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Friday, June 27, 2014

Principled Man Or Saboteur? Examine How The Indicted Act in Public

Sometimes extreme adversity and how you respond to your personal "black swan" event will determine more than family wealth, educational achievement or personal financial wealth your ultimate outcomes in life. 

Sometimes, the people around you can determine (fairly or not) quite a bit about your outcomes. That is, if you let them.

The Gospel According To Matthew is a useful guide. From Matthew 7:15 -- 
"Watch out for false prophets. They come to you in sheep's clothing, but inwardly they are ferocious wolves.
A real leader will not tarnish the principles or products with which he is associated by continuing to promote them after his personal problems, such as a revelation of unsavory character, indictment, arrest, plea of guilty or impending imprisonment.

The person who is willing to degrade those principles, and by association, compromise or degrade the character and destroy the reputation of those sharing those principles, is not a martyr. That person is not a principled person, unless principle is defined as a narcissistic impulse to save oneself at the expense of anyone close by. That person is using everything and everyone around him as a shield.  You are collateral damage to him, nothing more. 

What is that person? That person, my friends, is a saboteur. 

Respond accordingly.


Wednesday, June 25, 2014

Warrants Needed For Cellphone Searches

The Supreme Court has ruled in a broad 8-1 ruling that warrants are needed to search your cellphone.

This decision is a major and much-needed victory for adherents of technological privacy, and a rebuke to the post-9/11 trend of eroding constitutional protections in the name of administrative or government convenience. 

Tuesday, June 24, 2014

Enron-Type Life Sentences For Port Authority Fraud? Could Be!

New Jersey state and Port Authority of New York and New Jersey officials who had the Port Authority raise $1.8 billion from a bond offering to use those funds to repair an "access road" to the Lincoln Tunnel could be facing jail time (20+ years, or effectively, "life") comparable to that of the upper management at notorious companies like WorldCom, Refco and Enron.  More on that below.


The New York Times speculates on the real legal trouble for people in the Port Authority and the Christie Administration. 

Even worse is what the article DOES NOT say. If a billion dollars were raised and spent fraudulently, and a federal securities fraud criminal prosecution were brought, anyone considered to have been a criminal conspirator would be liable for the entire monetary loss in the alleged fraud. (Conspiracy to commit a crime requires only that someone intended to do any one single component of the crime, so someone who is 1% culpable could be on the hook for everything.) With the federal sentencing guidelines based almost entirely on the dollar amount of the fraud, any of the co-conspirators could be facing more than 20 years in prison! That's because, under the 2010 federal sentencing guidelines covering financial crimes (because the offering was in 2010), the "offense level" for a fraud of this magnitude is a whopping 42. The base level for the crime is six points, but the amount of the fraud being over $400 million adds 36 points to give you 42. Under this 2010 sentencing matrix (go to page 401), even a Level One offender (no prior convictions) could be facing 360 months to life. 

Now, there are myriad ways to get "downward adjustments" for such a draconian sentence. You could "cooperate" with the government and try to get the government to recommend leniency. (If you feel like learning more, go to Section 5K1.1 of the Guidelines. Bring an oxygen tank and plenty of nonperishable food.).  You could also seek leniency on various hardship grounds, like family or caregiver considerations. Some audacious white-collar criminals have even reportedly discovered their alcoholic or substance abuse problems and gotten credit for going into rehab. And the guidelines are now "advisory" pursuant to a 2004 Supreme Court ruling, so judges have quite a bit of latitude to depart from the guidelines matrix (in both directions, I might add).

Finally, a second point arises from the article's mention of the Martin Act, which is the New York State securities statute (the "blue sky law"). The Martin Act was recently abused by then-Attorney General Eliot Spitzer to go after all sorts of small fry, because the Act allows for state criminal penalties without finding criminal intent!


I will continue to monitor developments.


Monday, June 23, 2014

Missisippi's Open Primary and Party Raiding

Missisippi's runoff election for the Republican nomination for U.S. Senate is tomorrow. It is reported that forces involved with the Democrats -- the opposing party -- are trying to boost crossover voting in that state's open primary to boost turnout for incumbent Senator Thad Cochran.

Missisippi has what is called an open primary. That means anyone can vote in the primary regardless of party affiliation.  In many states, however, the primary vote is restricted to people who have chosen their party in advance or in some cases, at the polling place. Primaries in these states are referred to as "closed primaries."  The mechanism these states use to enforce the sanctity of the electoral process is "deferred enrollment," where you have to switch parties well in advance of the primary election.

