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Thursday, April 9, 2015

Overcriminalization, Not Overinvestigation

There is a good column on "overcriminalization" by the noted syndicated columnist George Will this morning. The direct link is below.

One item is missing from Will's analysis. He points out -- so does Harvey Silverglate whose seminal 2008 book "Three Felonies A Day" is cited -- that prosecutors often overcharge as a strategy to win cases (and induce defendants to take plea deals often requiring them to agree to a prosecutor's recommendation for a prison sentence of some sort) through what I will term a war of attrition.

But Will misses two points. First, the problem with abusive prosecutorial over-zealotry is that it threatens to ruin its victims. A defendant who successfully argues his or her innocence likely does so at the cost of financial ruin, never mind emotional ruin.

Secondly, it seems that the zeal to prosecute is not the same as, and does not involve, the zeal to actually investigate. It would be good to see this investigative determination when it comes to complex financial and terrorism cases, wouldn't it?

http://www.northjersey.com/mobile/opinion/opinion-guest-writers/when-almost-everything-is-a-crime-1.1305746

Wednesday, April 8, 2015

Law Firm Name Changes: Bad News Ahead

A law firm founder recently announced his retirement after decades running and growing the firm.

The biggest law firms in the world took and retained the surnames of their founders, years and sometimes decades after their retirement and then after their passing.

These law firms, and to a lesser degree other businesses like accounting and engineering firms, realized that the founders carried a brand name with their last names.

So why would a successful law firm change its name when its founder "retired"?

That's the question with the New Jersey law firm Wolff Samson, which has done just that.

The Samson there, firm founder David Samson, is reportedly under federal criminal investigation for matters pertaining to Bridgegate or the Port Authority of New York and New Jersey, or something else.

It is rumored -- just speculation -- that Samson could be indicted. (More likely, and my educated guess: A name change means the target knows what is coming, so retirement is a prelude to the revelation of a plea agreement, which will precede an eventual guilty plea to something or other.)

If any of that is likely, that would be the sort of bad news that might precipitate a law firm name change.

But Samson isn't just any partner.

He is a former New Jersey Attorney General, the highest law enforcement official in the state.

Removing his name has major significance. The type of significance that the Stalinist Soviets used to address, by erasing all historical evidence of disgraced or apostate former leaders.

And there is historical precedent in the clubby law firm arena. In the last decade, the securities class action law firm Milberg LLP used to be called Milberg Weiss Bershad Hynes & Lerach. That's until three of the name partners went to federal prison for racketeering conspiracy. And Milberg was no small firm; it was THE king of the hill in the securities class action lawsuit field.

So when a prestigious law firm dumps the names of its founders, you would not be wrong to at least suspect that bad news is waiting in the wings.

Friday, March 27, 2015

Official Comment on BitLicense 2.0: Progress, But Concerns Remain

The following official comment to the revised New York regulation, known as the "BitLicense," was submitted on behalf of certain industry participants by my office.

*****

To The Department:

This comment is submitted on behalf of Blockchain Technologies Corporation and its subsidiary entities which engage in the development of blockchain-related technologies and applications.

We are cautiously optimistic that the blockchain technology industry can work within and comply with the "BitLicense" regulation which was recently revised and resubmitted to the public for comment and review. Yet, valid industry concerns remain.

The revised regulation has made significant progress in recognizing the difference between digital currency (a more appropriate term than "virtual currency" which is used in the draft regulation) and the technology underlying it, and in further recognizing that regulation of non-currency uses would serve no public purpose while stifling a new wave of technological innovation.

On the other hand, the regulation threatens to impose serious compliance obligations on industry participants which hold, exchange or trade in digital assets such as Bitcoin.  These obligations are not expressly mandated. However, they are for all intents and purposes compelled by the regulation's requirements that companies have trained compliance personnel and systems for deterring money laundering, identity theft or identity fraud, and safeguarding any digital assets entrusted by customers.

We believe compliance with regulations designed to protect consumers and the general public are useful, certainly insofar as these regulations promise to encourage greater public awareness and use of Bitcoin (and other digital currencies) in commerce, and foster greater consumer and merchant adoption of digital currency as an additional means of exchange.  We further believe that a mature blockchain industry can and should welcome regulation, even if just to raise potential consumers' comfort level with the new technology.

We do, however, repeat our concern that the costs and demands of the initial application plus ongoing compliance requirements may drive less well-capitalized, but still valuable innovative industry players, out of New York. We fear such a development is likely to have an unintended consequence of reducing choice for New York consumers, including many small businesses struggling to attract and retain existing customers, as well as giving an advantage to industry participants in other states or offshore.

New York is the world's financial capital. There is no reason it cannot also be the world's Bitcoin capital. We urge further refinement of the BitLicense to reduce the burdens on smaller industry players while keeping its commitment to protecting consumers and fostering a free, equal and level playing field on which all industry members, both large and small, can compete fairly.

Sincerely,

Eric Dixon, Esq.
Eric Dixon LLC
116 West 23rd Street Suite 509
New York NY 10011
Phone 917-696-2442
EDixon@NYBusinessCounsel.com
http://www.NYBusinessCounsel.com/BitcoinLaw 

Tuesday, March 24, 2015

Gale Brewer Seeks Rent Mediation For Mom-And-Pop Businesses

Small businesses might face tougher rent increases if a New York City proposal is enacted.

That's because a proposed one-year rent increase cap and mediation will lead to landlords changing future leases governing their deals with tenants to account for what effectively becomes a government-mandated tenant-option to stay in a place and cap the increased rent.

The reason rents increase so much is that the typical commercial lease is at least ten years long. As real estate appreciates the rental value tends to also increase. In recent years the value of property has generally outpaced rent increases.

While the proposal seeks to protect small businesses, it fails to account for how landlords will adjust.

And the proposal utterly ignores the fact that tenants absolutely know for years that a lease is expiring. No tenant is caught unaware. What this is, plain and simple, is a giveaway to today's tenants with expiring leases.

Tomorrow's tenants will pay the price.

And so will all the customers who will pay higher prices on everything to make up for the landlords' lost revenue. After all, there is no cap on the expenses of a landlord.

See this link:
http://newyork.cbslocal.com/2015/03/24/manhattan-borough-president-seeks-rent-mediation-for-mom-and-pop-businesses/.

Monday, March 16, 2015

Double-Dipping Politicians: The Real Pigs

Election season isn't always a November end game, and in some places, municipal elections are in the spring. So it's time for the regular round of complaints about double-dipping and even triple-dipping elected officials who collect three paychecks as public servants.



The allegation from some quarters is that a public servant has time for only "one" job; therefore, getting paid for more than one job is somehow nefarious and (in the minds of opponents or those who simply don't let ignorance interfere with their speech) criminal.

The premises behind this allegation are disturbing. The first premise is that each job is a full-time job. That is untrue. Some public jobs are intended to be part-time, and the pay for those jobs reflects that fact. That part-time nature is further reflected in the fact that such officials are allowed to work other jobs. Think about the fact that most state legislators, county legislators and even municipal leaders in all but the largest cities are in fact part-time officials. 

Having more than one job is an economic necessity. This point is not disputed in today's economy -- except when it comes to public officials. 

The second premise, never stated because it would reveal the true nature behind the objection, is that people working more than one job somehow make too much money.  The reality is this: The objectors always feel, but dare not admit, that there is something wrong, something morally inferior, about anyone who makes one dollar more than they. The value component, what these people do to earn their paycheck(s), is not mentioned by objectors, because they lose on the value issue.

What's really behind the objection is envy. The objectors don't like that other people work harder and make more money. 

