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Wednesday, March 31, 2010

The Death of Responsibility

WARNING:  This post was modified several days after its original writing.   I will let you in on a secret; this is actually a joke post (dateline: April 1st).   Those of you who recognized this as a subtle joke, buried within a lot of honest analysis and criticism -- another hint: there is a subtle change in the name of an entity -- should be commended for distinguishing yourselves from the vast majority who apparently did not get the joke. --- E.D. on behalf of CP&P

The Center for Disease Control is considering declaring a spectrum of behaviors as a coherent social disorder. This behavioral spectrum includes, among other things, the passive acceptance of and submission to authority, an unwillingness or reluctance to challenge authority unless (and in extreme cases, even if) strong moral codes are compromised or grave bodily harm is imminent, and a gullibility or susceptibility to believing the truth as to what one is told or receives from outside media (e.g., books, television network news, the blogosphere, talk radio).  Sufferers usually discover they are afflicted by this behavioral disorder after being bamboozled by a shady public official or stockbroker.

At first glance, this spectrum of disorders seems more serious than the purported disorder of "sex addiction" which has gotten a lot of recent attention due to the dalliances of politicians like Mark Sanford, John Edwards and Eliot "Client 9" Spitzer.  Sex addiction seems to encompass a wide range of harmful, antisocial and often aberrant or deviant behaviors.  The scope would ordinarily be too broad to warrant classification as a single, cognizable "disease," except that its sufferers do have one consistent symptom -- they all suffer some form of unexplained blunt trauma -- and its discovery also follows a pattern of discovery with one common element, that being that discovery is never made by a medical professional or through the sufferer's "self-diagnosis" but is almost always reported by a loved one of the sufferer.

Count us as among the silly fools.   We always thought this latter class of behavior simply was the province of those who used to be called "cads" or "scoundrels."   We attributed such antisocial behavior to being irresponsible, inconsiderate and narcissistic.   Now we see that we are the bad ones for being too judgmental and harsh, for failing to recognize their illness.   And since this syndrome is a "pre-existing condition," expect health insurers to be forced to pay for its "treatment" since under the recent Obama-initiated health care reforms such pre-existing conditions must be covered by law.

Monday, March 29, 2010

Plagiarize Legal Work At Your Own Risk

UPDATE 7/5/2014: As it's now election law "court challenge" season, it is time for me to repeat my annual warning to ripoff artists who have previously used my work, from many years ago in some instances, to cease and desist from doing so or else face the full extent of the law.  In light of that warning, I reprise a good column from 2010. 

* * * * * 

Legal work being the product of skilled, highly educated professionals, it ought to be understood that to plagiarize, steal, "crib," expropriate or otherwise exploit, for commercial or personal benefit, such legal work is verboten.  It is so understood, at least by the civilized segments of the profession. 

A while back, two former New Jersey prosecutors (who you'd think either should know better, or must think they're above the law) moved into a new neighborhood and promptly sought the help of one of their new neighbors, a corporate lawyer, to handle some research for a pretty important motion.   The work was done and papers were prepared.   The ex-prosecutors wrote that the work was "great."  The work was used, and papers were submitted.   Everything seemed fine, until the lawyer whose work was used sought payment.   The two ex-prosecutors, one of whom used to run some minority bar association, then tried to claim there was no agreement, and threatened the lawyer whose work they used (yes, we kid you not).   The work was apparently good enough to use.   Apparently, in New Jersey, the example of Frank Abagnale rules the day -- as in the movie chronicling his infamous exploits, "Catch Me If You Can" (starring Leonardo DiCaprio).

The lawyer whose work was plagiarized (or stolen, depending on your perspective) eventually ended up filing a civil suit to seek payment.  (Update: The plaintiff lawyer won at trial and got a judgment against the ex-prosecutors.) Stealing another lawyer's work is a serious matter and should be considered professional misconduct.   Poor economic conditions, recession ethics (i.e., anything goes) and other rationalizations for bad behavior should not be accepted.      