Before you think that closed primaries somehow disfranchise voters, know that the practice has been upheld by the Supreme Court.  The basis is that it deters the practice they call "party raiding," and helps preserve the integrity of the primary election and by extension supports the right of association of voters who choose to enroll in a political party. The New York State practice (which currently is an almost 11-month deferred enrollment period) was upheld decades ago in an excellent 1970 decision in Rosario v. Rockefeller

What do you think about open primaries? Do you think an open primary defeats the purpose of selecting a political party? 

Thursday, June 19, 2014

Redskins Part 2: Another Offensive Sports Logo

The cancellation of the Washington Redskins trademark has disturbing implications for business, but what about the implicit hypocrisy of inaction towards other potentially disparaged and offended groups?

As a proud Roman Catholic, I believe the name SAN DIEGO PADRES and its original logo of a fat bat-swinging monk is highly derogatory and disparaging to Roman Catholics and all people of faith everywhere. 

If you are a Roman Catholic (and even if you're not), have you been offended?

If so, you may have standing to petition the Patent and Trademark Office to revoke the Padres' trademark registration.  After all, now there is precedent with the ruling against the Washington Redskins. 


Rethinking Forgiveness: The True Mission of Religion?

Are major world religions increasingly missing their core mission?

Mind you, this is not a point on doctrine. It is a point on the institutions, the human and thus altogether quite fallible institutions which are supposed to support worship.

From time to time there are new reports of investigations of abuse (especially of children) at the hands of various religious leaders or lay people within the setting of a religious institution. The various priests and other church officials now admitting they didn't report certain abuses (of all types) just totally lost sight of their mission and primary duty, which is to minister to followers and congregants. 

What are they concerned about when they consciously avoid making judgments and taking action?  Well, it's the institution.  That can be dressed up and rationalized -- e.g., by protecting the Church we are helping so many more people through our programs, etc. -- but even that act of rationalization is fatally flawed in its motive (it doubles down on depraved indifference) and by degrading the credibility of the institution successfully compromises its ability to perform any other aspect of its mission in either the spiritual or secular realms.

All institutions behind a faith have a mission. But protecting the "institution" is not part of that mission. What is central is the faith, the doctrine, and only by extension, those secular acts which help fulfill that faith. Treating the institution as a sentient being which warrants special treatment because it is an "instrument" of a divine being is, well, one creative rationalization. It may work in certain monastic closters and even in some courts of law, but it will also dissipate the moral high ground upon which religion depends.

The failure to report abuses within a religious setting may not necessarily be criminal (this is different from the underlying act), but it is such a severe failure in judgment that it cannot be "forgiven." 

And lest we forget, there is no obligation to forgive. That obligation deserves further examination. Let's explore the thought process behind the sense that we are obliged to forgive when people "apologize." Consider whether there is contrition. Consider whether the wrongdoer has done this before, whether the apology is genuine, and whether the apology is sincere or just done to avoid responsibility (or worse, to live for another day, a day to repeat the crime on another victim).

Such an obligation is a fiction voiced by the manipulative who seek future opportunities to repeat their sins. This impulse to forgive needs to be resisted fiercely and viewed for what it is: a moral weakness of its own kind that borders on narcissism. Resist it! 

Those of us being asked to forgive must -- it is a duty -- remember who we are responsible for defending, those to whom we and we alone owe a duty

We must resist the call to forgive, particularly when the forgiveness carries with it the risk, borne by the totally innocent, of future harm. To protect those we love, we must neither forgive nor forget, and be very willing to face the claims of moral judgment from even those who have forfeited any moral claim to judge anyone.


Wednesday, June 18, 2014

Redskins Trademark Cancelled For Disparagement

Could private property rights and even basic civil liberties be under even more extreme attack? Has the eminent domain-type sense of government seizure of real property been extended into the intellectual property domain?

The United States Patent and Trademark Office has now cancelled the trademark registrations of the Washington Redskins because "Redskins" and an Indian headdress in the logo are considered disparaging to Native Americans. The full decision includes a discussion on the merits of the racism argument, and is worth reading. 

Are the next targets the Cleveland Indians or Chicago Blackhawks? (The Blackhawks' logo also features the head of an apparent Native American, and includes four feathers.) 

The federal government apparently is using its full weight to pressure a private business to change its name, in the process destroying millions of dollars in brand equity.  There is no compensation to the Redskins' owner (Daniel Snyder) for the loss in value to his franchise, which is valued (perhaps wildly optimistically) at $1.7 billion by Forbes magazine including a separate value of the brand -- that is, the name "Redskins" -- of $145 million. Perhaps overzealous government confiscation (or transformation) of property -- there is really no other way to view this -- is now a very real "risk factor" for any business.