Just be careful about this point before you start pushing for laws to be changed to prevent people from holding more than one job. Maybe the real solution would be to pay public servants more, so they can afford to have "only" one job. And just maybe you'll have less danger of corruption by officeholders (like the recently indicted New York Assembly Speaker Sheldon Silver) who allegedly use their public office to illegally benefit their private outside business interests.

The real greed here is not by people who work at and perform multiple jobs. It is by the people who expect full-time work and full-time responsibilities from other people, but don't want to pay more than part-time salary. These are the people who want their service -- from public officials, from their doctors or lawyers or auto mechanics -- at a discount. They want to pay someone a part-time salary, modest at best, but have those people on call 24/7 because, well, because they work for us

These people make the worst clients and they also make the worst civic activists and neighbors.

They are the new moochers. And they are the real pigs at the trough.

Wednesday, March 11, 2015

Homewreckers: NJ Home Values Under Attack By "Affordable Housing" Court Ruling

Residential real estate values across New Jersey are at risk after an "affordable housing" decision handed down by the New Jersey Supreme Court Tuesday.


Affordable housing advocates applaud the ruling because it paves the way for activists and low-income homeowners (the group theoretically with standing) to challenge any municipality's alleged noncompliance with "its fair share of regional present and prospective need for affordable housing" in any trial level court, which in New Jersey is the Superior Court in each county.

Some municipalities also are happy because the ruling allows towns to demonstrate their compliance prior to and without being declared noncompliant.

Here's the problem: Who's going to be there to argue for the rights of existing homeowners whose property values are at risk?

Any town's housing plan can now be challenged, and soon. This means that judges in each county, and throughout the state, can upset a town's housing plan and by extension the residential real estate market in that town by halting or modifying certain development.

The effect on residential real estate is highly uncertain. But uncertainty is not good for the value of any asset, and here it is not good for real estate, not residential and not commercial. No owner knows what could be developed (or not), right around the corner.

Certain development enhances the value of nearby properties. Other development detracts from it. 

When the courts begin getting involved soon, the danger is that town zoning plans will be decided by judges hearing lawsuits brought by activist groups arguing for more low-income development, and municipalities arguing that they are in compliance with state constitutional guidelines and New Jersey's Fair Housing Act. 

Who's missing? That's right, there is no one to argue for the preservation of the property values of the existing property owners. And that silence, that absence, is likely to mean that property owners whose home values will be at risk will also be without a voice in many or all of those courtrooms. It is likely to mean those concerns will never be heard, and never considered, by any of those judges. 


Saturday, March 7, 2015

Menendez Prosecution: Explaining The Process

There are many sobering points about a potential criminal prosecution of Senator Robert Menendez (D-Hoboken). Here is a short list:

1. As of now, Menendez has not been charged with a crime nor has he been arrested. I urge readers to wait until all the facts come out. That means waiting until you see, and actually read, the government's charging documents filed with the federal court. Even then, understand you will be reading just cherry-picked facts. A much fuller picture (for better or for worse) will come out in the trial. 

2. Sometimes, there is no trial. But that will happen only if the charges (if they're ever filed) get dropped, or Menendez should plead guilty to a crime. Federal prosecutors rarely admit their mistakes, so don't hold your breath hoping this is one of those cases that get closed after charges are brought.   

3. Don't hold your breath waiting for Menendez to resign. His term expires at the end of 2018. And the trial, if there is one, will not be around the corner. There will be motions, requests for discovery, hearings and plenty of other action behind the scenes that will cause the trial to be postponed for months if not years. This trial may not occur until the summer of 2016, or later. 

4. Can we say right now what federal criminal charges would be brought? No! Absolutely not. We can only make educated guesses. There are reports suggesting the feds' inquiry into Menendez concerned whether he interfered with another federal inquiry into his friend Dr. Salomon Melgen. This would risk an obstruction of justice charge. There have been multiple reports about the value of the private jet trip which Menendez apparently failed to report. Sometimes these minor, administrative campaign finance reporting mistakes can be the basis for a criminal case! (One of the Bid Rig defendants here in Hudson County served nearly two years in prison for a rather technical and seeemingly minor delay in reporting a campaign contribution from the notorious Solomon Dwek, which he still insists was not a bribe.) 

There can be other "out of the blue" charges, based on the information that cooperators provide and which is believed credible by prosecutors.  Let's start with his friend Dr. Melgen. Dr. Melgen has reportedly been under investigation regarding his medical practice for at least two years. Press reports have concerned the use of Melgen's private jet, a trip (or trips) to the Dominican Republic, even allegations of favors involving underage prostitutes. Let's see what actually sticks. 

That last allegation is borderline funny. Who needs to go to the Dominican to get underage prostitutes? One can do that (or so I hear) right in Hudson County! Luisa Medrano (an infamous cooperating witness against former Guttenberg mayor David Della Donna) used to run that business out of her bars in the northern part of Hudson County. She avoided potentially lengthy jail time for sex trafficking of minors. She got probation! How did she do that? By finding a juicy "name" target at which to point an accusatory finger, and then selling that to the United States Attorney's Office.

And who ran that office at the time? Our current Governor, Chris Christie.

5.  In the criminal system, there's always one question: How much jail time is at issue? There is no way to know right now. It depends on the charges that are brought and which are ultimately proven at trial, or admitted to by the defendant. Even then, the government and defendant can negotiate on what a plea covers. There is plea bargaining, and then there is a practice known as fact bargaining. This is how jail time can get negotiated down, because the facts and scope of a crime to which one admits affect the assessment of the crime by the judge. Remember, the sentence is set by no one but the judge. The government can "make a deal" but it always must advise the judge of its recommendation. That's why there is this thing called a "5K1.1" letter, which is a government recommendation of a particular sentence length range. There are complex numerical-based federal sentencing guidelines that account for the severity of a crime and enhancing factors (which add time) and mitigating factors (which reduce it). 

This all becomes particularly important with public officials, because the federal sentencing guidelines treat elected officials' crimes much more stiffly than those of ordinary civilians. Yes, justice is NOT equal. The elected official status of public officials is an enhancing factor. So is the "leadership" role in any business. Remember this: the more accomplished you are, the higher profile you have, the worse you get treated and the greater risk you face in the federal justice system. Also be aware that the "name" status of any defendant is one which can have personal appeal for prosecutors. After all, they are human, they want to make their careers, and a "big name" case can make their career in the private sector. So elected officials, business owners, pro athletes, anyone with a profile, is almost by definition a good target. 

Remember this the next time you think the "rich and famous" get special treatment. They do! It just happens to work against them.

6.   That last point brings us to a key component of how the federal criminal justice system works. It is reliant (perhaps too reliant) on the witness testimony of people who almost always are trading testimony in return for leniency or absolution (i.e. a shorter jail term or none at all). This raises two questions. One is whether Dr. Melgen would be a witness against Senator Menendez. That question may be answered in any charging papers (so stay tuned). The second question is whether, down the road, Senator Menendez would be inclined to "spill the beans" against any sort of people as to whom criminal misconduct may be found. There is a powerful incentive as prison sentences for "cooperators" are often much shorter than those 

This is why, for many in the political world, the only question about Menendez is not the substance of any charges he may face; it will be whether he can and will "flip" on them. You'd better stock up on antacids if you're nervous.

7. Any federal felony sounds serious and they all are. But some are more serious than others. Obstruction is one thing. Bribery and fraud are something else and even more serious. Just this week, a former New York City councilman, Dan Halloran, was sentenced to ten years in federal prison for a bribery scheme in which Halloran was part of a scheme to sell the Republican nomination for New York City Mayor to a Democrat. Yes, you read that right. 

