More From Eric Dixon at http://www.NYBusinessCounsel.com

Twitter Rank #35 For Startup Advice May 2014 (#44 June 2014, #50 July 2014 -- now TRENDING UP at #41 for August 2014). Go to my professional site for solutions to your legal, business and strategic problems. Bitcoin Protocol Development -- Among the World's Legal Leaders in New Bitcoin Technology -- Top Strategic Judgment -- When You Need A Fixer -- Explore Information Protection and Cryptographic Security -- MUST-WIN: JUST DON'T LOSE -- SURVIVE!: Under Investigation? Being Sued? Handling Extreme Stress -- Corporate Issues -- Startup Issues -- Investor Issues -- Contracts To Meet Your Needs -- Opposition Research -- Trademark, Patent, Copyright -- Media and Reputation Issues -- Independent, top-notch legal, strategic and personal advice -- Extensive ghostwriting, speechwriting, book writing, issue research, press and crisis management services. Listed among the American Bar Association's Law Bloggers (Blawgers). Contact EDixon@NYBusinessCounsel.com 917-696-2442.

Monday, November 24, 2014

Men As Scum: How Hookup Can Lead To Lockup

The overcriminalization craze has hit a new high...or low.

In New Jersey, state assemblyman Troy Singleton has introduced a bill which will criminalize the use of deception or fraud to procure sex. (Author's note: The text of the bill is not yet posted on the New Jersey Legislature's website, but the bill number is A.3908 and eventually it will come out.)

So lying about being rich can get you thrown in jail. I guess lying about your ultimate intentions (e.g., promising to marry someone) isn't legally safe either.

This is a misguided bill with huge potential for abuse. Think about the danger for wrongful or reckless accusations, destroyed reputations and even wrongful prosecutions. You see, the problem is that this bill calls for deception to be defined by its purported victim.

Call this the regret-is-rape law. Or, the vengeance-is-mine law.

The law's practical implications are staggering. Should one partner later feel regret or shame, she (or he) could use the argument that she would never have "consented" to sex "had she known about" something or other. Theoretically, this requires the other partner to engage in absolute "full disclosure" about, well, just about anything, and that other partner would never -- let's be real, it's never -- have the security of knowing he is in the clear legally, that any sexual contact could not theoretically come back and result in a criminal charge.

This setup works fine, if you enjoy the meme of men as inherent predators and belong to the Blame Men First club. Or if you simply believe you're entitled to dish out as much venom as you wish and that men (caution: it could be anyone, but mostly it's going to be men) deserve whatever they get.

The problem is that in the real world, people respond to changing conditions and generally pattern their behavior to avoid risk.

When sex carries with it the uncertainty of future criminal prosecution if and when one's partner becomes disappointed...sexually, emotionally or financially, anything you can imagine...can you envision a new generation of men becoming very cautious and abstinent

Come to think of it, these might be the very class of men most likely to be good family men and the bedrock of their generation.

On the surface, the bill is intended to stop predators who procure sex through "deceptive" means.

You would have to be the village idiot to not understand that men are the primary targets of this bill. But what about women using makeup, hair dye, spackle, Bondo, butt implants, breast implants, Botox, rubber cement, plastic surgery, anti-anxiety drugs, etc.?  There are creative lawyers out there.

And what about women taking responsibility for checking into the pasts of their potential sexual partners, benefactors or fathers of their spawn? And, isn't a lot of courtship based on varying levels of openness and trust? Aren't the parties responsible for determining the basic character of the other party?

While people lying to get what they want is certainly unsavory and warrants strong disapproval, the trend towards making every crushed hope, every dashed dream, every broken heart, every unfulfilled fantasy...or even, every unfulfilled vice...the predicate for a crime and a domino in the progression of some hapless chap through the criminal justice system should raise concerns among mature observers.

By the way, don't think that abstaining is a foolproof way for men to safeguard themselves. Who's to say the man didn't have sex with his alleged victim? You see, this is a bill premised on the accused having to prove a negative, that is, that he (or she) didn't do it.

This isn't funny. This opens the door to all sorts of abuses, from the merely unconstitutional to the blatantly vicious, mendacious and ruinous.

Spurned lovers can now use this law (if it passes and is signed by New Jersey governor Chris Christie) to exact revenge or commit extortion. Men who disappoint women can become easy targets - even if they didn't have sex. You see, this bill is dangerously based on the notion that women are, well, telling the truth.

The bill turns the he-said-she-said allegations into a Russian roulette where a man's freedom (never mind his reputation) can easily be jeopardized by a woman's lust for vengeance, hypersensitivity or psychological dysfunction.

The crazy thing about this bill is that it will likely deter romantic overtures from the nicer guys, the more marriage-material type. The cads, the pigs, if you will, are unlikely to be deterred. (This is the lesson of overcriminalization; making more things a crime doesn't change behavior, but it sure fills up the jails.)

And who suffers the most?

Eventually, it will be single women who will get hit the hardest.

On the other hand, the bill may encourage more Puritan, more traditional courtship and perhaps a lot of delayed sex. That isn't necessarily bad. Men need to be more careful for many reasons. However, risk averse behavior by men is likely to mean that women, at much younger ages, will find it increasingly harder to get the attention they want.

This is the dystopian result when you start criminalizing the Y chromosome.

Wednesday, November 19, 2014

Red Light Cameras: When Safety Takes A Back Seat

The red light camera industry is based on a nice sounding and politically sellable concept, but is really based on exacting a hidden tax on hapless drivers and their passengers. In fact, safety arguably takes a back seat to the allure of the money honey pot for financially irresponsible towns and cities all across America.

If you know where to look and which government offices to get public documents from, and have the tenacity to dig, you may find some interesting phrasing buried in some obtuse documents.

Lawyerly language, not exactly written in plain English, the better with which to argue the plausibility of multiple meanings to the eye of the beholder.

"Traffic safety cameras" are "seen as promoting a public good." Note the language; you don't read that traffic safety cameras "have been shown to reduce accidents," for example, or that they actually are saving lives and injuries. It isn't what is written; sometimes what's important is what is missing.  Don't get confused with the statistics about how many people are killed or injured because drivers run stop signs or red lights. That is a different statistic and that activity is the claimed reason for red light cameras. But where is the evidence to show that these cameras reduce red light violations? (Heck, anecdotal evidence suggests that drivers will "stop short" and overcompensate for the camera, but stopping short ends up causing accidents -- perhaps even more accidents -- as well.)

"Significant contributors of revenue to municipal budgets." Mind you, this is used as a key selling point as to how the underlying red light camera business line will be profitable, because buyers will generate revenue.

Some town mayors and councils stand to be embarrassed if it is ever revealed that they pushed to install red light cameras to raise more money from their residents.

Wednesday, November 12, 2014

Moslem Attack On Christmas Backfires

Part of my practice -- legal and consulting -- is to give people strategic advice.

This often involves analyzing the "other side's" strategy to uncover its true objective. Part of a successful and effective negotiation (or attack) is knowing what that true objective is so you can cater to it.