Can your property be taken away because someone, with or without cause (and that's operating on the honor system, to be honest), targets you with a claim of "disparagement"?  If so, then the mugger's most effective weapon of choice becomes an Alinskyite imputation of the vilest of personal characteristics to his mark, with the apparent sanction and blessing of the federal government. This development may usher in a new age of legal plunder.

The real objection that deserves to be made is against the concept that select groups, claiming to speak for victimized classes, have a de facto right of approval or disapproval on the operations of a business. Are we entering an era where concentrated public opinion against certain businesses can be used to extort financial settlements or changes in business operations, including ones where the enterprise is made to suffer a financial penalty such as with the Redskins' potential signficant loss in brand value? Are self-proving cries of racism or other offense an acceptable motive to engage in the equivalent of the now-rightfully-banned practice that used to be called "redlining"?  And at what point do these rulings and private efforts start to echo the same egregious civil rights violations that were finally found unconstitutional by the U.S. Supreme Court in the 1950s and 1960s?



Monday, June 16, 2014

Warrantless Spying On One Hand, Stonewalling With The Other

The New Jersey Attorney General's Office -- whose Attorney General is not elected, but is appointed, by the Governor (Chris Christie) -- has reportedly solicited test cases to establish that the State has the right to get the phone records of people without getting a warrant.  This means that people not convicted of a crime, and people as to whom no probable cause that they have committed a crime has been established, would still be subject to having their personal records searched.

Your Fourth Amendment rights would be under new jeopardy.  The Fourth Amendment, lest you forget, provides as follows:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon Probable Cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The basis for this story is a troubling memorandum out of the New Jersey Attorney General's Office and just reported earlier today by the Newark Star-Ledger.

It deserves noting that the Attorney General's Office, being a part of the state Executive Branch, is effectively a defense counsel for a gubernatorial administration currently under siege in various scandals.

Theoretically, at least, the right to warrantless access to personal communications records would give the Attorney General's Office, operating under the auspices of the Governor's Executive Branch, the ability to inspect and surveill (and in a darker scenario, harass and intimidate) members of the press, public-minded civic activists and media and political critics.

In the meantime, the Christie Administration has routinely deflected public records requests under the state's Open Public Records Act.  (I have a client who has sued to get some of these records.)  Transparency, it seems, is a one-way street.

This initiative is a big threat to civil liberties, and warrants (no pun intended) continued attention.



Monday, June 9, 2014

Bitcoin Smart Contracts: The End of Lawyers?

By New York lawyer and blockchain technology innovator Eric Dixon
From June 2014:

A revolution in information technology may soon turn the theory of “smart contracts” into an actual mechanism for increasing trust among transacting parties, reducing the risks inherent when third party intermediaries are needed and even redefining lawyers’ role in and stranglehold over the modern economy.  Universal access to mathematical proof can give new life to the Russian proverb (which Americans may know from President Reagan’s English translation): “Trust but verify.”1

Bitcoin2 – along with a growing number of similar cryptosecurity systems such as Ethereum3 -- is a series of algorithmic protocols which use mathematical proof to verify and secure data. Its ability to provide for the strongest, most verifiable proof of ownership with which to facilitate fast transfers of information and assets lends itself to other applications where the need to involve and trust in a third party (and the risk of third party negligence, malfeasance or failed performance) can be reduced or eliminated.  This gives Bitcoin a much wider potential than the almost exclusive conception of it – among the sliver of people who have even heard of it – as an electronic currency or the latest hope of anarchists and utopians who dream of a world run by benign computer code, anything other than bad men. The Internal Revenue Service is one of the few government agencies to even acknowledge Bitcoin but does so only to conceive of it as an alternative, unofficial currency alternative, labeling it in recently issued guidance in March 2014 as “virtual currency” as to which it is to be taxed as property.4

This development can redefine or turn obsolete entire old-economy professions, trades and jobs whose business models have been based on charging to provide a verification function.  Lawyers might be one suspect class – and as a particularly reviled segment of the economy whom everyone else loves to hate, they are the focus of this article.  But be warned: other suspect industries including segments of the insurance, medical billing, accounting and financial advisory industries may soon have their turn in the line of fire. Bitcoin can endanger or destroy the value-added feature of any rote act or advice or make it much less expensive if it could be performed by much cheaper lay people or even a computer algorithm.  But not all is lost. The real value-added components in those professions, featuring judgment and experience not replicable by computer code or outsourcable to clerks, will survive.  In fact, they may even grow in value and stature. Some lawyers may become more indispensable than ever!