On the other hand, former Clinton Administration National Security Advisor Sandy Berger got probation and a fine for destroying official documents, which he secreted out of government buildings by stuffing them down his pants, in his socks and possibly in other places we don't want to explore. You will hear "corruption" and other horrible terms. Just don't rush to assume that Menendez is facing a decade or two in prison. 

8.  The final point is the human dimension. Someone under investigation, and definitely someone under indictment, will experience tremendous pressure from all sides. I have consulted with people who claim to have suffered multiple heart attacks while awaiting trial. This is a process whereby the government will use its leverage, including the pressure it can exert using all of its power at its disposal, to convince (or force) a defendant to "cry Uncle" and give up. 

From the people I've dealt with, both as released offenders and as government targets, and also from my personal experience with the government, one thing is certain. Resisting the awesome power of the government, and asserting your innocence, will definitely change you. The power to prosecute, indeed to jail you and basically affect the remainder of your life, is perhaps the greatest power the government can wield and also perhaps the power most susceptible to abuse. 

The people who stand up to the government deserve a measure of admiration. Some, to be sure, are delusional or irredeemably defiant. Others are stone-cold innocent, perhaps just in the wrong place or too close to the wrong people at the wrong time. The criminal justice process is not perfect, but it seems to winnow out the fakers and the frauds. Time will tell on this case as well.

Eric Dixon is a New York-based corporate lawyer and a member of the New York and New Jersey bars. He has represented public and private companies, corporate officials and elected government officials on various business and investigative matters over a 20-year career since graduating from Yale Law School in 1994. He can be reached at EDixon@NYBusinessCounsel.com.

Wednesday, March 4, 2015

State of Emergency: A New Jersey Snow Job

As I write this the New Jersey Governor has declared a state of emergency for the state for Thursday.

The stated reason is an expected six inches of snow.

The real reason may be more nefarious: to buy time under the state's equivalent of the federal Freedom of Information Act (which is the Open Public Records Act) to answer and formally deny various requests for public records.

Under OPRA, the state (or any local or county government or agency) must respond to the request for records within seven business days. Failure to meet this deadline means the request is deemed to be denied, and this gives the requestor standing to bring a lawsuit. Various government agencies routinely deny records requests and then end up paying legal fees when reporters or citizen watchdogs actually win in court. (I've brought and won cases against both the Governor's Office and City of Newark.)

So where does a snowstorm state of emergency come into play? The state of emergency shuts down state offices and any closed days do not count against the seven day period. It's a way to use the cover of a snowstorm to buy time to figure out what to do about those pesky OPRA requests.

And with Governor Christie getting ready to run for President, those records requests might just accelerate a little bit more.

Eric Dixon is a New York-based corporate and investigative lawyer who also handles New Jersey matters.


Monday, March 2, 2015

Surviving In New Markets: Economic Affinity And The Role of Power

Starting up a new business means you're the plankton in the shark tank. So how do you go about not becoming dinner?

Entering new and hostile markets can be achieved, and a permanent footprint established, with the right deployment of resources.

If power is most effective when coalesced, it follows that economic power is similarly most effective when combined among a group.

When that group has an additional tie, such as an ethnic or shared experience affinity such as church membership or the trauma of wartime military service, the economic power can be very formidable indeed.  This breeds the theory that collective economic power exercised by an inclusive, self-defining group (on a criterion or basis of its choosing) can be effective. 

If you're already thinking this sounds remotely like a boycott, and hence sort of anti-competitive and hence illegal, hold that thought.

It is useful to remember that this elementary exercise of economic power is first and most commonly used, not to stifle competition. Collective group power is, at its core, not so much self-interest as it is self-protection against hostile larger groups with more power. Outnumbered or poorly-established groups such as minority groups or newcomers to an industry or market, often seek to combine their power in a form of mutual self-interest. This may manifest itself in the creation of small chambers of commerce or local "business improvement districts," or anything that can convey strength in numbers to more powerful entities (i.e., government, larger competitors, suppliers, etc.).

Such collective action can have other effects in preserving, enhancing and concentrating the wealth of its members, and affecting the behavior of outsiders, third parties not yet in the group, through a risk-reward system that conditions admission on certain behavior and discourages unwanted behavior through expulsion and punishment.  

When does such activity transform from self-protective into anti-competitive?

It is useful (and necessary) to look at guidance from regulators. The apparent focus of the Federal Trade Commission is on preserving competition. Here is some of what the FTC has to say on the matter:
"In order to compete in modern markets, competitors sometimes need to collaborate. Competitive forces are driving firms toward complex collaborations to achieve goals such as expanding into foreign markets, funding expensive innovation efforts, and lowering production and other costs. 
In today's marketplace, competitors interact in many ways, through trade associations, professional groups, joint ventures, standard-setting organizations, and other industry groups. Such dealings often are not only competitively benign but procompetitive."
 But wait, there is more:
"But there are antitrust risks when competitors interact to such a degree that they are no longer acting independently, or when collaborating gives competitors the ability to wield market power together." (Emphasis added.)
And finally, as if to emphasize the phrase I've highlighted in bold text:
"Any company may, on its own, refuse to do business with another firm, but an agreement among competitors not to do business with targeted individuals or businesses may be an illegal boycott, especially if the group of competitors working together has market power."
(Again, emphasis is mine, in bold.)

The lesson from these statements is that startups and smaller companies have plenty of room to use their modest power to survive and then establish a foothold in a market.  Once companies become established and arguably dominant, whether individually or collectively, that is a different story altogether.

There is plenty of maneuverability for young companies and smaller companies which do not have "market power" and thus need the protection of numbers from other "players" with common interests. This is where the affinity of shared interests, and of shared values, economic and otherwise, can be critical in establishing loyalty among customers, vendors and even some other market participants whose leaders recognize that today's competitor may be tomorrow's joint venturer.

The message: Affinities based on shared interests and shared values can be very useful to an up-and-coming business. One key is learning to recognize the affinities. The second key is to use them.




Monday, February 23, 2015

Private Equity: How Great Judgment Sets The Best Apart

A startup or young business is really dependent on the quality of its advisors.

Critical needs are having one or two good lawyers, accountants and other general "fixer" type advisors.

But what makes a really good advisor in this sense?

Technical knowledge, certainly. That goes to merit. However, knowledge is often a commodity. That means that ability is often taken for granted...and no longer becomes a difference-maker.

That's right, the real difference that adds value is not know-how. 

The true value-added component is great judgment.

This judgment metric is hard to define. However, it is best measured when dealing with the unexpected. That's where the skill set, the gravitas, the experience, all comes into play. And those are the attributes most often poorly measured by conventional, inside-the-box metrics like resumes, academic credentials and so on.

I cannot tell you how many people I've met who have graduated from top-twenty law schools who have absolutely no business being lawyers. Smart, they are, and accomplished they've been, but the judgment and often the basic emotional intelligence has been lacking. (Such people are good, though, at hiding their dysfunctions in large offices where they actually go largely unnoticed except in e-mail in-boxes.) 

This judgment value-add goes hand in hand with the other critical component of compatibility. In other words, your advisors and lawyers need to share your values.

This might be an argument against diversity. A business needs to have its people on the same page, and this is particularly critical the smaller, younger and more fragile the venture is.

Diversity doesn't necessarily mean that your advisor isn't "on the same page." However, when you're at that early stage, you need to have the great seamless fit. That is your first top priority.

Picking someone on whatever diversity metric is in vogue (and such metrics often result in the precise opposite!) means you aren't selecting a trusted advisor because you work well with them and think along the same lines. And many business owners and managers make huge mistakes, because they think diversity means they have to look for people who are the most obviously different from them. The result is that small businesses think they have to hire people who think the most differently.