Such is the case with the Moslem activists' push to have a Montgomery County, Maryland school district close for the Muslim holiday of Eid.

The activists (including the Committee of American-Islamist Relations, or CAIR) have been pushing to have the school districts close for Eid just like they close for Christmas or Yom Kippur.  On the surface, it is a form of equality as the stated objective.

Never mind that Christmas is largely a secular holiday, recognized by nonbelieving Christians and most people in most faiths; ditto for Easter, and even the Jewish high holy days (e.g., Passover).  And never mind that the vast majority of Americans literally have no idea -- none whatsoever -- about Eid. 

The school district's response to CAIR and others was to simply de-religionize the days off. The days off will remain on the school calendar, but their purpose will become an unstated truth as to which no one shall speak, but as to which everyone will understand the reason.

So of course the days off will be for Christmas, or Yom Kippur, or whatever. 

And guess what? The apparent, blatant "blankness" of the days in official documents will not diminish the symbolism of those holidays or the faiths they celebrate.

Rather, it will enhance them.

Now, let me address the fears of some political quarters.

Some are already charging that the school districts are surrendering to the intolerance and aggressive proselytizing of Moslem activists who seek an opportunity to preach, convert and otherwise expand the Moslem footprint, under the guise of equality. (Such proselytizing, incidentally, is not confined to Moslems, but that is a story for another article.) This concern holds that by "going secular" by removing the stated religious-holiday basis for certain days off, the school district undermines the predominant and socially-established (but not State-established) faiths of this land and thereby attacks those faiths.

I disagree entirely.

The school district is engaging in a successful passive-aggressive response. Its response is to give the Moslem activists their literal equality. Everything shall be equal; no religious holiday shall be the stated basis for a day off.

But of course, everyone not living under a rock or in a dirt cave will know the religious holidays are very much the basis for the days off. 

But now, here are the results which the activists may not have anticipated.

First, the population at large will now become increasingly aware of the true religious nature of the days off.

Second, the population at large will become fully aware of who is responsible for the stated secularization of those days off.

Third, the population at large now knows that there are elected and appointed leaders who will defend our First Amendment to our Constitution. In particular, they will honor the Establishment and Free Exercise Clauses, which holds:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;
Unwittingly, the activists have validated the tenet first expressed by the author Ayn Rand, who wrote that the best way to defeat a fraud is to comply with it literally. The fraud here is not any religion, but the use of a religion and the associated claim that equality is desired, as a pretext to allow (if not endorse) proselytizing, thus achieving a form of unequal treatment in the form of supremacy. That would, of course, raise questions about "equal protection" under the Constitution.

So if religious activists are worried that the Maryland school board is caving to religious aggression, a waving of the white flag, I suspect the subtle strategy is a defense, a defiance that may be a sound strategic and legal maneuver.

You see, the best part is that this decision forces the hand of Moslem activists -- or atheist activists, whether in the guise of civil liberties organizations if not courageously in their own name as atheists -- who would be forced to argue for official religious recognition and for supremacy, not equality, if they continue to oppose or challenge the school board decision.

This situation bears watching.



Is Wall Street Fraudster Now Calling The Ukraine?

Could a notorious former federal informant, whose history of using multiple names (i.e., change a letter here or there, drop the vowel at the end of the name, etc.) while suckering the Federal Government into using him as a potential key witness in a landmark federal securities fraud prosecution was revealed here in 2011, now be working at an unregulated Wall Street private lending firm and cold-calling prospects in Eastern European countries like the Ukraine, Romania and even Russia?





Saturday, November 8, 2014

Loretta Lynch: Not An Early 2008 Obama Supporter

President Obama's new nominee to be Attorney General, current United States Attorney Loretta Lynch (Eastern District of New York), may be a great lawyer, but she should not be assumed to be a bedrock-strong Obama supporter. Campaign contribution filings suggest she jumped on the Obama bandwagon only moments before it started rolling down the victory parade route. 

Lynch did give $9,200 to Obama in 2008, but all of it was after Obama's nomination was all but literally official. Her general election contributions were also on the eve of the election. 

She gave $2,300 to the "Obama for America" primary account on July 31, 2008 despite the fact that Obama had been the presumptive nominee and was announced by major media organizations to have clinched the nomination on June 3, 2008, with Hillary Clinton conceding and endorsing Obama a few days afterwards. The Democratic nomination became official on August 28, 2008. 

She also gave $2,300, not designated for either the primary or general election, to the Obama Victory Fund on July 22, 2008, and another $2,300 to Obama Victory Fund, also not designated, on November 2, 2008

Lynch gave $2,300 to the "Obama for America" general election account on November 3, 2008, for the general election the following day. The Obama campaign raised more than $657 million through one committee for its 2008 campaign covering both the primary and general election.  In the 2007-08 election cycle, the Federal Election Commission increased the contribution limits so that a contributor could give up to $2,300 to each candidate or candidate committee per election. 

Contrast her tepid after-the-fact support for Obama with her enthusiastic, jump-the-gun support of an inner-city Brooklyn progressive and son of a longtime Brooklyn congressman. Loretta Lynch has given only a few candidate contributions over the years, but Chris Owens, the son of Rep. Major Owens (D-Brooklyn) got contributions from her for his unsuccessful 1989 run for City Council ($250) and for his unsuccessful 2006 run for his father's Congressional seat, a loss which has to be somewhat embarrassing. Owens lost the Democratic primary in both years.  

When Owens ran for his father's House seat, Lynch gave the maximum of $2,100 to each of the primary and general election committees for congressional candidate Chris Owens in the 2005-06 election cycle. Here is the March 2005 contribution of $2,100 to the Owens primary account, and here is her optimistic January 2006 contribution of $2,100 to the Owens general election account, given eight months before the Democratic primary that September. In that primary, Owens ran fourth out of four candidates in a contested primary to replace his father, Rep. Major Owens. The primary and later the general election for the seat was won by Yvette Clarke. 

A mere nine days after the primary loss, the campaign refunded Lynch's general campaign committee contribution in full.

Chris Owens later became a radio talk show host on the Air America Network and was an early Brooklyn, NY backer of Barack Obama's then-nascent presidential campaign.
 
Lynch also was a way-early supporter of David Dinkins, giving him $300 in February 1989 a good seven months before Dinkins beat then-three-term incumbent Edward I. Koch in a five-way contested Democratic primary for Mayor of New York City. Lynch then gave Democratic nominee Dinkins another $250 in October 1989 weeks before Dinkins eked out a narrow victory over Republican candidate (and former United States Attorney for the Southern District of New York) Rudolph Giuliani. (Source: NYC Campaign Finance Board records.)

Unlike Dinkins and certainly unlike Owens, who may have been one of Obama's charter supporters, Lynch did not get on board with Obama until after he had vanquished Hillary Clinton.

Eric Dixon is an investigative and corporate attorney headquartered in New York City. 

Friday, November 7, 2014

How Electronic Voting Systems Are Failing

Electronic voting systems, once considered innovative and the hoped-for progress towards modern American elections that would avoid the dreaded "hanging chad," are proving to be a huge failure and costly boondoggle.