The fantasy of the lawyer-free nirvana does not survive an encounter with reality or any fact-based understanding of the real function of lawyers.  Most people really expect that that lawyers are supposed to be paragons of truth. (Stop laughing!) It is neither true nor is it even their job! It is absolutely erroneous! Lawyers are not supposed to be neutral factfinders.  You know who has that job? Judges, that’s who. Huge difference! Some lawyers are very honest; others are incredibly dishonest yet not criminal. But let’s not lose sight of lawyers’ actual duty – something totally misunderstood or arrogantly dismissed by 99% of the population, including many ignorant lawyers – which is to zealously represent their clients’ interests within the law.5

These lawyers are advocates, and they are adversaries who do battle with the lawyers on the other side of a dispute or negotiation. They are not meant to be impartial. They are absolutely, positively not supposed to be neutral finders of fact or to “fight for justice.” They are not judges. Lawyers are advocates and are supposed to zealously represent their clients (and only their clients). This is the mandate for lawyers, whether they are representing clients before a regulatory tribunal or a judge, or drafting complex agreements to govern the relationship between parties and (hopefully) preclude future misunderstandings that often form the genesis for threats, lawsuits and acrimony.

These lawyers do battle for you – and you very much still want and need them on your side. In fact, as I’ll soon explain, you’ll need them even more.

There are some lawyers whose actual or perceived role is that of custodian or third-party verifier of facts. These roles emphasize the lawyers’ independence and the lawyers chosen for these roles are picked precisely because they are neutral and do not represent either party in the matter. In these situations the lawyer is not an advocate for the two parties – but is the lawyer for the third-party intermediary (such as the bank) between the two parties, and his importance arises from his neutrality (and his presumed integrity). Lawyers working for institutions which act as agents or fiduciaries have a neutral role but very much advocate and defend their client – their institutional employer.  The other independent lawyer’s role is that of a judge, who again does not represent either party but rather referees the dispute.  

Getting rid of the third party interference does not, however, eliminate the need for the two transacting parties to reach a mutually-understood agreement. On the contrary, it increases the need for the parties to agree, and for their respective lawyers to produce a physical agreement upon which trust may be placed. If that agreement becomes codified in a bitcoin-type protocol, that agreement had better be top notch. After all, trust in a bitcoin-ruled world will depend on the quality of the inputs (or in simpler terms, best to avoid “garbage in, garbage out.”). The essence of the electronic smart contract, therefore, becomes whatever would have gone into a 20th-Century paper contract. And the production of contracts will go from the domain of scriveners (glorified word processors) using boilerplate to proficient specialists whose judgment, talent and experience will be more critical and valued than ever. 

The result in many professions will be a new nirvana for talent where merit reigns supreme and customers get cost savings from efficiency. 

However, the legal profession is crucial for dispute resolution. How would a smart contract reduce or eliminate the need for lawyers? In the imagined lawyer-free world, smart contracts would have to eliminate all potential for disputes (honest or otherwise), all potential for nonperformance or evasion of obligations under the contract and, indeed, all potential for redress or challenge of such performance. This is far from nirvana; it would mark the loss of basic freedom!

This vision mistakenly views the smart contract as the enforcement mechanism which cannot be disobeyed. But this paradigm is not merely wrong in its premise. It is wrong as a policy and contractual rights matter. It ignores or disregards legitimate disputes in any relationship over the quality of performance, the degree to which an agreement is fulfilled, and a multitude of other terms and factors.  Parties cannot lose their rights and abilities to go to court to defend their rights, just in the name of greater efficiency. 

Any enforcement mechanism, the strongest and clearest contract, can be ignored. Even court orders can be disobeyed (although there are serious penalties for that).  But willful nonperformance is only one problem with any business relationship. Most contract disagreements arise out of disputed performance or disputed interpretations of contract terms. This is why contract litigation and business litigation continues to increase, paradoxically, despite greater reliance on increasingly complex agreements.  

These type of disputes then run smack into the brick wall of objections over the danger of eliminating the due process to which Americans are accustomed and to which many Western businesspeople rely upon.  Can a smart contract ever eliminate noncompliance? And can one ever be implemented without reducing or eliminating the right to redress for a party which considers itself wronged in the performance of an agreement? 