Gee, do you think that is likely to bring people with shared values into the fold? Me neither.

But that's how many businesses, both large and small, end up picking on diversity grounds the very people who are the worst fits in the organization. Is it any surprise those newbies then end up being the most miserable and leaving the soonest?

Simply put, value your values, value compatibility, and choose accordingly. 

And if you look closely enough you'll realize you'll have more diversity in the room than you ever intended. 

Eric Dixon has been a New York corporate lawyer since graduating from Yale Law School in 1994. He runs his own legal and strategic advisory practice Eric Dixon LLC and is very active in blockchain technology development with Bitcoin clients. 




Saturday, February 21, 2015

American Exceptionalism: No Place in American History

This term -- American exceptionialism -- has become quite the rage in Republican circles the past few years. The context in which it has almost always been used, to exhort us to behave or assume responsibilities for others, just has never sounded quite right. It's often reminded me of the smug nags who profess to be morally superior and lord over their inferiors. There was just...something that didn't sound or feel right. (Update: An outlier arguing that exceptionalism means America is, well, exceptional, is the Kyle Smith op-ed, just published hours after my article.)

Now, growing up as a poor conservative, I never heard of the phrase "American exceptionalism."

I never heard Ronald Reagan use that phrase. Never. Not once.

Neither did a certain University of Virginia politics professor. Check out this passage from James W. Ceasar, writing in 2012:
THE MEANINGS OF EXCEPTIONALISM 
Until recently—say the last 2 or 3 years—few outside of the academic world ever encountered the term "exceptionalism." It was reserved almost exclusively to scholarly discourse, used mostly by social scientists and occasionally by historians and students of American studies. Today, the word has become ubiquitous, appearing in political speeches, newspaper columns, and blogospheric rants. Exceptionalism has gone viral. It serves for the most part as a term of polarization that divides liberals from conservatives.
(Ceasar, at page 2. Emphasis is mine.)

There's more. Various sources across the Internet claim that Alexis de Tocqueville is the father of the concept. Typical Internet claim: nonsense. Certainly I haven't been able to find the phrase or concept in his writings. And neither could Professor Ceasar. See this:
Its frequent use in social science before it exploded onto the political scene might lead one to think that the term goes back far into American history. But this turns out not to be the case. Take John Winthrop, the person most often associated with originating the concept. Aboard the Arbella in 1630, Winthrop described the Puritan settlement to be built as "the city on the hill," a phrase usually recalled today, thanks to Ronald Reagan's embellishment, as "the shining city on the hill." And Winthrop went on to add the further exceptionalist theme that "the eyes of all people are upon us." But nowhere did he ever refer to his position as his doctrine of "exceptionalism." Nor for that matter did Alexis de Tocqueville. Tocqueville is widely credited with having developed the social scientific idea of exceptionalism, meaning uniqueness in relation to most other nations. America, as he showed, was distinct in its historical circumstance of having experienced no feudal past. But what of the term? Modern analysts have scoured Tocqueville's works in search of a mention, in the hope of receiving his benediction. All of their prodigious efforts have yielded no more than one oblique reference, which on examination has no relation to any plausible meaning of the concept. In explaining why Americans do so little to cultivate the arts and sciences, Tocqueville attributes the deficiency to the harsh physical conditions that originally deprived them of the time and leisure to develop a higher culture: "the situation of the Americans is therefore entirely exceptional, and it is to be believed that no other democratic people will ever be placed in it". (Ceaser at 5.)
And here is Professor Ceaser's best line, from the end of that paragraph:
If this is the meaning of exceptionalism, Americans who favor the term should probably consider fleeing to Great Britain. (Ceaser at 5.)
Yes, that Great Britain, the kingdom whose tyranny of taxation inspired the original Tea Party and this little insurgency called the American Revolution. Something which today might be considered some lunatic fringe extreme right-wing violent movement. 

And as for Reagan? Professor Ceaser wrote that Reagan never used the term, and perhaps at best, expressed a similar concept in his famous farewell address:
I've spoken of the shining city all my political life, but I don't know if I ever quite communicated what I saw when I said it. But in my mind it was a tall proud city built on rocks stronger than oceans, wind-swept, God-blessed, and teeming with people of all kinds living in harmony and peace, a city with free ports that hummed with commerce and creativity, and if there had to be city walls, the walls had doors and the doors were open to anyone with the will and the heart to get here. That's how I saw it, and see it still.
You can see that, as with any good speech -- or lawyerly rhetoric -- the words become the vessel into which others may read into it their desired meanings.

But that doesn't mean Reagan was ever a proponent of "American exceptionalism." Nor was any other American conservative who sort of knew what he or she was talking about. 

Ceaser concludes:
"Ronald Reagan, as far as I know, never used the term "exceptionalism." (Ceaser at 6.)
That phrase "American exceptionalism" is now quite the rage among Republican Party speakers and wannabes. Here is one recent example from former New York City Mayor Rudolph Giuliani, speaking on Friday. Giuliani is, as we all know, a legendary conservative philosopher. But all these current uses don't mean any of their speakers really know what it means.

In fact, the use of the term "American exceptionalism" might only signal what so often is signaled by those who use big words hoping to sound smart and only reveal their ignorance.

If American exceptionalism means this country has unique values, that's one thing.

But if American exceptionalism means we have a special duty or obligation to go fix things in the rest of the world, which are neither our doing nor our responsibility, and particularly when it's at the cost of our young men and women's lives and our national treasury, well, that is entirely something else and it doesn't sound very appealing.

In fact, it sounds like your abilities give rise to your duties.

That's not a reward in any rational sense. That's a punishment, if in fact you are exceptional. 

In fact, it sure sounds like this: 
From each according to his ability. to each according to his needs.
And that's from Karl Marx, writing in 1875. (I link to a nice website with plenty of Marxist rhetoric, and I recommend you spend a lot of time reading it.)

You don't have to be an Ayn Rand Objectivist to see -- or more accurately, feel -- that this principle feels more like a punishment, a strong disincentive, for doing well, for being good. This is the psychological basis for schadenfraude, for class envy, for the "Meann Girls" and frenemies who secretly hate the Homecoming Queen for being, well, "popular."

This is all the stuff that, if observed by a senseless space alien, would lead it to conclude that the objects of such demands were indeed being derided, despised and indeed punished -- for, naturally, being exceptional.

On the eve of next weekend's Conservative Political Action Conference, one may want to hold back on using "American exceptionalism" until one understands its place in the rhetorical pantheon of Marxist-style class envy and redistributionist ethics. 

Eric Dixon is a New York corporate lawyer who is active in Bitcoin and blockchain technology development and has represented several major political campaigns on opposition research and election law matters. 

Saturday, February 14, 2015

New York Real Estate: What the Future Holds

Effective immediately Eric Dixon is handling New York real estate as a broker, a lawyer and an industry analyst. Full-service one stop shopping.

This is another way you readers can leverage my economic and legal analyses and experience with your needs in the real estate sector.

In the past I have written extensively in criticism of foreclosure legislation that could hurt innocent, and paying-on-time homeowners. I will be continuing, and expanding, my focus.

But commercial real estate owners are a constant target.

They are targeted by lawmakers, by tenant "advocates" for shakedowns, and crooked personal injury claimants who are trying to make a quick buck.

So watch this space for increased coverage of the legal and economic issues in this sector.