Reports from around the nation are showing significant failures with the electronic machines. 

The electronic systems retain a tragic and serious flaw which, in my opinion, renders them no better than the trusted old mechanical-lever machines of 50 years ago.

The problem is that the technology does not do away with the reliance on trust in people. A stand-alone electronic machine still needs a person to download records, and the general public is still asked to trust the people who are doing the counting of the votes.

Or the maintenance of the machines.

Or the paper record backup for these machines.
Or the auditors who compare the paper record with the electronic record. 

Or...you get the point.

The machine technology is merely considered more reliable than old machines but you still have the potential for a malfunction, or human error (like a transposed number, where 921 becomes 129). Or fraud. Or...you get the point.

Here's a solution which I am working on as part of a New York group, which is subject to a pending patent application. The solution is to have the blockchain system do the vote counting. Machines are used only to input the votes, but the blockchain records all votes in real time. In addition, as the blockchain relies on a form of mathematical proof (really a complex algorithmic assumption) to signify a form of decentralized consensus among all network users (or nodes, representing each election machine) as to the validity of all inputted data (which can be votes in this example), you have a system which is constantly self-validating without the interference from or contamination by people. Moreover, because all data in the blockchain is tied together mathematically, the last vote cast is tied in by an algorithmic relation to each preceding vote (the actual "vote" data is but a small part of the genetic makeup of the block of data and can be easily encrypted to preserve and ensure vote secrecy and anonymity).

The product is a system which does away with the need for post-election counting among thousands of polling places. 

And you know what? This system could be auditable, could go hand in hand with a paper record, but would be faster in tallying votes. 

There would be fewer election day workers counting votes and making mistakes.

The current machines would be reduced to merely taking inputs (votes) from voters and transmitting them over the Internet to the blockchain, instead of having to store a small number of votes until the end of the night.

Doesn't this sound like a better way to run a truly modern, post-industrial nation's elections?


Wednesday, November 5, 2014

New York's New Political Parties?

There could be one or even two recounts in New York State's gubernatorial election.

Not because there's any doubt that Andrew Cuomo won re-election by a 14 point margin.

UPDATED. No. It's because two of the ballot lines are thisclose over the threshold of 50,000 offiical votes required for a ballot line to achieve (or retain) its status as an official, legally recognized political party for the next four years. There certainly might have been a challenge if the parties were below the bar, and as of Wednesday morning the Andrew Cuomo alternative ballot line Women's Equality Party was 309 votes short of 50,000. The WEP is now 1,052 above, while Rob Astorino's Stop Common Core party had been about 4,000 short but is now 242 over the 50,000 threshold.

As for the Stop Common Core party, its qualification poses a very interesting question. Will the Republican establishment allow SCC to become a third party?

The reason for my suspicion is that the SCC petition committee on vacancies for the gubernatorial petition was dominated by Republican Party officials or consultants.  Under New York Election Law, the call as to whether the ballot line transforms into a third party is up to the gubernatorial candidate -- here, Rob Astorino -- but really this is a high-level insider game. 

The stakes are huge. Such a new party could cross-endorse candidates in any election anywhere in the state for the next four years, and it could get its own members who could easily qualify for the ballot.

For example, someone running for the House of Representatives in a regular party needs 1,250 valid signatures. (There are exceptions for low-enrollment districts where there are fewer than 25,000 enrolled members in a particular party in that district; then, the threshold is five percent of the enrolled number.) An independent candidate needs 3,500 signatures.

But for a new party with just a handful of members, you could get on the ballot with just five percent of the handful.  For what that's worth.


Monday, November 3, 2014

Too MANY People Vote: What's Really Wrong With Elections

Every year, every election, you hear "experts" talking about what a shame it is that two-thirds of the electorate stays home.

But think about it: The only people who give a damn about voter turnout -- aside from candidates and consultants -- are the intellectual elite and opinion leaders, the informed slice of the electorate which ALREADY votes because they CARE. 

Let's get something straight. If you really care about the elections, you're already voting tomorrow! Doesn't matter where you fall on the political spectrum. If you care, you're voting! 

If you really want electoral reform, you have to approach the issue from a totally different angle.

So when you hear this reheated pablum tomorrow about "not enough people vote, blah blah," think about who exactly isn't voting. It's the people who don't care. Democratic, Republican, makes no difference. So we're spending all this time trying to get more of the unconcerned, the indifferent, the inconsiderate, the uninformed, to vote. Is that rational? Is that a good use of YOUR time? 

Why There Are No First-Time Home Buyers

An insightful and well-documented analysis from Tyler Durden on the Zero Hedge blog deserves a re-posting here.  Durden points out that the new FHFA head, Mel Watt, is looking to slash lending standards to facilitate more buyers, although in an environment where housing in many markets is arguably overvalued (and that may be a mild assessment) it follows that subsequent price declines are likely if not probable and thus the people supposedly being targeted for help would then become a new wave of underwater owner victims.

A related issue is the concept of bailing out delinquent homeowners in order to stabilize residential real estate. Such proposals have it backwards.

Delinquent homeowners are not the backbone of any housing market.

The backbone, the support, the foundation -- now there's a word -- for the housing market is the homeowner who's making his or her payment each month. 

It's the responsible, solvent homeowners who deserve the help, if any goes around. Those are the homeowners who need to be kept in their homes, not the ones who have already shown through inability or unwillingness to keep up with mortgage payments.


Wednesday, October 29, 2014

Ebola Nurse Shows Do-Gooders All About "Me"

What can the Ebola hysteria teach us about how public policy gets made and executed?

If the actions of Kaci Hickox are any guide, it is that certain segments of the population have a permanent "hall pass" to live their lives free from any responsibilities, while burdening those unfortunate to be around them with an infinite set of dangers, burdens and obligations.

Kaci Hickox is the nurse who went to West Africa and was involuntarily quarantined upon her return to Newark Airport. She has insisted she will defy requests to self-isolate herself for the recommended 21-day Ebola incubation waiting period.  According to this report, she already has left her house to go bike riding. Not surprisingly, the State of Maine is threatening her with arrest if she does not quarantine herself, and the ridiculous specter of negotiations to persuade her to voluntarily comply did not work either. Stay tuned. In the meantime, her antics -- because this is starting to really seem either very contrived or signs of narcissistic personality disorder -- make the new Halloween horror costume du jour that of a female nurse riding a bike. 

Hickox is a nurse who went to Africa to do good, or so we are led to believe and expected to believe without questioning. For purposes only of this column's specific deconstruction of her actions, let's take her at her word.

So she intends to do good, and what is her reward? She is suspected to have come into proximity with a pretty deadly virus for which the reported death rate is 50% or more, and then gets a one-day quarantine in New Jersey upon her return (it was lifted after one day after federal authorities pressured the New Jersey Governor to lift it). Most recently, she got self-isolation orders from authorities in the State of Maine where she resides, and her public declarations of resistance have led to her being threatened with arrest. (Mind you, those threats of arrest occurred before she was revealed to have gone out for a bike ride in the Maine countryside.)