It seems the so-called smart contract is really a utopian fantasy that assumes that people are both as rational and honest as many of us wish we would be. The fantasy fails to account for malevolence and incompetence, of which both lead to many disputes and much litigation. It is entirely unclear how – if not flatly impossible for -- a smart contract to prevent, negate or account for events which are not legal problems nor legal system drawbacks, but instead reflect basic human failings intrinsic to imperfect human character.

Basic human nature will never be changed. Dishonesty is part of that and has been chronicled since the beginning of recorded human history. Blaming lawyers or the judicial system is like blaming the bullet for the murder. Such an approach is an easy way out for the truly responsible to avoid accountability for their willful, strategic defaults on contracts to which they freely entered and possibly engaged in deception in order to induce the counterparty to enter into and perform under the same contract. Some people break contracts often, and contract breaches are not uncommon. This is the same flaw that underlies the concept of overregulation and overcriminalization – the thought that if only we had more laws, or the right law, and were just tough enough on enforcement, that then we would have the safe and desirable society we all want.

The issue here is not the lawyers, the quality of the agreement or the judicial process.  The problems are the willingness of both parties to continue to perform under a freely-executed contract when one or both parties later decide – for a good and valid reason, or a dishonest reason -- it is no longer economically advantageous (for them) to continue to perform under the agreed terms.  This is a problem of “strategic default.” The contract, whether it be a Magnus Opus or smart contract, will not be the ironclad barrier. The parties will always be the issue.  How ethereum or any other smart contract paradigm would solve the human advantage-seeking dilemma by precluding or precluding legal process redress – and to Americans, the concepts of “due process” and “equal protection under the law” are considered fundamental constitutional rights and virtually sacrosanct (even if widely misunderstood by lawyers and laypeople alike) is unclear – remains uncertain.  

Unless, of course, protocols replace people.  So let’s get rid – of people? This sounds like the road to an endless nightmare loop of bad science fiction gone mad. Rise of the machines? What is this? Terminator 4? 

Does the smart contract replace the legal system? Or does it simply push us back to an earlier, less complex stage in human history when conformity was a stronger (if sometimes unfair or even discriminatory) impulse, when “the law” wasn’t necessarily needed because the social punishments of having no one do business with a dishonest player were enough of a deterrent?

Perhaps the root problem is the contemporary belief by bad actors that the legal system provides a way to avoid justice, to delay – and yes, to gamble that one can ultimately avoid -- the consequences of bad behavior.  That theory would explain the paradox, that there are so many more lawyers in Western society than there were two generations ago, that the standard business contract has grown much longer and more complex in the same interval, and yet the number of disputes and other metrics measuring litigation have exploded in that time.  

The common lay explanations – there are too many lawyers, lawyers are encouraging lawsuits, much of the legal work is substandard – incorrectly seek to deflect blame from the root cause: flawed human behavior manifesting as advantage-seeking within a justice system that allows bad actors to delay their day of reckoning.

There is no solution. Conflict and disagreement will always be with us. But there can be progress, and there can be ways to reduce unpunished, undetected bad behavior. Smart contracts can serve as a clearinghouse for information, so as to sanction and deter bad behavior by notifying the larger community of users that a particular contract party has failed to live up to his word in a contract and assuming the community will use its power of ostracization to levy a penalty.  

Bitcoin or Ethereum-type protocols for smart contracts have their efficacy in their ability to strengthen trust, but at its core, trust works only when society members (anyone within the group) obey a shared set of rules as part of the price of membership.  As part of this deal, there is an agreed-upon punishment for noncompliance – banishment or lesser sanctions, or “getting voted off the island.”  

Smart contract theory holds the potential for a creative use of technology, not to replace human nature, but rather to rediscover and celebrate human nature and rely upon it to reach its goal of fostering and facilitating commerce. This is progress! Revisiting what worked in the past, the old social rules, and discarding the failed recent paradigms of what we thought worked but really only made commerce more difficult with more lawyers, more litigation and more loopholes, makes for mature policy.

In these ways, smart contracts do hold the promise for improvement. They won’t negate or diminish the role of the legal profession, which will surely change.  However, they have the very real potential to strengthen human bonds by allowing parties to verify each other’s information.  Any inhibition in the ability of bad actors to harm others in commerce will necessarily decrease (but not eliminate) legal conflicts, at least until the bad actors adapt as all organisms do.

Trust will increase, when it can be objectively verified.

The trusted and trustworthy will increase in value and they will become more sought out.

Bad actors will be increasingly shunned and economic loss shall penalize and deter (but never eliminate) bad behavior. 