Lesson:   Pity the fool who tries to steal a lawyer's work and pass it off as his own.


Saturday, March 27, 2010

Why New York City Has Less Corrupt Cops


A pretty good read on why New York City has relatively less police and official corruption is explained in this Sunday New York Times story.
The other major reason:  New York City has an active and highly competitive press corps which, although underpaid, still strives to undercover problems like corruption through some often excellent investigative reporting.   The Times, Daily News and Post are dependably concerned about these stories, as they are always good for a scoop.   Not to be left out of the equation:  The Village Voice, whose in-depth reports are often the best of any of these publications.
The relative lack of serious competition among suburban papers is a major reason why cultures of corruption seem to proliferate in the ring of suburbs around New York.

Eric Dixon is a New York lawyer who handles legal and strategic matters for businesses, individuals, nonprofits and political organizations.  Mr. Dixon comments frequently on legal, economic and political matters and may be reached at edixon@NYBusinessCounsel.com.


The Running Man, Dead at 94

A legend and fixture around the Central Park Reservoir for many years -- and definitely as long as I could remember -- Alberto Arroyo was a man of apparently few material possessions but a great fondness for the fantastic New York urban park known as Central Park.   Alberto used to stand on his head through his mid-80s, and seemed impervious to suntans (he would get a deep brown hue, and as he was certainly in his 80s at this time the thought of skin cancer probably didn't bother him.
 
The following obituary is running in the Saturday New York Times, and for some posterity shall be preserved here.
 
 


Thursday, March 25, 2010

Obama Threatens Sanctity of Contracts


The Obama Administration is proposing that banks grant forbearance to unemployed homeowners and undertake mortgage principal reductions as ways to combat the housing / foreclosure crisis.   See this story from Friday's Washington Post.
These proposals threaten to undermine the very sanctity of contracts which is the basic building block of our capitalist economy, which depends above all else upon the rule of law.   Note the comment from one activist about required principal forgiveness, which is the equivalent of giving away money -- which ultimately comes from your pocket and mine -- to delinquent homeowners.   The reduction of mortgage principal equals the creation of equity.  The math is undeniable.
Remember that banks have relied on mortgages -- contracts -- as borrowers' promises to pay.   If the federal government can unilaterally modify the terms of contracts in this instance, what other commercial relationship remains safe?   What guarantee does a bank now have that the government won't come in and pressure, or compel, a change in terms in the future.   Banks now have to deal with an element of political uncertainty with American contracts which they previously have experienced only in Third World countries.   The equivalent of the risk of nationalization introduces uncertainty to every commercial relationship, and should surely make banks much more reluctant to lend to anyone in the future.   How this is not a grave danger to the economy is a mystery.

 Eric Dixon is a New York lawyer who has been practicing law since graduating from Yale Law School in 1994. Mr. Dixon cautions that this article is not legal advice. Mr. Dixon has handled election law and other matters for over two dozen political clients, and also handles corporate investigations, due diligence and sensitive matters including crisis management.  Mr. Dixon is available for consultation or comment at edixon@NYBusinessCounsel.com and 917-696-2442.

Wednesday, March 24, 2010

Lawyers Needed for Health Care Compliance


The health care reform passed this past week will be a net benefit for the legal profession. 
 
Lawyers will be needed for compliance by businesses.   There will also be a need to structure businesses so as to avoid the most business-onerous provisions of ObamaCare.
As always, lawyers will be active on the plaintiff side, bringing actions for bad faith and breach of contract against carriers. 
 Eric Dixon is a New York lawyer who has been practicing law since graduating from Yale Law School in 1994. Mr. Dixon cautions that this article is not legal advice. Mr. Dixon has handled election law and other matters for over two dozen political clients, and also handles corporate investigations, due diligence and sensitive matters including crisis management.  Mr. Dixon is available for consultation or comment at edixon@NYBusinessCounsel.com and 917-696-2442. 