Monday, February 9, 2015

The Zombie Jobs Recovery

Looking long term over a seven year period going back to Bush and pre-TARP:
 
  • Actual raw employment has barely increased, despite population growth – see the nearly 7% increase (about one percent annually) in the civilian noninstitutional population -- and significant immigration;
  • The civilian labor force has barely grown, despite population growth and significant immigration. The seven year increase since December 2007 is microscopic.
  • In fact, the seven-year civilian labor force increase has been less than the average annual increase in the civilian noninstitutional population.
  • In the same interval, there has been an approximate 501,000 loss in self-employment, a metric included in the “employed.” ENTREPRENEURS AND SOLE PROPRIETORS AND SOLO PRACTITIONERS HAVE DISAPPEARED AND HAVE NEVER COME BACK FROM 2008-09. 
  • Looking most optimistically at the reported data, at best, the raw numbers of TOTAL employed, NOT COUNTING the self-employed, have grown about one percent – over seven years.
  • Despite the foregoing, the number of those not in the workforce nor in prison has exploded by more than two percent annually, outpacing regular population growth and more than double the growth of the civilian noninstitutional population.
  • In fact, the seven-year growth of the “not in the labor force” category accounts for nearly the entire growth in the civilian noninstitutional population.
There's more in my new economic research report, published by the Financial Policy Council this morning.




Friday, February 6, 2015

Grading Bitlicense 2.0

The redraft of the dreaded New York State digital currency regulation is out. Most consumers will benefit from the progress towards a final regulation, as any completion of the regulation drafting process means consumers and merchants are one step closer towards increased ability to use and accept bitcoin for payment. In addition, Bitlicense 2.0 allows for real bitcoin "banking." However, the compliance costs remain formidable, and as such, the bitcoin technology community remains profoundly affected by the regulation. 

My initial concerns about the first draft of the regulation were geared towards the blockchain / bitcoin tech community, and I use those concerns to guide my analysis which now follows.

My first concern in July 2014 was that the regulation would pose a great burden on upstart industry participants without the great financial resources of major international financial institutions. That concern remains with Bitlicense 2.0. 

The redraft levies a $5,000 nonrefundable application fee on industry applicants, and the formidable application process asking for a wealth of information, and significant capital requirements for industry participants, still remain. In addition, a notable improvement is that bitcoin companies would be allowed under Bitlicense 2.0 to keep their required capital in a variety of instruments including virtual currencies as well as cash. Bitlicense 2.0 junks the absurd original proposal that mandated licensees be "permitted to reinvest its retained earnings and profits" in only short-term cash equivalents or United States government debt.  This allows bitcoin "banks" to use digital currency to meet part of their net capital requirements, and starts the move towards banking using digital currencies and the move away from vaults holding just the digital currency. It isn't perfect, it isn't true leverage, it doesn't allow an expansion of the money supply, but it is a start.  

There was and is still the concern that regulation, however well-intentioned, would lead to eventual domination of an emerging field by large multinationals (which as licensed banks are exempt from the regulations), who may eventually end up hiring the very same regulators in the symbiotic revolving door between big business and big government.  There were other concerns within the industry that the regulations are either designed to or likely will force smaller players out of the industry or at least out of the New York market in favor of established financial institutions, which not coincidentally are the same institutions most likely to be potential future employers of today's regulators, legislators, lobbyists and other "players" in the government. Those concerns were not necessarily misplaced, and those concerns are not entirely allayed. In fact, they may remain. Industry participants are now coming closer to the time when they must confront the reality of having to register or change how they do business to comply with the New York regulation. 

Bitlicense 2.0 also retains the problematic overreach from its expansive definition of "New York Person." The term is defined to cover anyone with any physical presence in the state. The revision further retains the burdensome reporting and recordkeeping provisions on cybersecurity, on the know your customer, anti-money laundering and suspicious activity reporting requirements and on any customer accounts for seven years.  

However, not all the news is bad. The revised regulation offers some important new exclusions. The redraft narrows the definition of virtual currency to exclude from regulation any payment system technologies. This appears to help existing payment processors by allowing them to use and accept bitcoin. It will also help the big financial institutions. This should help pave the way for bitcoin's wider acceptance, and for the average consumer who wants to use bitcoin as an alternative to cash, this is a win-win. 

The many uses of blockchain technology for non-currency, non-transactional functions are also excluded from registration. (Full disclosure: I work with several companies working on such technologies.) That is courtesy of an important and probably overlooked carve-out at the end of the definition of "Virtual Currency Business Activity," which reads in the revision as follows:

Virtual Currency Business Activity means the conduct of any one of the following types of activities involving New York or a New York Resident: (1) receiving Virtual Currency for Transmission or Transmitting Virtual Currency, except where the transaction is undertaken for non-financial purposes and does not involve the transfer of more than a nominal amount of Virtual Currency; (2) storing, holding, or maintaining custody or control of Virtual Currency on behalf of others; (3) buying and selling Virtual Currency as a customer business; (4) performing Exchange Services as a customer business; or (5) controlling, administering, or issuing a Virtual Currency. The development and dissemination of software in and of itself does not constitute Virtual Currency Business Activity. 

On the bright side, it is encouraging that regulators recognized the many non-currency uses for blockchain technology and that the original regulation threatened to stifle or squash altogether or drive out of state the innovators behind the "blockchain 2.0" tech movement. These concepts and innovations are apparently now safe from the Bitlicense registration requirement. The redraft of the business activity definition recognizing the concern that I and a few others expressed this past summer is a win-win for the blockchain community, even if most consumers thinking only about bitcoin-as-currency never notice.

However, for the wallets and other internet sellers of bitcoin, this still-expansively defined term will mean they need to get New York licenses or otherwise not do business with New York "Persons." The reporting requirements under the Bitlicense are formidable. The compliance costs, whether in-house or outside professionals are used, will be significant. Bitcoin companies must do a cost-benefit analysis and weigh the costs against the risk of permanently losing market share and business to conventional banks. In all likelihood this means the bitcoin-currency companies will lose, at least for now, a potentially lucrative market unless they go through the regulatory hoops for the Bitlicense.

Eric Dixon is a New York corporate and regulatory lawyer with several bitcoin and blockchain clients. 

Thursday, February 5, 2015

Valhalla Railroad Crossing Design May Be Cause Of Tragedy


The Valhalla, NY accident that killed seven and injured scores more when a Metro-North commuter train struck an SUV stuck on the tracks and inside the road crossing gates

But could the accident have been prevented with better road design and location of the railroad gates?

Look at the picture above, of a simple crossing. (This is NOT Valhalla, NY.) It is an old design for a rural road. Today's roads have much more traffic.

I suspect there is a design flaw that has its roots in our changing world, old infrastructure, and planning based on assumptions, behavior and conditions as they existed decades ago but which are no longer "safe" given all the changes since they were designed.

Just as old highways and bridges must be retrofitted or replaced to accommodate today's heavier trucks and higher traffic volume, railroad crossings and their feeder roads are no different. 

These crossings, particularly in today's suburbs, were designed decades ago when the crossings were in lightly-traveled and distinctly rural roads. Neither the crossings, meaning the gates, their location and even the design of the roads leading to the crossing, were designed for today's traffic volume and conditions. 

If today we had the vastly lower traffic volume of decades ago, we would likely see a vastly reduced if not totally removed temptation to "beat the light" or "beat the crossing." I would suspect that would result from there being simply less pent-up frustration over either previously encountered traffic or anticipated future traffic. If there is less traffic, one will generally feel much less of a need to "save time." So there is the residual effect on behavior. But I'm not even saying that is the cause, although it is the first thought on many people's minds.