Now, the virulence of Ebola is severe and the penalty for negligence (or outright malevolence) by the infected or of carriers is risk of death.  (One wonders whether the virus is far less deadly among patients who are not otherwise weakened by nutritional or other immune system deficiencies.)  But I concentrate here on the mentality of the nurse and her many colleagues who share the mentality, because psychology drives activity and it also drives public policy.

To be brief: The purportedly charitable do-gooder impulses are not what they seem. Not with the nurse -- sorry, Kaci -- and not with elected and appointed public officials.

What it is really is individual fulfillment, everyone else be damned.  You can almost hear the whine: I'm gonna do whatever I want, and no one has the right to tell me to stop. 

By extension, the mentality screams that the individual has the right to avoid all responsibility. You see, under the selective relative morality of the narcissist, what is right is "all about me." 

Consequently, we have this paradox: A nurse who could potentially put you at risk of death is immune from criticism, but anyone who reminds the brat about her putting other innocent people at that risk is subject to having imputed to them the vilest of motives. 

You see, there is a difference between a right and an entitlement. A right is something that one may enjoy without burdening another. An entitlement necessarily burdens another. Here, we have not a right of this Kaci Hickox to roam freely, coughing and emitting virulent bodily liquids where she so chooses, but a claim to entitlement.

There is a dangerous flip side to this claim to entitlement. It is the corresponding, equal obligation upon others. And in this case, it is an obligation upon others to suffer, to sustain the risk to themselves (and to their families, anyone with whom they may come into contact) of death, to suffer the ultimate responsibility of endangered life, so that someone else -- someone without responsibilities -- may live without responsibility.

Historically, going back to medieval times and well before, societies lacking all but the most rudimentary understanding of disease still employed quarantines of infected and diseased persons. As merciless as that may have been to the afflicted, the policy was not intended to be mean but rather was a desperate attempt to survive by people who did not and could not know better.

But now, we see potentially infected people expressing indignation at being denied their right to go about their normal lives, even if they cause others to die. 

In other contexts this is called depraved indifference to human life. 

There is doing good. There is appearing to do good. And then there is the almost atavistic mentality that justifies the present actions under the theory that doing good for some justifies -- no, it requires -- that others suffer. In fact, there might be no limit to the suffering that some are expected to shoulder. Under such a mentality, putting the lives of others at risk is not merely acceptable collateral damage; it might be...dare we say it?...desired.

This mindset is poisonous, toxic and utterly deadly. It will lead to an unexpected but foreseeable reduction in legitimate charity and an increase in bonafide suffering.  Consider that the next time you hear someone smugly assert that "we must help" someone. 

Such a mentality cannot be considered compassion.  Rather, it is a manifestation of someone who has refused to grow up, accept that freedom has both responsibilities and consequences, and resists all efforts at basic accountability. In light of that, Kaci Hickox's activities as a nurse may be better seen for what it likely is, that is, just naked self-indulgence without any regard for anyone else. 

Saturday, October 25, 2014

Still waiting on Revised Bitcoin Regulation

The typical Friday afternoon news dump did not happen: the so-called "Bitlicense" that has outraged most of the Bitcoin / digital currency community was not released in its revised Beta form as some of us observers were anticipating. The original draft regulation was released July 17, 2014 and sent some industry participants scurrying for moving vans and passports. 

The original comment period for Bitlicense 1.0 was to expire in early September, but was then extended an additional 45 days until this past Tuesday. 

A good collection of reputable comment letters and other related commentary can be found on this website maintained by the international law firm Davis Polk. That is a law firm known for representing the largest of the large financial institutions, so industry companies should be wary of the conflicts -- both actual, perceived and disclosed depending on the ethics and financial desperation of the rainmaking partner -- inherent in using a law firm as a "trusted confidential adviser" for confidential business matters while it is servicing, and has been servicing, the much bigger competition for generations.


Saturday, October 18, 2014

Bitlicense 2.0: Stay Tuned

The initial comment period for the New York State "Bitlicense" regulation on "virtual currencies" ends Tuesday, October 21st.  A new draft revision, but not a final version, of the regulation should be forthcoming, probably sooner rather than later, and that would be followed by a new comment period for the public.

A new analysis of the revisions will be provided as circumstances warrant.

Friday, October 10, 2014

Jail To The Redskins?

This is about so much more than a football team's nickname.

Some New Jersey state lawmakers think there's nothing wrong with encouraging people to boycott the products of a business which they disfavor because of its name. Especially when the business owner is unsympathetic because he is a billionaire. But it's a brilliant political and strategic move to pick on a particularly unsympathetic if not contemptuous target.

(Further implied: The cost of destroying the millions of dollars of the brand value of the objectionable business name is the owner's problem, and since he's a rich guy, he sorta deserves it.  After all, we live in an age of the Rage of the Mediocre. And note that there's not one peep about a Native American head, adorned with a feather headdress, adorning the crest of the Chicago Blackhawks hockey team.) 

Change around the group identities of the players, and you have the type of government-induced discrimination that gave rise to the Civil Rights Act of 1964 and legal remedies for civil rights violations arising from "official state actions" under Title 42, Section 1983 of the United States Code.  Remember what groups were the particularly unsympathetic, and in some corners, contemptuous and reviled targets 60 years ago.

Politics doesn't even logically enter into this.  The number of acknowledged Native Americans residing in the districts may be less than one percent of the population (US Census 2010 estimates New Jersey's Native Americans and Alaska Natives to be 0.6% of the population.) So this cannot, not logically at least, be a move to pander for additional votes -- not unless someone is really microtargeting the electorate.  

This is simply not the province of the government.

But what if this is not about the stated agenda?

What if this is about a movement to condition the people to accept a grossly activist government that will use its full force to decide which private enterprises, industries and media outlets will survive, and which will be intimidated into silence or extinction?


Thursday, October 9, 2014

Is The Rage Of The Mediocre Threatening Our Economy?

If you have achieved, or at least worked very hard and tried to improve your situation, you should never be made to feel like you owe anyone else an apology.

Or pay protection money to avoid a guilt trip, or hostility.

But some commentators in New Jersey think that high-achievers -- they target Ivy Leaguers in this article, but the principle and target class is broader -- should get, deserve and accept a "drubbing" and furthermore, should understand that the losers want to see them fail.

Read my solution in a sharp commentary here. My article, out of the Financial Policy Council think tank in New York, links to the New Jersey Advance Media (parent company of the Star-Ledger) opinion column.

These unbridled, unrestrained and unapologetic sentiments presage the creation and encouragement of a mental underclass, not of lower-IQ people, but of scornful, spiteful, miserable people who will gladly destroy anyone and anything around them. This is an incipient, nihilistic, atavistic class which (in my careful observation) crosses all socioeconomic and political boundaries. In the legal system, it bears watching, because such class members serving on juries could imperil your clients simply on the basis of achievement envy.




Wednesday, October 8, 2014

Citizenship Fraud: Can Transgender Birth Certificate Changes Get Immigrants The Vote?