Housing Impeding Major Economic Recovery

This New York Times article is the latest report to indicate that the housing market is still in bad shape and will drag down or impede any significant economic recovery for the near future.  It only makes sense that would-be sellers were (and still will be) waiting out the "bad times" before listing their houses.   Also remember that credit is still much more difficult to come by; this impedes many buyers and prevents many homeowners from listing their homes because of their uncertainty over being able to close on their new house.
 
One other fact to remember:  "Improvement" on a year-over-year basis is relatively easy to achieve, when the "base year" performance is horrid as it was from 2Q08 to 2Q09. 
 

Tuesday, March 23, 2010

Competing Fears on Obama Health Reform

ObamaCare Light has been signed into law. The controversies and agitation, when distilled, break down into a conflict between two competing fears.

On one hand we have a fear of a government-type bureaucracy and our fear of its indifference to our care, or its incompetence. On the other, we have a fear of the greed factor (euphemistically called the profit motive) determining our care.

Pick your poison.

Sent from my Verizon Wireless BlackBerry

Sunday, March 21, 2010

Christie's Flaw: How To Get Real Budget Reform


New Jersey is largely up in arms (others celebrate) because of the substantial budget cuts proposed by new New Jersey Governor Chris Christie this past week.
I predict these reforms will largely FAIL.   Not because of the intent.  It's because of the one tragic flaw.  New Jersey's budget problems are largely caused by years of waste, greed, mismanagement, incompetence and sloth under the failed stewardship of men and women of both parties.  The people responsible for this generational, institutionalized waste remain in place to implement Christie's policies at the local and county level (and in some places, at the state level).  These people will assuredly keep their own benefits in place, and pass along the impact of any cuts to other people, real service providers and rank-and-file, younger and lower-paid workers.
Christie has done nothing to remove the people responsible for the mess. The budget cuts do nothing to change the source of the problem: The lack of commitment of the real "spenders," the real "deciders," to change their ways. Without that change, it will be business as usual in New Jersey, and Christie will fail to achieve either meaningful reform or real tax relief for homeowners and businesses. 
This failure will be a cautionary tale for states and localities across the country.  Waste is not unique to New Jersey.

Eric Dixon is a New York lawyer and strategic consultant who represents and advises businesses, individuals, nonprofits and political organizations on sensitive legal, policy and crisis management matters. 


Friday, March 19, 2010

Deferred Enrollment, Switching Party Affiliation and Reordering the Political Parties in New York


Something very strange is happening in New York, where the state Republican chairman, Nixon son-in-law Ed Cox, has just endorsed a Democratic Suffolk County Executive Steve Levy for governor.   Levy will be (or so he says) switching his party registration to Republican.
One little-known note:  Levy's party affiliation does not take effect until next year.   Under New York's Election Law, there is a practice known as "deferred enrollment" under which a registered voter who is already enrolled in an officially-recognized party can switch parties, but the switch is not effective until after the following October (four weeks before the general election).   This practice (upheld many years ago by the Supreme Court in its 1970 case Rosario v. Rockefeller) prevents Levy from voting in the Republican primary for himself, signing his own Republican petition (that is, if he doesn't get enough support at the party convention) or even carrying his own Republican petition.  In fact, Levy could vote in this year's Democratic party primary -- although there would be grounds for that party to disaffiliate him under the Election Law.   (For election lawyers like me, this is kinda fun!)
There will be blood...er, consequences, for the political parties.   Assuming the Conservative Party nominates Rick Lazio (who ought to be humiliated by the Republican establishment rejecting a former U.S. Senate candidate), Levy wins a Republican primary and Carl Paladino runs as an independent (perhaps forming a "Tea Party" slate which could then qualify as an official party if he gets 50,000 votes statewide), the right-of-center vote will be split three ways.   (I'm not even counting other "constitutionalist" or "libertarian" groups which might run someone.)  
Patronage -- including representation in boards of elections -- could be affected by how these candidates fare against each other.  Which party's candidate would get more votes?  One scenario would have the "real Republican" running as a Conservative beating out the Democrat-turned-Republican (in which case the Conservatives would become Row B), and Paladino could spearhead a new party.
Potential loser:  The Independence Party.   As it becomes clearer with each day that Andrew Cuomo is not merely the presumptive Democratic candidate for Governor, but the next Governor, any need he might feel to seek or accept the Independence Party's endorsement will diminish.   Cuomo will in all probability have the Working Families Party's endorsement.   The Indys will likely choose one of Levy, Lazio or Paladino, but the problem is that all of those candidates will concentrate on their "major" party, and there's no guarantee any of them would want their endorsement either.
Eric Dixon is a lawyer in New York City who handles litigation, investigative matters and political matters.   He can be reached at 917-696-2442.