The gates should be farther from the tracks. That is to account for drivers being on autopilot or otherwise very distracted by the many colored lights they see on the road. (Note that I am not attributing anything to distraction from cellphones or other gadgets which now proliferate in today's model vehicle.) It is actually easy to get confused by red lights for RR crossings and red lights for rear side car lights. You may say it never happens to you, or that this one driver was "stupid." But it only takes one incident, one distraction. Perfect drivers for decades get caught in split-section bad reactions all the time. A reaction is not conscious thought. It is a reaction, more like instinct. It can be wrong, but that is applying rationality to a quick, hair-trigger response. Do I stay or do I go, at a particular point in the road. It's not as easy as it sounds, even if you could view it as "contributory negligence" on the part of the driver. (Count on that theory being used in any defense.)

The railroad gates in use up there are like the railroad gates used on country roads 60-70 years ago, when there was far, far, far less traffic and thus far less distraction. The world has changed. The infrastructure has not. 

Very simply, today's transportation infrastructure was designed for a much different world. That infrastructure, those style of crossings, even the layout of the roads leading to the crossing, would not likely be employed if the road and crossings were being designed today with today's traffic demands and driver behavior in mind.

UPDATE Feb. 7th: It turns out the state DID have plans to install more warning lights but never got around to doing so. 

Tuesday, February 3, 2015

Women And Intimidation: Perception or Fact? Looking At The Numbers

Behind the provocative headline lie some interesting federal government statistics that might warrant a rethinking of long-held assumptions about the workplace.

Sometimes the product of my deep-dive investigative fishing expeditions is the revelation of a shocking item buried in a government report. This is one example. Federal government data compiled from the last United States decennial census reveals that the lowest ratio of men to women, among counties with a population of 100,000 and without being skewed by women's colleges, are in none other than Manhattan (New York County) and The Bronx. Each borough has 88.3 men to 100 women.

The national average, incidentally, is 96.7. 

The Census data also breaks down the sex ratio (defined as the number of men for every 100 women) by age. The Y chromosome is dominant in utero, resulting in more male live births, but maleness is also a mortality risk. No matter what the age, more men than women die. And after about age 70, there is a sharp decrease in the number of men relative to women.

The result is that the sex ratio goes from being skewed against men (it is about 105 for those under age 20 or so) to about even for the twenty-somethings, to crossing below 100 in the early 30s age range. (See Tables 2 and 3 of the linked report.) 

Therefore, if some women are wondering why it's so difficult to find a good man -- or whatever they're saying these days -- the scientific explanation may not lie in psychology or values or bad luck. 

It may lie in two factors.

The first is a pure numbers game. There is an oversupply of women relative to men. 

The second is the result of discomfort with correctly perceiving the shifting balance in the sex ratio, which is quite skewed against men up to the college-age years, then evens out, but then gradually and relentlessly tips against women after the early thirties.

In essence, women grow up thinking they are outnumbered -- well, because it's true -- and being outnumbered can lead (warranted or not) to feeling intimidated...but then the numbers do change,

The problem is that the perception, mostly by women, does not change.

When you realize that women's outnumberedness and being intimidated actually underlies a lot of current public policy manifested in our workplace laws, inheritance laws (side note: Go visit any Surrogate's Court in New York) and a myriad of our laws, you might start to understand that this discomfort, and not any actual numerical disadvantage, drives a lot of public policy.

This discomfort -- which I compare to a pitcher who suddenly loses five miles an hour on his fastball, usually around age 34 -- has important policy implications.

It has become an article of faith, not to even be questioned, that education is skewed against girls, and henceforth special efforts must be made to make girls feel more "comfortable." This perception may have its genesis, not necessarily in the myth of male behavioral dominance, but in their numerical superiority through the educational years up to college age. 

But upon entering the workplace, which most people do in their twenties, the numerical dominance (as measured by the Census data, and not in any one particular work environment) just disappears. It is not there. The data confirm this.  Men simply...disappear, it seems.

More men die.

Perhaps the assumption that women need extra legal protections because they are dominated by men in the workforce is not merely grounded in perceptions of behavioral differences by "alpha males," but also in the historical perception that since boys outnumbered girls in elementary school, the workplace is similarly populated. 

The sex ratio statistics do not bear this out. 

Women may not be happy, or fulfilled, or as dominant (that is a matter of perception) as they wish, but the growing female numerical dominance from the years approaching middle age and onward may suggest that male dominance is more myth than reality.


Friday, January 30, 2015

Fame And The Bad Element

Sometimes the best lawyers are the ones who understand human nature. This trait is very useful in representing high-profile clients in business or politics, or those who "have money," and even known figures in the entertainment industries.  It is useful, and those clients need that skill, because they are constantly being surrounded and besieged by users, hangers-on and parasites who will often enable bad habits, facilitate exploitation and eventually leave some very successful people very broke.

That is the skill which allows you to see things through the eyes of your adversary. That's true whether you're negotiating, or fighting out something (which is a tactic that is part of negotiating). It's why the legal process and especially litigation is described as adversarial. It also explains why mature lawyers must be able to assert themselves. Shrinking violets put their clients, and themselves, in harm's way, and there are many lawyers who simply are ill-suited to be advocates and representatives for anyone else.

If you are someone who is developing a profile, who is becoming "known," who is starting to have a problem walking in midtown Manhattan without being recognized and stopped, here are some of the things you need:

1.    Get independent advisers who answer only to you, not to your inner circle. The inner circle you think is protecting you might actually be the source of your problems.

2.    The confidential advice given to you by your advisers should always stay between you and your advisers. See point 1.

3.    Have an audit done. Never be afraid to check and test those around you. You might be afraid of what you'll discover, but if you're that afraid now, there is probably a reason. Trust your gut. 

4.    Never confuse employees with friends. There are plenty of people who will pretend, for months and for years, that they are your friends. Some may even keep up this ruse through the first few years of marriage. But the common denominator that almost never fails is the test of adversity. When the candy train stops, see how quickly these hangers-on bolt for the door. The true test of friendship is who sticks with you when you have nothing, or simply if you shut the spigot. Again, see point 1.

Eric Dixon is a New York lawyer, advisor and strategist who runs the website http://www.NYBusinessCounsel.com and can be reached at EDixon@NYBusinessCounsel.com.


Monday, January 26, 2015

Stranded By The Storm

As a blizzard descends upon much of the urban Northeast, many state and local governments and transportation agencies are shutting down roads and vital transportation crossings. For example, the Port Authority of New York and New Jersey is shutting down the PATH interstate train and all six bridges and tunnels between New York and New Jersey at 11 pm tonight. The scope of the shutdown will literally strand travellers, and it will strand workers.

The offered reason is that this is being done for the public good, for the protection of the public.

The real reason may be different. Call me a cynic, but there are few better ways for government leaders to assert their power than to shut down transportation systems. I mean, what did you think the Bridgegate scandal involving the use of Port Authority personnel to close entry lanes to the George Washington Bridge in September 2013 was all about?

But what about the effect on the public? Well, it seems pretty clear. The main effect is to essentially scare the dickens out of the public, to raise the specter of being stranded in order to deter anyone from travelling in the hours before the peak of the storm (when only a few inches had fallen).  

However, the consequential effects are predictable and they are severe. Businesses were forced to close early on Monday, not because of the weather per se but because their workforce was rightfully concerned that they would lose the ability to get home. 

Call me a cynic, but one wonders if this isn't just the government shifting the burden of inconvenience on the public, in order to make its "job" easier and avoid having its inefficiencies in snow removal and road maintenance exposed. 

And as the vast majority of those inconvenienced or disrupted by these government actions happen to be business owners who are the last ones out shutting their stores or offices, or honest employees, then all the better. You see, the storm is useful in deterring -- no, punishing -- people from working, all the better. Never let a crisis go to waste. 

Now it is without doubt that a blizzard is a serious weather event and those stranded outdoors can have their lives imperiled in a worst-case scenario. But these government exercises in authority have a real and subtle message: They remove your choice in the matter, and allow government to dictate your freedom of movement. 