There is a seemingly-benign "transgender rights" bill, introduced in the New York City City Council yesterday, that would allow persons to change their gender status on birth certificates -- without actually changing their biological gender.

This bill threatens to turn official government documents into the domain of fantasy. That is, an official, government-issued document can now represent as fact, something which is not objective fact.

Get that?

This is not an issue of sensitivity or political correctness. It is an issue of flat-out document fraud -- as I explained in my December 2013 article about a similar New Jersey state bill passed by the legislature, and later vetoed by Governor Chris Christie in January 2014. (The bill was reintroduced this year.)

However, I question whether there is a deeper agenda that has nothing to do with transgender rights.

When an official government document can represent something which is neither objectively, demonstrably true in the present nor definitely not true in the past (that is, when the person was born!) but which is merely desired in the present (the gender change), what assurance can we have about any other government document?

I wonder if this is really part of a ploy to weaken the factual underpinnings of the citizenship requirement for the right to vote, and thus to ease the integration of millions of undocumented persons who entered through the nation's borders "without inspection" (that is, people formerly known as "illegal" immigrants but basically no longer illegal since border crossings have essentially been decriminalized) into the political, economic and social fabrics of the United States.

But the New York bill is worse, that is, more susceptible to encouraging fraud by weakening the concept of the birth certificate actually reflecting objective facts about the person. This New York bill would allow a person to change the birth certificate, without actually having changed gender.  This means that a man, being born a boy and with unmistakable male organs, can successfully change his birth certificate years later to reflect his current desire to "be" a woman, to have the certificate refer to him as "female," yet the person (I'm afraid to use a gender-specific pronoun anymore) would still be biologically male.  This is changing a representation, an official certification of a prior objective condition, from his factual state to its now-desired fantasy state.

(Before you ask, my solution is to allow gender changes to be reflected on current government records and documents. That is, by the way, the current policy in New York City, where medical evidence of the gender change has long been required.)

This is literally no different from changing a birth certificate to reflect a person's desired birthplace -- from a foreign country to, say, someplace in the United States. 

How do we have a judicial system based on facts, on evidence, when official government documents can now be changed to reflect one person's desires?

The ramifications of this legislation go far beyond issues of gender identity. 

Tuesday, October 7, 2014

Sayreville High School Cancels Football, Bullies The Good In Easy Way Out

Gutlessness comes in many forms. In its most pernicious form, it is disguised as compassion or equality or something else sounding benign in order to cover up its true intent or effect.

BREAKING NEWS FRIDAY NIGHT - Seven Sayreville HS football players arrested in connection with hazing assaults. (This underscores my point: Why couldn't actual accountability, targeted at those suspected of being primarily and perhaps criminally responsible, have been chosen instead of the broad brush of punishing the majority of innocent kids?)

This is my view, admittedly cynical, on the suspiciously-hasty decision by Sayreville (N.J.) High School administrators to cancel the football seasons of each of its football squads in response to allegations and preliminary findings of bullying. (Update: The first allegations were and are serious enough. Perhaps much more serious than indicated by the initial reports. Here is breaking news from Wednesday, and some expert analysis out Friday if you have a strong stomach, and a recap if you can stand it.)

Before you continue, understand that in no way am I condoning or minimizing the hazards of bullying (or anything worse and far beyond "bullying," which is what Wednesday's reports are starting to suggest, and which further reports out Friday really emphasize the potential criminal nature of some forcible assaults which go beyond "bullying" or even "hazing"). Read this column carefully. My criticisms of the school administrators should never be taken as an endorsement of the behavior they claim to be attacking. I do question the stated motives that are being voiced and wonder whether the haste in cancelling the football season might have been done to hasten an end to any investigation.

In short, I am asking: What are you doing with that shovel? Are you digging for the truth? Or trying to bury something?

As you'll see in this article, the primary stated objective is to "take a stand against bullying."

But has anyone thought about the initial -- real -- victims?

Has anyone thought about this: The kids, those who were bullied (and hopefully not worse), may be blamed or scapegoated for the season's cancellation.  The blame-the-victim syndrome occurs in many contexts in life; why not here?

Now, as an experienced attorney and an investigative attorney at that, I am naturally inquisitive and play my investigative cards close to the vest. Even when I publicly speculate on something, I hold something back. Anyone who is certain they know what I am thinking, especially when I comment publicly in the news media, is only very certainly an ignorant person. (You have questions? Come to the source -- me -- and come only to the source if you want to know what I am thinking. No one else knows or is authorized to say.) What I can reveal about my suspicions is this:

This decision, these findings, all of this is coming quickly. Too quickly. Makes me think either there's something to hide, or the real agenda is being hidden.

A real investigation is thorough and cautious, and puts getting the result right over expediency or how it looks to the public. (See my primer on outside investigations, including a link to my further criticisms of the "Bridgegate" internal investigation by the Gibson Dunn firm, by clicking here.) 

As stated above, this seems just too quick for comfort. Why cancel the season and ruin the sporting experience of high schoolers -- especially when some of them might lose out on college scholarships and otherwise miss out on what could be a once-in-a-lifetime experience?

I would hate to think that these adolescents (I'm talking about the good ones, again) are being sacrificed on an altar of expediency, if it is more important for administrators to show they are, ostensibly, doing the right thing, than it is to actually do the right thing which is to protect the good kids through a legitimate investigation which prioritizes getting it right and holding the truly culpable accountable.

The unintended message (at least I hope it is unintended) to the good kids, likely the vast majority of student-athletes very much adversely affected by this, is that everyone is held responsible for the actions of a few.  This is injustice, pure and simple, and far from affirming some grandiose principle it undermines respect for authority by teaching the good kids they will be treated as responsible as the bad kids.

The unmistakable result is that holding someone accountable, even if it is the innocent, is a necessary price to pay. The reality is that adults either too incompetent or too lazy -- yet having no problem cashing their public-employee checks paid by taxpayers of the same town of Sayreville, NJ -- to use elbow grease to try to do the dirty work of figuring out who is really guilty, cannot be bothered to get it right.

The result is to take the easy way out. Instead of working hard, it's easier to just cancel the season.

It's as if someone were in a hurry to do that, to cancel the season, in order to "call off the dogs," to get the investigation stopped by being able to claim that a remedial action was taken, that the guilty have been punished, so there's "nothing to see here, just move along."

Yes, I am wondering whether something is being hidden here, and cancelling the season might be a way to cover it up.

But regardless of what theory ultimately proves correct, the cancellation of the football season is no way to reward good behavior. In fact, it is the most efficient way to induce more bad behavior. 

Punishing the good kids for the actions of a few, because the adults in charge cannot or will not have the patience and discipline to do a proper investigation, sends a very bad message indeed.

The good kids get bullied twice. First by their teammates. Secondly, by the school administrators charged with protecting their interests but who are showing that the kids come last.

Saturday, October 4, 2014

Hispanic Terrorism: When New York Was Ground Zero For The FALN

"Republicans have made a horrible mistake in acting like they don’t welcome immigrants...Name me the Hispanic terrorist who has done damage to this country? I’ll wait for the long pause.”