Thursday, March 18, 2010

Wildcat Strike in Jersey?

In the wake of Governor Christie's significant program cuts in his proposed fiscal year 2011 budget released Tuesday, there are signs of unofficial labor actions in New Jersey this morning. Rush hour commuters are noticing. Coincidence? I think not.
Remember two weeks ago the proposed budget for NJ Transit was released and some officials warned of a possible 25 to 30 percent fare hike.
New Yorkers are more aware of these actions. In New Jersey, this will be culture shock.

 

Tuesday, March 16, 2010

Unintended Consequences of Christie's Jersey Buck-Passing


Earlier today, New Jersey Governor Chris Christie announced his proposed state budget for the upcoming fiscal year.  The get-tough, clean-the-barn attitude has already met with fierce rhetoric.   This portends some serious negotiating between a Democratic-controlled Legislature and the new Republican governor, as a new budget must be in place by July 1st.   Plenty of time.
The proposed budget features an approximate cut of state funding to schools of about $800 million, with a cap on cuts to individual districts not to exceed five percent of their total budget.  The plan seems to be to starve municipalities into fiscal austerity.   The problem is that they have an alternative; they can raise property taxes on their own residents and businesses.   Even worse, Christie has now given them plenty of political cover, including refusing to renew the Jon Corzine one-year income tax surcharge on income over $400,000.   Jersey's own Treasury Department estimates the surcharge (which expired December 31st) generated about $1 billion; thus, its renewal would cover all of the proposed school cuts.   This equates to, "we're cutting school aid by five percent so the rich can get a tax cut."  This creates a political "perfect storm" for potentially crushing tax hikes.   
Here's the explanation.  Municipalities have two sources of funds:  state aid, and their own tax base.   Cutting state aid still allows towns to jack up their property taxes on residents and businesses.   And there is appeal in doing this, if Christie's other proposal (among many proposals) to cap allowed annual property tax increases at 2.5 percent per year is added to the state constitution.  The appeal for some towns will be to raise property taxes as soon as possible.   And in the current environment, being able to blame Christie is like manna from heaven.
Christie still has the choice of making the difficult cuts directly, in and across state government,   His rhetoric about making cuts in school aid in order to "share the pain" sounds equitable, but behind the sophistry lies a degree of cowardice, of weakness and an unwillingness to really make the tough choices and engage in the toughest fight.   Cutting school aid just allows -- if not encourages -- towns to raise taxes and pass the blame to the Governor.  Christie could not be more mistaken in trying to induce school district spending cuts.   To do this, he needs to be able to change the people in each town who decide its budget.   It is one thing to reduce state aid; it is another to change who decides how the money (from whatever source) gets spent.   The latter is where the problem lies.  
Christie's budget does absolutely nothing to change who decides on a district-by-district level where money is spent, so if you accept the notion that "waste" was a problem before, it will remain a problem since the "deciders" remain in place.   The spendthrifts in government remain, untouched, under the Christie budget, and surely they will not be cutting salaries, benefits and other perks for themselves, their friends or families.  They will, however, cut real services; they will reduce the number of teachers, aides and support personnel wherever possible before cutting the "fat," simply because they will retain the power to do so and will have been allowed by Christie to retain that power.  
If you objected to the status quo in voting in November, Christie's reward to you is to give you more of the same.  Christie's budget will help entrench these very same deciders and give them plenty of potent political ammunition to curry favor with voters, from all corners of the state, with kids in public school.  If this is a strategy, someone ought to get fired real quick. 
Perhaps the Christie plan may be to stoke such popular outrage as to cause local activists to overthrow their local fiefdoms, thus promising the possibility of "reform."  But this assumes that activists, and thousands of parents, will blame their local officials for service cuts.   These officials are already blaming Christie for a nearly one billion-dollar cut to schools.   The "air war" on this issue has already been lost. 
If Christie's commitment is really to fiscal austerity, then it is fair to ask why he is not pushing for it across state government instead of trying to pass the buck -- and the burden -- to municipalities.  On purely strategic grounds -- never mind how this affects kids -- this is an absolute disaster.    
From this vantage point, Christie's going after the path of least resistance -- the schools -- seems like bad policy and bad strategy.  There may be plenty of lipstick on this pig, but at day's end we still have a pulled pork roll.   New Jersey residents are in for large, real tax hikes combined with even more real service cuts.  