The trend in recent years to have governments just "shut down" all manner of transportation arteries seems to be more about flexing muscles in the name of protecting the public, than in actually doing good. We'll bet that more people will be stranded by the feckless efforts of public servants trying to look like do-gooders, than by reckless individuals out for a joyride in the middle of a blizzard.

And again, let's point to the Bridgegate scandal still being investigated by various federal and state authorities. If Bridgegate was an abuse of power in September 2013 -- as it apparently was, with its criminality still in much dispute -- then how exactly is preventing people from getting home not an abuse?

Some will object to the cynicism, but if the government does not trust the general public to exercise minimal due care and common sense with its own safety, why exactly is the general public obligated to accept as an article of faith that the government is acting in the true public interest?



Thursday, January 22, 2015

Sheldon Silver's Warning To The Free Market?:

Behind the dismaying arrest of New York State Assembly Speaker Sheldon Silver on a series of mail fraud, extortion "under color of official right" and honest services fraud criminal charges (here's the
federal indictment against Silver), there could be some subtle and worrisome themes best expressed in three questions:

First: Does the federal government have the right to approve business contracts? This leads to the question of whether the federal (or state) government be able to criminalize any contract of which it does not approve?

And second: Are prosecutors also regulators, that is, able to impose regulations outside the ambit of legislative authority (because prosecutors are part of the executive branch) through their creative use of criminal statutes?

And finally, third: Will business be subject to arbitrary, shifting and perhaps ill-informed standards of care, perhaps set and then measured for compliance by people not necessarily qualified to do either, and of which standards an alleged violation becomes a crime?

These concerns 

(Before I continue: This article explores some troubling nuances in the thought process behind the case, and in no respect is meant to excuse or defend any of the alleged conduct. I have no love lost for Mr. Silver, none at all, but nor do I bear him any animus. Full disclosure: I've beaten his political machine -- that's different from him and I impute nothing to him -- on some election law cases in the past, going up against someone from the big law firm Stroock, Stroock & Lavan. They even sought sanctions against me in a frivolous argument thankfully rejected out of hand.  But I am not sold on the big picture here, which carries the subtle message that the government will use its prosecutorial power to regulate economic activity and businesses with which it simply disapproves or dislikes of an activity, industry or a particular person. None of that should be meant as a defense of Mr. Silver, particularly in some of the other criminal charges that involve none of the issues I discuss below, and which charges are both much more formidable and bolstered apparently with cooperating witnesses.)

Somewhat buried in the Silver criminal complaint are nuggets that very much indicate (and United States Attorney Preet Bharara said as much in his press conference) that the Department of Justice was questioning what Silver did to earn his referral fees from two law firms.

Here's the problem. The evaluation of what he did, whether he was qualified, etc. is an inherently subjective-value driven evaluation.

Should the federal government be able to charge you with a crime because it claims -- for good cause, bad cause or no cause -- you are not qualified to handle certain work and therefore made money by splitting legal fees on work you were not qualified to do and thus were not entitled to receive?  And what standard of qualification is used? Even more importantly, who gets to exercise that standard, and what standards are going to be used to judge whether they are qualified?
We are moving in that direction. We are lurching dangerously in a direction where personal or political animus can be the unstated basis for the prosecution and financial, reputational and personal destruction of people who have merely had the misfortune to achieve, and then to draw the envy and thus the ire of those in power who are envious, ambitious or flatly malicious.
The factual foundation of one charge is a fee-sharing agreement among lawyers, that is, Silver and another law firm, regarding work that Silver is considered unsuited to have performed, and Silver's failure to disclose that source of income.  But lawyers are allowed to refer clients to others who may practice in different fields (or even the same field) and get referral fees.  New York's Disciplinary Rule 2-107(A) -- a rule which is not even a criminal statute -- provides that lawyers can split fees if "each lawyer assumes joint responsibility for the representation" and the client is informed in writing. That rule follows a nearly 50-year old New York appellate case that holds that
“It has long been understood that in disputes among attorneys over the enforcement of fee-sharing agreements the courts will not inquire into the precise worth of the services performed by the parties as long as each party actually contributed to the legal work and there is no claim that either ‘refused to contribute more substantially.’
Sterling v Miller, 2 A.D.2d 900, aff’d 3 N.Y.2d 778 [1956]). (Emphasis added.)
So do we have a criminal charge against Silver that is based, dangerously subjectively, on the premise that in a prosecutor's mind, Silver simply didn't do enough to deserve his fee? (There is an echo here of the federal prosecution of New Jersey State Senator Wayne Bryant for having a "low-show" and also low-paying part time job, by then U.S. Attorney Chris Christie.)
And regarding the alleged crimes comprising several counts, one needs to ask what is "legitimate outside income" for a lawyer? And does this type of case put any part-time legislator at risk of having his or her outside income considered "bogus"? What is the standard? Is it arbitrary?  
Is that really a federal crime -- a crime at all?
In other words, do we have real crimes, or just ambitious second-guessing and smug judgments against a public elected official whom, regardless of whether you like him or his policies, is allowed to have part-time outside income. (Or perhaps, just not too much income.) I wonder if what we have here is a subjective standard that puts certain professionals -- lawyers are a suspect class -- and particularly public officials and elected officials most especially at risk on account of their high profile and thus their ability to "make the career" or "make the name" of an ambitious government prosecutor.
Arguably, the appropriate sanction for such acts, particularly if they are intentional, is not prison. It is disqualification from holding public office and/or public employment. That would be a stiffer, more meaningful and, to be frank, more painful punishment that would also be more effective in achieving deterrence. The goal of deterrence is historically a key element of the Anglo-American tradition of criminal law. (Others include the need to protect the public, and yes, the goal of retribution.
But envy, jealousy and clearing the field to create openings for the ambitious are not proper motives for the criminal law.
And as for elected officials, perhaps they are irretrievably under suspicion, and it is very hard to prove one's innocence in a world of the subjective standard. A solution would seem to lie in the eradication of the part-time legislator, so as to protect elected officials from this subjective standard.


Wednesday, January 14, 2015

Tea Party Played For Third-Rate Fools Under Election Law

As I predicted six months ago in this article -- which was met with derision among most of the "tea party" movement -- the establishment insiders running the Republican Party in New York used a "Stop Common Core" ballot line as a ruse to create a new third party to attract and ultimately neuter independent, reform-oriented sentiment on various issues.

The new third party will be called the "Reform Party." As that report indicates, the party will expand its "issues" beyond purported opposition to the Common Core school curriculum which has become a hot button around the nation and also raised issues about federalism and states' rights. 

It should now be apparent that the ballot line's title was merely a ploy to attract the necessary ground troops to gain 15,000 petition signatures and then the 50,000 votes (Stop Common Core got a shade over 51,000 for Rob Astorino) needed under New York election law for a ballot line to convert into a legally recognized political party for any election in the state for the next four years. "Stop Common Core" was never about protesting the federal curriculum mandate. It was about making sure protest movements were kept under watch, under control and chopped down at the first sign of strength.

But as I predicted, the petition drive and third statewide ballot line for November's gubernatorial election used grassroots and "tea party" elbow grease to capture independent-minded protest votes, first for the near-term objective of keeping them away from any bonafide independent (read: not controlled by the establishment), and later (and this is unfolding now) to keep them captive so no serious challenge to Republican establishment orthodoxy can ever be mounted. 

The pseudo-reform brilliantly capitalizes on the amateurishness and mediocrity -- the third-rateness -- of so many self-styled "reform" or citizens' groups which lack not only money and expertise but also the basic discipline to agree on and implement a winning strategy.