 -- U.S. Senate candidate Jeff Bell (R-NJ)

There have been Hispanic terrorists in this country's history. They have killed people. They have targeted landmarks, and successfully (and tragically).
These terrorists targeted our leaders, including supposed immigration reform godfather, former President Ronald Reagan.
These Hispanic terrorists were considered a danger on par with Mideast terrorism three decades ago.
But this recent history is being ignored in one of the endless attempts to rationalize illegal immigration and demonstrate "compassion." Look closer, my friends; use your noggin and dig deeper to see what is motivating these attempts.
I suggest you will see that these efforts are really about trying to get the approval and recognition of others that you are sufficiently compassionate. In the process of trying too hard, of course, one reveals ignorance of the history of terrorism in this country, and sometimes even insincerity.
There have been plenty of Hispanic terrorists in this nation's history, and recent history, for that matter. But Bell's claim -- incorrect factually -- would also logically fail even if true, as the absence of evidence is not evidence of, well, anything other than the fact of the absence because one cannot prove a negative.
Here is the shocker to readers: Perhaps the most dangerous domestic terrorist group in the United States in the late 1970s was the Puerto Rican terrorist organization FALN.
This group bombed major landmarks like New York's Rockefeller Center in 1974, and the historic Fraunces Tavern restaurant right off Wall Street in 1975 (killing four).
I suggest you read this Human Events article from 1981 to learn quite a bit about our history of domestic terrorism. As the article points out, Puerto Ricans (being statutory citizens since 1917 by birth) have freedom of movement and need not cross a border, plus they can and do blend in seamlessly, more so than people from other countries of origin. 
Puerto Rican terrorism may have abated entirely in the last 30 years, but the lessons for immigration enforcement (without which any policy is meaningless) remain.

Tuesday, September 30, 2014

Blame The Gatekeeper, Shoot the Messenger: Is SEC Wrong?

Recent developments out of the Securities and Exchange Commission indicate that agency is continuing its years-long trend of making selected corporate officers the intended scapegoats for management malfeasance, wrongdoing or just plain stock price underperformance.

In so doing, the SEC persists in its efforts to hold someone accountable. As in someone, anyone, anyone will do. The problem is that the SEC may not be holding the right people accountable. The bigger worry is that the SEC may not even care if it accuses or punishes the wrong people, if the goal is just to meet the low bar of holding someone accountable when it matters not whether you get the right person.

Years ago I spotted the apparent inequity in SEC enforcement policies which sought to hold two classes of corporate officers -- in-house counsel and auditors/accountants -- particularly liable for the misdeeds of others while simultaneously disqualifying these same "suspect classes" or "disfavored professions" from eligibility for the SEC's then-new whistleblower awards for detecting and reporting corporate misbehavior.

The smugly condescending (if not contemptuous) Commission attitude was that such professionals needed to "do their jobs."  Underlying that sentiment is the incorrect belief that lawyers and accountants are best positioned to uncover fraud.

Here is what is correct: Lawyers and accountants are best trained or most experienced to detect wrongdoing. But wait for the critical assumption: The assumption is that access to the needed information is equal.

This is where regulators, prosecutors and judges get it flat wrong. Lawyers and accountants are not privy to wrongdoing, not because they are "in on the secret." It's because they are both most able to detect wrongdoing and personally inclined to report it. And guess what? It's because of those factors that wrongdoers conceal their misdeeds from precisely these two categories of workers! Brilliant!

This approach is wrong on many levels and will prove to be counterproductive. The biggest problem is the encouragement of a highly risk-averse approach by lawyers and accountants who will rightfully fear how their work is judged in a de facto strict liability environment where they can fear being held liable, not only for the wrongdoing of others, but wrongdoing for which their liability will arise from their inability to detect precisely the misconduct which others conceal from them. This is a thankless and perhaps impossible job, and is also likely to be unrewarded and unrecognized. 

Another implicit message, surely not lost on lawyers and accountants, is that their non-professional colleagues have a green light to snoop around, free from the burdens of the actual responsibilities of detection, and blow the whistle. Perhaps it is even intended that other corporate workers will get to pursue the potential whistleblower rewards, because they are not doing their own jobs.

From the outside, it is crucial to see that regulators -- often overworked and inexperienced -- may be trying to show that they are "doing their own jobs" by being able to demonstrate that they are implementing and enforcing a system to hold people accountable.

It is also crucial for observers, lawyers and investors to see that the appearance of doing one's job is never the same as actual performance, nor it is the same as effectiveness in stopping fraud.

Maybe if the government really cared about stopping the next Enron or Madoff before investors lost their life savings, they would care about positively incentivizing lawyers and accountants instead of demonizing them solely on the basis of their professional achievement.



Thursday, September 25, 2014

Why Republicans Lose Latinos


There is more to getting the Latino vote than watching Sofia Vergara in an episode of "Modern Family." That's the lesson from a shockingly ignorant e-mail sent out by a Republican Senate candidate in an urbane blue state.

This latest Republican candidate to try to think like a Latino, and thereby successfully showing a profound ignorance of (and appalling condescension towards) all things "Latino," is the party's sacrificial lamb candidate for United States Senate in New Jersey, Jeff Bell. You may not have heard of Bell, but you've heard of his opponent, the formerly-all-over-the-Twitterverse, former Newark mayor Cory Booker.

The common Republican inside-the-Beltway establishment wisdom is that Republicans need to be sensitive on certain "Latino" issues, or else they will never get enough Latino votes to ever win nationally. Ever.

Democrats hear or read this, and start laughing, chortling, and falling off their chairs. 

Yesterday, Bell sent around a fundraising appeal centering on how Republicans need to stop being "unwelcoming" to Latinos in order to gain their votes. It is a hilarious piece that illustrates how an old white man who has spent too much time in the Beltway and probably absolutely no time with any conservative Latinos thinks he will appeal to Latinos who are legitimate voters. 

Democrats find this funny, because it gives them a living, breathing caricature of their ideal political foil: an old, rich, out-of-touch white guy as to whom they can imply the pejorative adjectives "racist" and "elitist" and "country club." 

Not so hilarious -- except for Democrats already nursing bruises and cramps from laughing too hard -- is Bell's attack on Republican President Ronald Reagan's 1986 immigration reform bill.  For many conservatives nationally, attacking Reagan is tantamount to heresy. For New Jersey Republicans, attacking Reagan, attacking your own party (e.g., the state party has not adopted the Republican Party's national platform) and having your state party leader (aka The Next President of the United States) holding hands with the House Majority Leader are all required actions to demonstrate the requisite appeal...to Democratic voters.

But there's more. The ignorance is profound and not limited to Bell. As a Latino professional conservative myself, one with significant civil liberties and libertarian tendencies (that's the lawyer in me), I deconstruct the e-mail Bell's campaign sent out below.  The e-mail's verbiage is indented, with my commentary following.

Ronald Reagan once said, "Latinos are Republicans, they just don't know it yet." 