This potential, however, requires a credible, trustworthy protocol which is and remains impervious to attack.  And you can be sure that the bad actors will try very hard to destroy it.

They simply have too much to lose.

** ** ** ** ** ** **

FOOTNOTES

1. Illustrated World of Proverbs, accessed June 2, 2014 at  
http://www.worldof   proverbs.com/2012/05/trust-but-verify-russian-   proverb.html, attributing the saying to Vladimir Lenin.

2. Satoshi Nakamoto, “Bitcoin: A Peer-to-Peer Electronic Cash System,” 2008, whose authorship is attributed to Satoshi Nakamoto but whose existence is questioned.  The paper is referenced and relied upon herein while acknowledging the issue of uncertain authorship.

3. Gavin Wood, Ethereum Project, “Ethereum: A Secure Decentralised Generalised Transaction Ledger,” 2014.

4. Internal Revenue Service, Notice 2014-21, accessed June 2, 2014 at http://www.irs.gov/pub/irs-drop/n-14-21.pdf.

5. American Bar Association, Model Rules of Professional Conduct: Preamble & Scope (2014), accessed June 2, 2014 at http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/model_rules_of_professional_conduct_preamble_scope.html. The role and authority of lawyers varies by jurisdiction. The nomenclature does not change lawyers’ primary duty which is to zealously represent the client within the limits of what is legally permitted. See Preamble, paragraph 8, id.  For example, American lawyers are not permitted to turn in their own clients to the authorities unless there is imminent risk of commission of a violent crime or crime involving fraud. That is the crime-fraud exception to the attorney-client privilege. See Sue Michmerhuizen, “Confidentiality, Privilege: A Basic Value in Two Different Applications,” Center for Professional Responsibility, May 2007, accessed June 2, 2014 at http://www.americanbar.org/content/dam/aba/administrative/professional_respon    sibility/confidentiality_or_attorney.authcheckdam.pdf.

 

Eric Dixon is a New York lawyer who works extensively with blockchain and cryptocurrency innovators and startups. He is the co-inventor of two blockchain technology / FinTech innovations as to which filed patent applications have been allowed, and the grants of each are expected by late 2016.

Monday, June 2, 2014

It's Too Easy To Vote: Why Real Reform Won't Happen Until It's HARD to Vote

Americans love to whine! People love to complain about politics and political gridlock. An accepted principle is that the country "needs" greater voter participation, that not enough people are engaged in the process. When commentators don't know what to say, or have nothing to say, they say this and repeat it ad nauseam. 

What if that idea were utter rubbish?  What if the solution lay in the historical trend, dominant throughout human history, towards the precise opposite, towards using merit (however subjectively defined) to restrict the franchise to those who care and value it the most?  In other words, is the solution to society's "political dysfunction" the enactment of restrictions on voting to limit and concentrate voting power towards the stakeholders who have the most to lose by its abuse? 

Today's Imperfect Practices

Right now, the United States has a dystopian voting culture where government employs the honor system as the means to enforce the barest of qualifications upon the franchise, and in which the letter and spirit of election laws are honored in their breach. We insist on a minimum age and take the word of one's declarations as to residence, citizenship and not yet having been convicted of a felony.  (In fact, in present day New York City, a bill to allow non-citizens to vote in elections for New York City elected office has been sponsored by a majority of the City Council.) 

One supposes if such attitudes work for, say, residential mortgages, then there should be no problem with voting, right? Even worse, anyone who dares to insist on verification of these minimal requirements is targeted with the most vile of motives and character slanders.  It is as if the right to vote is so sacred that to even suggest compliance with the law is a prerequisite for voting is to risk ostracization and even prosecution for the violation of another's civil rights.  Yet such failures (and refusal) to verify the most basic qualifications actually erode and dilute the value of the vote and obscenely violate the voting rights of those responsible citizens who follow the letter of the law.

The Accepted Paradigm Rests on Flawed Assumptions; A Paradigm Shift In Attitudes Is Needed

Perhaps the solution -- the best from an outcomes perspective -- is a fundamental change in our entire concept of desired voting and political behavior. 

Instead of pushing for "more" political participation, as self-styled "good government" groups are wont to do as they extort donations from corporate benefactors terrified of being accused of being undemocratic or racist for refusing, might the solution be to have less participation?

After all, tons of money are already spent on elections and campaigns.  The one special election for an open U.S. Senate seat in New Jersey this past year cost an estimated $24 million ($12 million each for the party primary and general).  Campaigns raise and spend a fortune; it is estimated the 2012 presidential race generated $1 billion in spending. This excludes special spending through so-called "independent expenditures" or issue advocacy expenditures not considered electioneering.  It is hard to imagine that outreach could be improved.