I am critical now of these self-styled citizens' groups, both because of their emotionally immature stubbornness to even consider what they thought last year was the unthinkable -- that political insiders would dare lie to them -- and their arrogant dismissal of my very public, overt and strident warnings of what was about to happen.

The end result is that now, voters in New York State will have the illusion of even more choice, when in reality they will have much less. In New York, the political parties' ability under state election law to cross-endorse one another's candidates has led to a practice where most elections are either not seriously contested or, when they are, they are two-candidate races in which each candidate is "endorsed" and runs on at least two or three ballot lines. 

Too often, third parties are and remain third parties, because their personnel and decisions are third-rate. I am not even sure the tea party groups' decisions with Stop Common Core even rise to the level of third rate. New York deserves better. 

Monday, January 12, 2015

Explaining Christie's Run

No suspense here. Chris Christie is running for the 2016 Republican presidential nomination.

The cherry on top of the cake, so to speak, may have been the impending hire of Texas power broker Ray Washburne as his campaign finance chair, hinted at strongly in this report

Some will stop and say, "Wait! Weren't federal prosecutors closing in on Christie?" based on last week's report that Christie had a sit-down with prosecutors in December. 

True.

And note the language in that ABC News report. Specifically, this:
He agreed to sit down with investigators voluntarily after they offered him a chance to provide his side of the story.
Assuming that the wording was borrowing the description, from an unnamed source, with both knowledge of the facts and knowledge of the legal background behind the events, the choice of words supports a few inferences.

First, "he agreed" means the meeting was sought by prosecutors. Not Christie.

That means prosecutors wanted something. It could be verification of information given by another (i.e. corroboration), it could be looking for something to dispel a theory, or it could be a direct inquiry at a high-profile potential "target," that is, Christie himself. But the feds were the ones starting this process, not the Governor.

Second, he met "voluntarily." View this through the prism: There's an easy way, and a hard way. This means the feds requested and he agreed to meet. There was, perhaps, no subpoena, but rest assured, failure to meet voluntarily is not so voluntary when refusal means you might be compelled to meet, either via subpoena or via arrest. 

Consider the guidelines from the United States Attorneys' Manual, which provides in relevant part:
A grand jury may properly subpoena a subject or a target of the investigation and question the target about his or her involvement in the crime under investigation. See United States v. Wong, 431 U.S. 174, 179 n. 8 (1977);United States v. Washington, 431 U.S. 181, 190 n. 6 (1977); United States v. Mandujano, 425 U.S. 564, 573-75 and 584 n. 9 (1976); United States v. Dionisio, 410 U.S. 1, 10 n. 8 (1973). However, in the context of particular cases such a subpoena may carry the appearance of unfairness. Because the potential for misunderstanding is great, before a known "target" (as defined in USAM 9-11.151) is subpoenaed to testify before the grand jury about his or her involvement in the crime under investigation, an effort should be made to secure the target's voluntary appearance. If a voluntary appearance cannot be obtained, the target should be subpoenaed only after the grand jury and the United States Attorney or the responsible Assistant Attorney General have approved the subpoena. In determining whether to approve a subpoena for a "target," careful attention will be paid to the following considerations:
  • The importance to the successful conduct of the grand jury's investigation of the testimony or other information sought;
  • Whether the substance of the testimony or other information sought could be provided by other witnesses; and
  • Whether the questions the prosecutor and the grand jurors intend to ask or the other information sought would be protected by a valid claim of privilege. (United States Attorneys' Manual Chapter 9-11.150) (Emphasis added)



Third, they "offered him a chance to provide his side of the story." This is really important. This means that the prosecutors have come up with a theory, a likely version of events plus a legal underpinning of a potential charge, and they believe this theory is likely at odds with what they believed Christie would say. (The basis for that expectation comes from the ample public comments Christie himself made, surprising comments based on his own prosecutorial experience and perhaps evidencing an unfathomable hubris.) 

But most of all, the last phrase means that prosecutors have decided on a course of action -- if not directly involving Christie, then involving others near him -- and that course of action will be taken, whether Christie cooperates in the effort or not.

So how do prosecutors view Christie? The United States Attorney, Paul Fishman, is not saying. (Nor should he. That's the professional course to take.) Here are how some key terms are defined in the United States Attorneys' Manual, Chapter 9-11.151.
A "target" is a person as to whom the prosecutor or the grand jury has substantial evidence linking him or her to the commission of a crime and who, in the judgment of the prosecutor, is a putative defendant. 
But here are some pointers.

When you are a witness or potential target, you are technically offered the chance to meet prosecutors. But this is not Hollywood. It's really more of a choice: easy way, or hard way. Consider the United States Attorneys' Manual, which provides:
It is not altogether uncommon for subjects or targets of the grand jury's investigation, particularly in white-collar cases, to request or demand the opportunity to tell the grand jury their side of the story. While the prosecutor has no legal obligation to permit such witnesses to testify, United States v. Leverage Funding System, Inc., 637 F.2d 645 (9th Cir. 1980), cert. denied, 452 U.S. 961 (1981); United States v. Gardner, 516 F.2d 334 (7th Cir. 1975), cert. denied, 423 U.S. 861 (1976)), a refusal to do so can create the appearance of unfairness. Accordingly, under normal circumstances, where no burden upon the grand jury or delay of its proceedings is involved, reasonable requests by a "subject" or "target" of an investigation, as defined above, to testify personally before the grand jury ordinarily should be given favorable consideration, provided that such witness explicitly waives his or her privilege against self-incrimination, on the record before the grand jury, and is represented by counsel or voluntarily and knowingly appears without counsel and consents to full examination under oath. 
(United States Attorneys' Manual Chapter 9-11.152)(Emphasis added.)
And furthermore:
When a target is not called to testify pursuant to USAM 9-11.150, and does not request to testify on his or her own motion (see USAM 9-11.152), the prosecutor, in appropriate cases, is encouraged to notify such person a reasonable time before seeking an indictment in order to afford him or her an opportunity to testify before the grand jury, subject to the conditions set forth in USAM 9-11.152. (Emphasis added.)(U.S. Attorneys' Manual Chapter 9-11.153).
Now consider the ABC News report referenced above, which, if accurate, reported that prosecutors were considering subpoenaing Christie if he did not respond to their request to meet.

And no matter how you are viewed -- fact witness, character witness, impeachment witness, or potential defendant (i.e., a target) -- any question and answer session puts you at risk of a false statements charge if your statements to federal prosecutors or investigators are later considered false. 

That's not necessarily fatal. Others have taken the risk and survived; see former Governor Jon Corzine as an example of someone who played with fire and lived to tell about it -- although he is theoretically still at risk of federal prosecution until the statute of limitations expires on him probably in early 2017.

But it would still have been smart for Christie to have insisted on a videotaped question and answer session, especially since the FBI adopted new regulations in May 2014 requiring the videotaping of most suspects. That's quite a change from the FBI regulations in place when Chris Christie was the United States Attorney himself and his office backed away from questioning someone because he insisted on a videotape. 

From the Manual's guidance, it certainly seems like Governor Christie's conduct may be at least that of a "subject," a term defined as a "person whose conduct is within the scope of the grand jury's investigation." (United States Attorney's Manual Chapter 9-11.151.) It is possible he is a "target," as defined earlier.

But indictments are not fatal to political hopes.

One thing is certain. There can be no assurance that the investigation would end without action, or with an "all clear" for Christie prior to the point where he would have to lay the serious foundation (i.e. fundraise) for a presidential campaign. Hence, he has little choice, strategically, but to go full steam ahead. However, the foregoing discussion should explain why a campaign is not indicative of his ultimate legal exposure in the myriad of federal investigations still believed to be ongoing.