Imagine a Hurricane in New York

The New York tri-state area just got blasted with a powerful nor'easter that should enlighten people as to the power and damage potential of tropical storms and hurricanes. Direct hits from tropical systems are rare along the Atlantic coast north of Cape Hatteras through Connecticut. These storms can cause major damage and severe inconvenience.

Last weekend's nor'easter produced between four and seven inches of rain, sustained winds of over 25-30 mph for over 24 hours, a good 36 hour period during which gusts were routinely tropical storm force (39+ mph) and sometimes hurricane force (74+ mph).

The length of the storm is a major factor in damage as the cumulative trauma on trees and small structures brought them to a breaking point.

This should be a lesson come summertime not to ignore tropical systems.

Friday, March 12, 2010

Rights, Obligations and A Return to Feudalism?

People want affordable health care, and some declare that it is a "right.".


Rights carry obligations, and some rights can be asserted but only with a corresponding obligation. This is the perfect example.


To claim a right to affordable health care, one must ask the questions: Who pays? And who provides the service?


Affordable health care is thus a "right" which depends entirely on someone -- meaning, someone else, to be honest -- paying for the rightsholder's care, and also on someone else willing to provide the care.


If one day every doctor and nurse were to retire, without replacements, there would be no health care at any price. Therefore, this "right" is dependent entirely on, and requires that others assume responsibilities. How can this be a right?


Affordable health care is desirable and something worthy to aspire to have. A civilized society such as ours should try to provide health care for all who need it (and let's not play games with the meaning of "need"). But health care cannot be a right because it compels and imposes obligations on others.


The advocates of health care as a right do not realize that their argument by necessity imposes obligations on others. (If they do realize this point, they are effectively arguing for a return to feudalism, in which they get to make others their serfs.) In our society, no one should have a "right" to impose obligations and burdens upon others. The Founding Fathers would not recognize such a concept.

 Eric Dixon is a New York lawyer who has been practicing law since graduating from Yale Law School in 1994. Mr. Dixon cautions that this article is not legal advice. Mr. Dixon has handled election law and other matters for over two dozen political clients, and also handles corporate investigations, due diligence and sensitive matters including crisis management.  Mr. Dixon is available for consultation or comment at edixon@NYBusinessCounsel.com and 917-696-2442.

Tuesday, March 9, 2010

Blame the Lawyers!

As of press time the jury in Hal Turner's federal criminal trial in Brooklyn is either still deliberating or at an impasse. Perhaps the judge will issue a directive to keep deliberating as its only been one day.


Turner is the avowed shock jock internet radio host who claims his racist, etc. rhetoric were designed to flush out true nuts and violent extremist elements. Turner is on trial for saying that three Chicago federal judges "deserve to be killed" because of some of their court rulings.


Now with the jury deliberating, we hear that Turner fired his lawyers today.