This ignores the huge cultural differences between peoples with different nations of origin, and by extension makes the unjustified assumption that Latin American colonization was the same as North American colonization. Mexicans are not the same as Cubans. Costa Ricans are not the same as, well, Puerto Ricans (who have absolutely no dog in the immigration issue yet are treated as if they should).  For most "Latinos" there is no pan-Latino identity whatsoever. That is a myth held by dumb gringos and gringas who succeed at showing off their ignorance every time they try to show off how smart they are.  

At most, there is a shared ancestral tongue stemming from the common nation, Spain, which colonized most of Latin America (the exceptions being the Portuguese whose influence in Brazil remains to this day, Haiti, a few Caribbean islands like Aruba, Belize, Suriname and Guyana) and a common predominant religious denomination in the Roman Catholic Church. But this ignores the formidable indigenous populations of Latin America which -- unlike the American Indian -- readily absorbed the colonials. Latin American colonization was not like that of the Thirteen Colonies. While Spanish architecture, language and civil and legal systems were established throughout Latin America, the population's large native component meant that some indigenous customs continued and became integrated into what developed into national cultures. Those cultures, however, should not be assumed to have been dominated by the Western (i.e., Western European / North American) cultural values, largely parallel with the Judeo-Christian religious culture which underpinned Western European societies of the colonial and industrial eras.  

In fact, in much of academia and increasingly among Latino activists, the Spanish/European/Western influences on culture, economics and values are rejected in an attempt to downplay -- if not erase altogether -- the influence of the European imperialist conquistadors. I theorize this rejection is demonstrated in nothing less than the evolving replacement of the adjective "Hispanic" originating from the name of the predominant nation of origin, Spain, with its European-rejecting replacement, "Latino." 

Although Western culture may dominate the establishment of the Latin American colonies and young nations of the 19th Century, it is a stretch to say this dominance extended to the general population still influenced by native tribal culture.  Hence, using the largely Catholic populations of Latin America as evidence suggesting that most Latin American immigrants have "traditional values" is only true if you recognize the true traditional values, which are not the same values we think of north of the Mexican border.

The Roman Catholic Church and other Christian denominations predominate in Latin America, and within those faiths a socialist theology has a heavy influence. The result is two-fold: the great majority of uneducated, unskilled migrants have become acclimated to a moral rationale for their dependence and sense of entitlement, while the relatively wealthy minority receives an often-explicit message that they must atone for their achievement. In addition, while obedience is the order of the day in many Latin American cultures and can be confused for the value of piety often sought by the more religious, in nearly all Latin American societies the governments have been viewed as autocratic, oligarchic, somewhat despotic and often corrupt. One consequence is that government authority can be seen as deriving from fear rather than from respect of the mutual consent of the governed. From this consequence it often follows that declining repression results not in the flourishing of liberty and individual rights, but in an emboldened disrespect for authority of all kinds. Newcomers bringing such attitudes to this country can hardly be expected to see the value in being good citizens instead of opportunistic scavengers.

The accepted wisdom that Latinos are more inclined to be "conservatives" and have "traditional values" is based on the fallacy that the exception proves the rule.  There are exceptions who possess traits and values demonstrated by the successful within each Latino national culture (such as it is), but within each such culture, the successful are distinct minorities! Those traits, those values, they are held by only a small portion of that subgroup. But in politics, it is not about the exceptions. Politics and warfare are the ultimate numbers games. Numbers win. And among the larger population the predominant values and practices are those of dependence, irresponsibility and entitlement-seeking. This is why many mainland-born Puerto Ricans, with all the advantages of United States birthright citizenship since World War I, remain mired in poverty and often lag newcomers on educational metrics, three generations after the 1950's "Operation Bootstrap" encouraged thousands of Puerto Rican islanders to migrate to the mainland.
More Jeff Bell: "Maybe that's politically incorrect to repeat in 2014. But I do agree with the premise behind [Reagan's] assertion: if the Republican Party makes the case to them, Hispanics will vote GOP." 
Here's the problem. Many Latin American countries are run by heavy welfare state, socialist governments which deliberately induce dependence to foster control.  There is no reason, none whatsoever, for naturalized Latin Americans accustomed to socialist government programs in their countries of origin to come here and seek to work for what they used to get for free over there.  Those countries produce migrants who overwhelmingly seek out government assistance, are uneducated and unskilled. There are exceptions in every migrant group, but remember: The exceptions never prove the rule. 
Bell: "But they do have a problem now. Our party has been unwelcoming. Republican members in Congress have refused to consider a path to legalization for those who came here illegally over the years or an expanded guest worker program that is open to low-skilled workers, not just Ph.D.'s. President Reagan tried to solve this problem in 1986, but the law he signed that year left out access for immigrants who want to come here and work temporarily without becoming citizens. It's led to the crisis we have today of millions of people who came from Mexico and elsewhere and simply stayed because neither the law -- which actually makes it a misdemeanor -- nor our border security encourage people to come here the right way."
The last sentence alone, read literally, declares that it is our border security which is the problem, not the preponderance nor encouragement of illegal immigration itself.  It logically follows that more border security equals more of a problem, so less border security is desired. Bell may not say it, but I will: Most Americans will read and hear this and think of the one dreaded word: Amnesty.

And most potential Republican voters in New Jersey may stay home on election day for that one reason. After all, concern about one issue, by so-called "single issue" voters, may be as likely to motivate people to vote as it is likely to induce them to stay home.
Bell: "I like Rush Limbaugh and have been interviewed by him on other topics, but I have to say that I fundamentally disagree with his assertion that those who immigrate here from Mexico are registered Democrats in waiting. Hispanics in the U.S. have the highest rate of business creation among all ethnic groups -- and more than double the national rate." 

This statement shows how statistics, even if true, can be deceptive. Let us just assume that this statement is literally true. Even so, it does not prove that Latinos are a fertile, undeveloped Republican voting bloc. It means only that there is a small segment of Latinos, the segment that achieves, that is entrepreneurial, to which Republicans may have added appeal.  

Again, politics is a numbers game. A candidate incompetent to realize that is, very simply, an incompetent candidate.

Entrepreneurs, no matter the culture, are the distinct minority. But it is important to understand why that is the case. Latino entrepreneurs migrating to America are not only seeking opportunity; in most cases they are fleeing oppressive cultures in which their achievement justifies their target status. Latino entrepreneurs, no matter their background, know instinctively that their success, as modest as it may be, is not because of their culture. Rather, it is often in spite of their culture. These are cultures in which the "wealthy" need bodyguards and often must bribe their way to security. This entrepreneur micro-segment of the Latino population should be Republican, but having Republicans apologize for the rich sends a signal that Republicans will not defend them here either. So they come here, become citizens, and don't vote because there is no candidate who looks to protect their real interests.

Virtually all of Latin America lacks any tradition of private property being thought of as safe and likely to be passed down over the generations. These are countries where the wealthy send their wealth -- and often, their children -- out of the country! (Disagree? Name one stable, economically developed free-market democracy in all of Latin America. Name one country thought of as a "safe haven." Go ahead. Yeah, I couldn't either.) 

