges are ultimately prosecuted by a municipal prosecutor is a different story, and municipal (town) judges also can dismiss the charge. However, prosecutors have government power and government resources behind them and the average private citizen facing even a minor criminal charge (misdemeanor) can be wiped out by the cost of hiring a competent lawyer.

One would hope that the imbalance in fighting ability is not encouraging police officers to meet quotas by overloading charges in order to overwhelm a hapless defendant and coerce, through the imbalance in resources, a guilty plea to at least one charge, regardless of the merits of any charge or whether any charge is furthering the protection of the public or deterrence of actual crime.

Here, we have a case of a woman basically arrested for charges including the possession of a baseball bat. So what objects these days risk being considered weapons?

In a day of the pressure cooker bomb, many everyday objects are conceivably dangerous -- if used for purposes clearly not intended by their manufacturers, wholesalers or retail sellers. But our authorities are entrusted with great power. It seems more discretion -- and basic common sense -- is in order.

Otherwise, such cases will weaken the legitimacy of the authorities and weaken the overall sense of justice. That would not further law and order; in fact, such cases risk justifying the meme that the authorities are out of control, that many prosecutions are illegitimate ab initio and that many people in government are crooked, corrupt or bent on violating basic civil rights.

It all starts with the discretion to use government power. Most of the time a scalpel will do, not a chain saw.

Monday, October 10, 2016

The Rule of Law and Investigating Your Opponents

The rule of law is fundamental to our culture, and the bedrock of our society. It is the reason why people felt comfortable buying farmland and starting businesses. The rule of law gives people the sense of security, the comfort, that their property won't be seized by mobs or the government and that there is "legal redress" against such abuses.

The rule of law was -- perhaps inadvertently -- compromised and attacked by Republican Donald Trump in the Sunday night debate. The vow to investigate Democrat Hillary Clinton for various alleged misdeeds (crimes?) has a chilling undertone.

When Trump declared, "you'd be in jail!" he signaled that his "investigation" would already have the conclusion picked out. This just isn't how credible investigations are done. This isn't how justice is done, nor is it the way to get (or retain) the perception of legitimacy among the general population.

Our governments have awesome power. Whether it's the small stuff like a permit to install an appliance, a license to cut hair or a food inspection permit, governments can exercise quite a bit of control over our lives. When governments have the power to regulate, to investigate and then jail criminals, the power is obviously much greater. 

Our rule of law and economic system is based on the premise that our "system" is sound and fair. Our Constitution (see the 14th Amendment) calls for the "equal protection under the laws" as a bedrock principle.

Once our property, security and liberty become more dependent on the goodwill of men, we move from being a nation of laws and a nation where an economy can flourish, to a nation of men whose favor we must seek and receive in order to achieve, build and keep anything.

These sentiments must be of prime concern. 

Saturday, October 1, 2016

Social Media And First Amendment Rights

The more politically active users of social media websites tend to complain that those sites censor their views, postings and other communications and do so in violation of their rights.

I will tell you that is nonsense, but there's plenty you can do about it anyway.

First, stop blaming the sites. While they may have biases as a result of having to trust the judgment of their employees tasked with content monitoring, the facts remain that the sites are privately owned and have the right to police content. These are also sites for which almost every complainant pays nothing! I've yet to hear a credible account of censorship from anyone who is paying for ads or preferred placement. Isn't that interesting?

The phrase "First Amendment" gets thrown around a lot as well. The First Amendment prohibits government interference with free speech. Facebook, etc., is not the government. Private entities have their own rights of free expression. Notably, that right includes the right to police and control content. If private entities or citizens did not have the right, they would then be effectively obligated to allow and be associated with certain speech they found objectionable.

Remember this: there is a difference between the right to speak, and the "right" to compel someone else to hear you.

All Americans have a right to free speech. But none of us have a right to force others to be our audience, to clap when we want applause and to agree with whatever drivel we imagine to be wisdom.

If you don't like the content control policies of social media websites, join a different one. Take your business and eyeball metrics elsewhere. It's that simple.

Tuesday, September 20, 2016

Investigative work into Ahmad Khan Rahami

I do quite a bit of investigative work and there are similarities between investigative attorneys (of which I am one of the few), actual government investigators and the declining number of investigative journalists.

Here is the product of research done in the last 24 hours since the name of the New York bombing suspect was released.