This may be just a ruse so Turner, if found guilty, can use the ineffective assistance of counsel defense on appeal. He did not need to fire his lawyers, but probably thought that an appeal would be stronger if he did. As for the merits, well, let's just say this seems like a stretch and, frankly, an insult to his lawyers (unless they choose to understand the strategic angle). However, if the firing is just a ruse, that could get all parties in trouble for deceiving the court. Not good.


It seems, from this corner, that Turner is just a very unpredictable individual. It makes the entire case that much more interesting. Stay tuned.

 Eric Dixon is a New York lawyer who has been practicing law since graduating from Yale Law School in 1994. Mr. Dixon cautions that this article is not legal advice. Mr. Dixon has handled election law and other matters for over two dozen political clients, and also handles corporate investigations, due diligence and sensitive matters including crisis management.  Mr. Dixon is available for consultation or comment at edixon@NYBusinessCounsel.com and 917-696-2442.

Sunday, March 7, 2010

Terminal Lack of Confidence Undermining Justice


The nation has been wrestling for years with questions regarding putative-terrorists/enemy combatants.   Do we try them as prisoners of war?  (I suggest that to even have this debate suggests strongly that they are now POWs; after all, soldiers or spies captured during declared wars on or near a battlefield did not prompt such questions.)  Where do we try them -- military court or civilian court?  And if a civilian court, where is the trial held? 
The inconsistency and now the reversals in policy on these questions are disturbing, embarassing and harmful to the nation's reputation as a country of laws first and foremost.
There seems to be an alarming lack of confidence among Justice Department decisionmakers that a civilian trial can indeed proceed.   If there is worry about the specter of a Khalid Sheikh Mohammed (hereinafter, "KSM"), who has confessed to crimes, actually being set free on a constitutional rights violation, for example, then how does one justify an indefinite detention of him (or others) before and without any trial, without raising fears that such precedent could be abused in the future to justify indefinite detentions of American citizens without a trial?  In short, if this man is so evidently guilty of heinous crimes, why does there seem to be this trepidation -- if not fear -- to proceed civilly?  Where are the "best and brightest" lining up to make a name for themselves in what could be a career-defining case?  (Counterposition:  Maybe this is supposed to be such a sure winner that there is no career upside, but plenty of room for career humiliation on the downside.) 
The longer these questions remain unanswered, the more it seems that there is a someone, at some level of our federal government, who is aware that certain facts would emerge to undermine KSM's confession.  
The central theme is emerging.   At various levels of the Justice Department and the Obama Administration (and to be fair, this was probably also the case during the Bush Administration), there appears to be someone with something to hide.   It just does not seem that the mere fear of a courtroom loss would prompt all of this maneuvering.   In short, the decisionmakers look as if they are afraid of anything and everything other than a preordained guilty verdict.
Perhaps the lack of confidence is in the abilities of the prosecutors.
Perhaps the lack of confidence is in the likelihood of the federal judges to rule for the government.
Perhaps the lack of confidence, above all, is in the evidence.   As incredible as it may seem, could KSM simply be a nut job?   Or, even worse, could he actually be innocent of any crime, or have been tortured enough to say anything? 
These would seem to be horrible questions to ponder, because of the premise that our federal government would be able to do such wrongs.   One distinguishing feature about American society is our generally widespread belief that our government and its agents are benevolent and law-abiding, and that they protect us instead of persecute us.   But the continuing delays and evident fear in proceeding make it seem as if there is a something out there which someone is trying very hard to keep hidden.  The longer we don't get the final answers, the more the suspicions and whispers will continue.
My belief:  A civilian trial should be held in the jurisdiction where the crime is determined to have been committed.   That means either New York City (Southern District of New York) or perhaps Boston, where the attackers boarded the planes.  A change of venue should be considered upon motion if there is a risk that the defendant cannot receive a fair trial; that is how our system works.   It is better to have the trial here, and take the "chance" of losing a verdict, than to try to cover up mistakes made in the past by violating time-honored procedural rules and Constitutional safeguards and weakening the legitimacy of our judicial system.    To argue otherwise, to suggest that people such as KSM absolutely must be found guilty by any means necessary, is to ignore and create the risk of tomorrow's witch-hunt, where innocents will be persecuted, tried and convicted.
Eric Dixon is an attorney in New York and New Jersey who writes on and researches various civil rights topics.  His next-door neighbor's son was killed in the September 11, 2001 attacks.    