In addition, it is hard to find people who actually want to vote, who care, and who cannot vote. Technological advances mean nearly everyone who wants to be connected is. Email and cell phones means increasingly-tech-savvy campaigns can contact their base supporters as well as average voters. And in a day where political campaigns dominate popular media (as the content of shows like Saturday Night Live will attest) and television ads increasingly saturate both the airwaves and social media ad space, can one really find many Americans without serious mental impairments or other infirmities who are seriously, genuinely unaware of major elections?

The central reality which politically correct people dare not say is that the majority of Americans just do not care. In a society where people commonly vote for the winner of game shows, reality shows and "talent" shows, spend hours a day on all sorts of social media, anecdotal evidence is very strong to suggest that the grand majority of people who are motivated are indeed voting. (Whether they are voting for the candidates preferred by the self-styled good government groups and elites is another matter entirely and one suspects the choice of the vote is really the issue to which these organizations object.)

So why the push for increased voting? Such efforts would seem to pull in the increasingly indifferent and -- since we are all allowed to make judgments -- the increasingly ill-informed and ignorant. The result is that the vote of the concerned, the educated and the true stakeholders (e.g., asset owners) is diluted (and greatly so) by the vote of the indifferent, irresponsible, uneducated and slovenly remainder.

The danger of seeking greater "participation" "by all means necessary" should be obvious shortly. An unmotivated segment of the populace, already demonstrating a reluctance to vote even when it is free, increasingly convenient and the subject of much content in the popular and social media, might be convinced to "vote" only through undesirable channels. They might have to be induced (or bribed) to vote with "goodies" that naturally would be paid by others, or even worse, they might be voting through the hands of others -- their votes would be stolen through fraud and cast by those opportunists seeking to game the system and rig election outcomes to achieve their political goals.  After all, indifferent and feckless voters would hardly be a likely constituency to report voter fraud, suppression or other illicit activities.  The dangers to democracy of such unrestrained abuses can be immense.

A Proposed Solution: Encourage Voting...By Making It Harder To Vote

The solution might be to move in the opposite direction, to move towards a system where the importance of voting to the maintenance of our democratic system would be emphasized by the implementation and even application of barriers to the vote.  As long as government is in the sordid practice of trying to modify behavior, and as long as many Americans accept as gospel the right of either The Government or The Elites to engage in behavioral modification or otherwise attempt to drive our actions, why not use these elitist impulses to fuel a move in the opposite direction? Why not make people treat voting as a privilege to be honored and treasured, an act which is to be prioritized at the expense of sacrificing other desires, and to compel people to subordinate their other private matters (such as the horrible capitalistic impulses to make money, make a living and actually support one's family) to more socially-useful, higher priorities like civic participation?  

If we are a Nanny State and most people are okay with that, then what would the objection be to similar manipulation when it comes to regulating the right to vote, right?

I propose the following. Such "barriers" would include:

** the requirement for picture identification for all voters to register to vote or to switch party enrollment, which requirement would be on par with existing requirements to obtain a driver's license or official government identification card.

** actual election day in-person voting with rare exceptions for physical infirmities; this would be on par with one's getting a flu shot or other vaccination.

** the automatic cancellation of party enrollment for failure to vote in at least one party primary over three consecutive years, and of voter registration for failure to vote in at least one primary or general or special election in any two-year period; this is on par with the requirement to get an in-person automobile inspection (in most states) every two years.

** the elimination of "open" primaries so that party primaries are restricted to party members; and

** to protect the integrity of party primaries, preserve the First Amendment constitutional right of association of party members and deter the practice of "party raiding" by outsiders not genuinely aligned with the principles of the targeted political party, the institution of deferred enrollment statutes to require changes in party enrollment are made before the end of the period for party primary candidates to take measures to qualify for the primary ballot (e.g., registration fees or petitioning through the gathering of signatures from party members); this is hardly onerous in light of the narrow "open enrollment" periods under the new Patient Protection and Affordable Care Act. 

Such barriers would be only a beginning. True radical political change might erect higher barriers such as the institution of poll taxes.  Yes, this would link the ability to pay a fee in order to vote, putting it on par with the corporate shareholder voting right: you must buy a share in order to vote at the annual meeting. The key would be the even-handed application to avoid de facto discriminatory practices, as one must be aware of the valid sensitivities of some historically-targeted groups.  