There is a misguided notion, voiced often by people too smart to be that dumb, that voters will vote for Republicans because they are better, on average, than their Democratic opponents. This theory ignores the third choice, that voters will choose to stay home. As each election brings a fresh wave of commentary decrying ever-declining voter turnout figures, it is obvious more and more "potential Republican voters" are choosing none of the above.

Entrepreneurs are the minority, and Bell expresses the fallacy that the exception proves the rule. Entrepreneurs and achievers are never the rule; they are the exception. Entrepreneurs also illustrate few traits of any non-entrepreneurs who just happen to share their ancestral heritage and language.  It is intellectually dishonest to suggest that the traits demonstrated by entrepreneurs can be used as evidence of the presence of those same traits in the larger population segment which, almost as if by definition, rejects those traits. 
Bell: "Moreover, they tend to share conservatives' beliefs that life begins at conception and marriage is composed of a husband and a wife."
So they may be pro-life? That impulse may be successfully outweighed by the economic appeal of our cradle-to-grave socialism. This sounds like a weak argument to deny or delude oneself into ignoring the truth. Besides, a single-issue pro-life voter may be equally discouraged by some of the other positions I've deconstructed above.
Bell: "They are as good a prospect at voting Republican as any immigrants to America from anywhere in the world."
Even if that statement were literally true, that simply means that they might have a higher probability of voting Republican than other immigrants who choose to become citizens.  But when most immigrant groups yield very few Republicans, this statement becomes worthless. 
Bell: "If elected, I'm headed to the U.S. Senate to fight for a comprehensive immigration reform plan that includes a generous, market-based guest worker program so we don't repeat the crisis that stems from 1986. I'll fight against the special interests like Big Labor to get this done. As we achieve success, I believe Hispanic voters will move toward the GOP. Immigration may rank for many of them relatively low in a poll of issue priorities, but our party's stance on it has served as a barrier for them to consider the rest of our agenda that would appeal to Hispanics." 

The last sentence strongly implies that Hispanics will not vote Republican unless the party adopts an open-borders, amnesty-for-all policy. 

But the real problem in any general election is that America's long-term jobless, of all backgrounds, hear a common message: You're giving our jobs to foreigners. 

How this is a recipe for winning, even for candidates in a Democratic primary, is a mystery. How a Republican can voice this and try to win in a general election is not even a mystery. 

It is a fantasy. 




Judging The Right To A Lawyer

This morning's New York Times has a well-cited article on an upcoming trial seeking to reform New York State's county-run public defender system for poor criminal defendants. (In a curious allocation of attention and other resources, the United States Justice Department has weighed in, filing a statement of interest in this state class action.)

The problems listed in the article and also cited by the Justice Department happen to be true.

Innocent people -- not just the ones found "not guilty" (the two concepts are not the same) -- are wrongfully convicted, prosecuted, arrested and investigated every day. 

The criminal legal system is dangerously unbalanced in favor of the government. Prosecutors' offices have more resources than all but the wealthy defendants, so hiring a good criminal defense lawyer is beyond the reach of many lower-income defendants while middle-class defendants will often be wiped out financially in order to protect their freedom. Public defenders' offices are usually much less funded by comparison while their individual lawyers' caseloads can be larger.

But how to solve this problem?  Is the proposed solution of increasing the number of public defenders, the lawyers tasked with defending the really poor in criminal cases, going to work?

The organized criminal defense bar (a guild of sorts for lawyers who specialize in criminal defense) can be expected to be a little hesitant about any enhanced public defender programs. That is because reducing barriers to legal defense, subsidizing legal costs or outright providing many more public defenders, is likely to reduce the perceived value of all lawyers to all clients, no matter what speciality.  The value of any service is best supported when the person receiving the service and realizing its value is the same person who is paying for it.  Break those causal relationships down and you weaken any sense of value. Worse, you may create a greater sense of entitlement -- not just to a competent lawyer but to a "great" lawyer, and then to a "great" outcome, meaning, "I'm entitled to go free." (Just wait.)

The same value principle applies in the supermarket; if this week's can of corn is discounted to one dollar, the shopper may perceive its true value at that price, and refuse to buy it at next week's "regular" two dollar price.  So providing more "free" lawyers for whom clients do not have to pay threatens the value, and hence the livelihoods, of the lawyers who are able (whether by better reputational success or better client-building methods) to command higher fees.

Some will react by saying that lawyers are too expensive, so anything that drives down their rates is a good thing.  Funny thing is that most people who say that have no problem paying $1,000 for one ticket to sit in the rain to watch Derek Jeter's last home game (which I predict will be played, even if it takes until early Friday morning).

But look at what has happened when doctors' fees were cut, as their reimbursement levels from insurance companies have been falling for years, in a trend starting well before Obamacare took effect. If you are in a rural county in most of America, ask around to see how far you must travel to see an OB-GYN or oncologist. Expect your answer to be expressed in a number...not of miles...but of hours.

The lesson should be obvious: Cut the fees, and eventually you'll get a much narrower choice of service providers. You may also get much more assembly line service from lawyers, who increasingly outsource any "routine" task. These are the same criticisms leveled at doctors. 

One also has to wonder how one will judge the quality of the service. Will public defenders soon be subject to rating? Will a poor defendant get the best representation from a public defender who is under pressure to drive up his score? Could we have public defenders push defendants into going to trial, because the rating system requires some trial wins, so a convicted defendant never hears about a plea offer, and then does a much longer sentence because he gets convicted at trial?

I ask you to consider the myriad of problems that can still metastasize. 

Overall, it seems more funds should be allocated to all sides of the criminal legal system.

Prosecutors' offices should be better funded in order to retain the best, and often the most concerned, prosecutors. Don't forget the investigators who make those offices run. They also need better pay.

In a world where "you get what you pay for" remains as true as human nature, nothing threatens justice like incompetent, inexperienced or simply unsuited prosecutors who can wield extensive leverage in the form of government resources to threaten people -- often the wrong people. 

Public defenders' offices need equal funding simply to avoid basic clerical or managerial errors often arising from overburdened lawyers or their staffs.

And don't forget the judges. The judge is the last line of reason in a system which assumes but does not always produce the right "factfinding" coming out of the adversarial process. 

A reallocation of resources by governments should be sufficient to accomplish these objectives without raising taxes. Just think of the money wasted on transporting the hundreds of thousands of illegal immigrants who have been allowed to enter the country without inspection.

Now there's a civil rights twist: While legitimate American citizens languish in jails for months or years waiting for a trial that keeps getting delayed because of an overburdened judge, an overburdened public defender and an overburdened prosecutor, the federal government is spending money on illegal immigrants. Now let's have that discussion about "equal protection."

The reality is that our government spends money on noncitizens and plenty on foreign non-humanitarian foreign aid.

The starker reality is that to those of us on the ground here in America, where we see how mistakes can result in the horrible loss of years of freedom, the message to America's poor is that they are second-class and must wait their turn.