Counsellor or Cheerleader?


Some prospective clients in both the legal and consulting worlds are really confused as to the purpose of a lawyer.   They ignore the lawyer's purpose, which is to give advice.   This is true, whether the lawyer is representing a client before a court or administrative panel, giving advice one-on-one, or negotiating or mediating a dispute.
There are people who become disappointed when they actually get advice, and do not appreciate the content of that advice.  This advice is usually some derivative of, "You're wrong" or "You should not have done that."   These people should learn the distinction between hiring a lawyer to counsel them, to give them real advice, and hiring what in essence is a cheerleader to pat them on the back and reaffirm just what a good thing they've done.
Eric Dixon is a practicing lawyer in New York and New Jersey and handles investigative matters, litigation, negotiations and strategic analysis.  He is available for questions or comments at 917-696-2442.


Tuesday, March 2, 2010

Anger at Unfair World Sparks Political Shift

It may be said that the world -- or our class consciousness -- has changed in the last three years since the Credit Crunch (following the Great Housing Bubble) morphed into what even the Associated Press officially calls The Great Recession.

Less recognized is the growing realization that the institutions we believed would ensure a basic sense of justice and fairness have failed and are failing still.

Segments of the electorate are angry in a way not seen in this country since the Sixties and more common in other countries.

Consider:

(1)  Americans are told to support its major financial institutions via TARP. People recognize their taxes today, and their kids' tomorrow, will go to pay the extravagant and sometimes totally undeserved bonuses of the same bankers whose risk-taking and bad judgments played a role in the current economic troubles.

(2)  Americans see health insurance premiums skyrocket over the past decade, along with rising co-payments, increasing exclusions of coverage and growing costs for "charity care" to cover the costs of the undocumented. When reform is proposed, Americans read about "death panels" (which would exist in the form of bureaucrats deciding on the efficiency of certain procedures) and mandatory insurance with the real potential for incarceration for noncompliance. But the mandatory provisions have an exclusion for...you guessed it...undocumented aliens.

(3)  Americans in the private sector have saved for their own retirement and invested in various funds. They don't have loss insurance and bear all the risk of loss. But before they pay one dime towards their own 401k, they are required to fund the defined benefit plans of public employees, who generally work less, work less efficiently, get paid significantly more than a comparable private-sector job, retire much earlier and, in many cases, show a disturbing sense of entitlement and propensity to engage in corruption, graft and other illicit behavior.  

(4)  Americans save for down payments and take conservative fixed rate mortgages, only to see new neighbors take outsize risks to buy bigger houses, home equity loans to buy bigger SUVs, and then claim victim status when they fall into foreclosure, leaving their responsible neighbors to pay their burden in the form of having to bail out the banks.

(5)  Americans have been conditioned to be risk-averse and to take out various forms of insurance policies as an additional safety net.   But increasingly, insurance carriers seek to deny these claims or make claimants go through waves of litigation to overturn "bad faith" denials of claims or "cutbacks" where claims may be paid only partially or after additional conditions are arbitrarily imposed and made intentionally difficult to satisfy.   Litigation for such "bad faith" denials or other tactics by insurers is sure to increase, as consumers increasingly realize that contracts are worth little more than the paper they are printed on. 

Americans are becoming an increasingly economically rational people.   They are putting less and less faith in institutions, whether they be government (increasingly viewed as corrupt, incompetent, ineffective or flat-out inept), the law enforcement authorities (increasingly viewed as incompetent or corrupt after the politicization of the Bush Administration Justice Department), insurance companies (which are cutting back coverage while increasing premiums, co-payments, "red tape" procedures and, of course, their profits and executive compensation), the banks (see all of the above), and even religious institutions (after most major denominations have endured at least one scandal involving illicit sex or criminal behavior).  