Historical Precedent; Using Equal Application To Ensure Fairness For All

This is not fundamentally different from the colonial era practice that limited voting rights to property owners.  That is because colonial-era authorities recognized that in a system of "one man, one vote, no questions asked," the general masses, largely regarded as unshaven, uneducated but most of all regarded as unprincipled, would be liable to vote en masse to seize and redistribute the property of the landowners and merchants. 

voting threshold requiring ownership would -- and did -- serve to restrict the franchise to those who had far more to lose from bad policy decisions than they might be suspected to gain from benefits of oligarchies, state-sanctioned crony capitalism (what in colonial days was mercantilism and in the 19th Century, pre-Sherman Act, was monopoly capitalism).

But there is an alternative to reaching back to practices from our history which have sordid, and deservedly negative, meanings for many Americans whose ancestors suffered from legal and societal discrimination. Today, we have corporate law governing corporate shareholder voting rights. That is, one share of common stock, one vote. As long as you buy a share, you have a vote and no one cares who you are, what is your skin color or religion, or even where you reside. In fact, the truest, purest form of democracy on the planet may be practiced nowhere else than in the boardrooms of and record rooms of stock transfer agents and proxy solicitation firms serving corporations whose shares trade on the stock exchanges within the United States.

In the corporate arena, the "poll tax" of buying a share is remarkably democratic and egalitarian; all shares vote equally (at least within their classes, subject to exclusions seen in the certificates of designation for classes of preferred stock or other derivatives that are available and disclosed to all).  Why not use it in our broader society? Such a practice would instill a respect for the franchise as something very important, something that has a value, and something that, yes, it has to be earned. It propels the standard that one had to have enough merit to earn his (or her) keep in order to have the right to vote to decide how to appropriate tax money collected from others. As for the valid fears that such measures could be misused for racially discriminatory objectives, the key to success would be a painstakingly even, fair application across the board of such barriers should quickly dispel fears of a return to the odious days of the early to mid-20th Century.  (In addition, it should be noted that poll taxes and other measures were often designed to prevent poor, non-landowning whites from voting and to restrict the franchise as much as possible to property-owning stakeholders.)

American corporate law is remarkably consistent and fair. Generally, one share of common stock has one vote. It's just that some people have more votes, because they have more shares. They have more votes, because it is recognized that owners with more shares have more at stake; while they have more to gain that recognition is never divorced from the reality that the owners have just as much to lose.

American corporate law also recognizes and rewards the entrepreneurialism and risk/reward calculus of our capital classes. Voting rights are recognized as a form of currency with its own value, hence the rise of supervoting stock and the creation of different classes of securities issued by a company with different sets of rights. The issuance of such instruments as "Class Z Participating Preferred Stock" illustrates how corporations recognize and reflect either the investors' demand for certain voting rights or their willingness to relinquish or subordinate those rights in exchange for a monetary return or other term that has a greater value.

Above all else, corporate law and capital structures respect and respond to their constituents. Investors to whom voting rights matter most get to hold shares with voting rights. Investors who care even more about voting can buy supervoting shares (if issued). Investors who could care less about their vote can buy nonvoting shares which have other features that offset (or compensate for) the loss of the voting right. In short, this is a brilliant legal framework that respects and responds to the desires of the stakeholders whose monies are at risk.

So why aren't we allowing people to sell their votes? If a vote has more value to the purchaser and little enough value to the original holder so that he or she is willing to sell it, why not allow that? This is a fair trade with willing and satisfied participants on both sides of the transaction.

But the welfare-dependency state and its related-by-birth political establishment DO recognize the value of the stakeholder in our politics. The difference is just that they define the stakeholder differently. In their world view stakeholders are measured not by wealth but by power (yes, a different form of currency).  

Now, there are groups whose interests are so implicated by political and civic discourse that their voices need to be given the proverbial seat at the table. An example is the subset of our younger generations who are subject to military service in the event of a draft and who, even today, are required to register with the Selective Service upon turning 18 years of age. A new voting regime can create an exclusion for men and women between the ages of, say, 18-35 who are subject to military service. Such regulatory ingenuity should not be a difficult task to achieve for the regulatory state with its legions of bureaucrats and lawyers.

This change may seem radical at first, but it is a "back to the future" approach with substantial precedent in American corporate law. In short, this proposed new voting paradigm elevates and enhances the role of the stakeholder in American public life.

Eric Dixon is a New York corporate lawyer who has represented political candidates, parties and media organizations in various election law compliance, opposition research and civil litigation since 1994.