The growing trend towards abandoning "underwater" houses even when borrowers can pay the monthly payments shows that the old stigmas of foreclosure and damaged credit mean little (or nothing).   After all, a good credit score doesn't mean much when there's no credit to be had.

Let us hope that the remaining stigmas against criminal, pathological behavior don't become similarly weakened.   Such a trend will have our society careening towards a lawless, "Mad Max" post-apocalyptic society.

You still wonder why people are angry?   They are very, very worried.

All of the above is prompting a huge political realignment.   The old divisions of liberal vs. conservative, Republican vs. Democrat, are old school and rapidly decaying.   The new divisions may be private sector employee vs. public sector beneficiary (whether employee or benefit recipient), taxpayer vs. ward of the state, subsidizer of benefits for others vs. recipient of those benefits. 

When society becomes one big tug of war between the haves and the have-nots, it is time to watch out.

Paterson, Witness Intimidation and Police Misconduct

The currently unfolding scandal involving the use (by either New York Governor David Paterson and/or his top advisors) of State Police to contact a plaintiff/complainant/ex-girlfriend in a Family Court matter (which she dropped) reeks of a Soviet-style abuse of the police power.

It is important to distinguish between innocuous uses of persuasive powers which we are entitled to use, and the employment of men with badges and guns to deliver the same message. Men and women confronted with the latter are not easily inclined to assert -- or remember -- their constitutional rights. They are inclined to be intimidated. And many in law enforcement know that.

There are some commentators who are calling for criminal prosecution. Indeed, witness intimidation is a state and even a federal crime. Just ask former federal prosecutor Paul Bergrin, who is in jail awaiting trial for witness intimidation and other charges and is facing the specter of life in prison.

The signs are growing that there has been serious police misconduct. Whether it is a crime is debatable. The bar for determining fitness to hold public office is a lower standard than "beyond a reasonable doubt.". As more facts emerge, it is becoming clearer that Governor Paterson has either approached or surpassed the bar. A call for his resignation is no longer an overreaction.



If Governor Paterson encouraged or was complicit
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Monday, March 1, 2010

Ambition Trumps Party Loyalty

The recent controversies and scandals -- oh, that's all the time -- bring to light an interesting misconception.

Some people think that politics is a death match between Ds and Rs, that all Ds have a loyalty uber alles to the Grand Donkey and all Rs pay similar fealty to the Elephant in the Center Ring.

Party loyalty may hold with a significant portion of the electorate, and particularly with small contributors (sub $500). However, when it comes to big business and the well-heeled, labels don't matter.

Individual ambition is the mother's milk of politics and the reason many successful politicians seem to vanish once a scandal hits a tipping point. You see, at such a point the famous politician stops being feared -- or respected -- and starts being seen as vulnerable to the death blow. Afterwards, there is the silent scorn of the fallen (and often, convicted) politician. It is all about when the politico stops being viewed as someone who can help others advance, and starts becoming a barnicle, serving no purpose (some will argue he never served a purpose) but to block someone else's ambition.

Remember: the ambitious have no true friends.

And so it goes in politics.

There is a lesson for those of us who care about legislation and regulation, even about justice (which is affected by the former as well as the quality of judges). It is never enough to appeal to the merits of a position. Unfortunately, one must often appeal to the supersized ego of the cheshire-cat grinning officeholder who cares little except for what is in it for him. From such selfishness arises greed, and therefrom oft comes the senses of privilege, entitlement and ultimately, being able to act with impunity.

The honest services statute is currently before the Supreme Court (which this fall heard several cases and has yet to rule). There are flaws of vagueness in the statute which are likely to be remedied by Congress even if the statute survives. It is important to note that in many instances, a crime may be hard to define -- in which case it can fairly be said one has not occurred. However, in many of these cases, one cannot help but evaluate a case and get the sense that something is just not right.


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