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Sunday, June 28, 2015

Obergefell And The Supreme Court's Warning To Finance, Business Communities

The Supreme Court rulings in two cases involving statutory interpretation of the Affordable Care Act and constitutional interpretation of the Equal Protection Clause's treatment of states' recognition of same sex marriage show contradictory reasoning. By so doing, the high court has raised troubling questions about a new era of legal uncertainty about how any plain language document, from laws to regulations to contracts, can and will be interpreted and enforced.

In an era where the legal establishment is increasingly openly hostile to and contemptuous of asset holders and business owners in general, what does this mean for the average homeowner, the average small business owner and even the regular investor?

Last week's momentous Supreme Court rulings hit many people in the finance and business communities hard in the gut, for reasons having nothing to do with partisan politics or one’s personal beliefs regarding same-sex marriage. The rulings sparked feelings, probably very hard to express, define or articulate, all owing to a sense that something is about to go very, very wrong.

That's because the decisions – King v. Burwell,[1] the ruling reaffirming the Affordable Care Act (the "ACA") released Thursday, and Obergefell v. Hodges,[2] the ruling extending same-sex marriage recognition nationally released Friday -- reaffirm the growing unpredictability of legal interpretations from the nation's highest court. That means that when the law becomes uncertain, when its enforcement becomes dependent on hope instead of the law, the power of the law diminishes and the power of its enforcers grows in inverse and perverse proportion.

The message is implied, and it is chilling.  It is, must be, that laws, and certainly the contracts that govern relations among honest people in commerce, are far more open to reinterpretation that they once would have been.

Whereas not too long ago contracts and statutes would have been interpreted, and enforced, according to the "four corners" of the document (that is, what's contained on the paper and nothing more), rulings from the Supreme Court invite a new level of sophistry from people determined to argue that words are to be accorded meanings that are something different, if not something completely opposite, from those intended by their writers.

Consider Chief Justice John Roberts’ majority opinion in King, where he criticizes the quality of the statutory drafting of the ACA.  He wrote, in relevant part:

“The Affordable Care Act contains more than a few examples of inartful drafting. (To cite just one, the Act creates three separate Section 1563s. See 124 Stat. 270, 911, 912.) Several features of the Act’s passage contributed to that unfortunate reality. Congress wrote key parts of the Act behind closed doors, rather than through “the traditional legislative process.” Cannan, A Legislative History of the Affordable Care Act: How Legislative Procedure Shapes Legislative History, 105 L. Lib. J. 131, 163 (2013). And Congress passed much of the Act using a complicated budgetary procedure known as “reconciliation,” which limited opportunities for debate and amendment, and bypassed the Senate’s normal 60-vote filibuster requirement. Id., at 159–167. As a result, the Act does not reflect the type of care and deliberation that one might expect of such significant legislation. Cf. Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 545 (1947) (describing a cartoon “in which a senator tells his colleagues ‘I admit this new bill is too complicated to understand. We’ll just have to pass it to find out what it means.’”).
King v. Burwell, pp. 14-15 (emphasis added in bold).

As our legal jurisprudence respects and relies on the precedential value of prior court opinions, you can just imagine the fear of the potential for abuse of the precedent this ruling, and this specific passage, carries for the future. Indeed, for Roberts further wrote:

“In this instance, the context and structure of the Act compel us to depart from what would otherwise be the most natural reading of the pertinent statutory phrase.
King v. Burwell, p. 20 (emphasis added in bold).

But then consider that the same Justice Roberts, evaluating Obergefell at the same time as King, reached the opposite conclusion. Consider from his dissent:

“Today, however, the Court takes the extraordinary step of ordering every State to license and recognize same-sex marriage. Many people will rejoice at this decision, and I begrudge none their celebration. But for those who believe in a government of laws, not of men, the majority’s approach is deeply disheartening.”
Obergefell v. Hodges, p. 2 (Roberts, C.J., dissenting)

Roberts continued:

“The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent. The majority expressly disclaims judicial “caution” and omits even a pretense of humility, openly relying on its desire to remake society according to its own “new insight” into the “nature of injustice.” Ante, at 11, 23. As a result, the Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are? “It can be tempting for judges to confuse our own preferences with the requirements of the law. But as this Court has been reminded throughout our history, the Constitution “is made for people of fundamentally differing views.” Lochner v. New York,198 U. S. 45, 76 (1905) (Holmes, J., dissenting). Accordingly, “courts are not concerned with the wisdom or policy of legislation.” Id., at 69 (Harlan, J., dissenting). The majority today neglects that restrained conception of the judicial role.”
Obergefell v. Hodges, p. 3 (Roberts, C.J., dissenting)

Justice Roberts flips the coin, taking one side in King and another in Obergefell.  But such is the nature of decisions made arbitrarily. In so doing, he conveys the alarming implication that no lesser an authority than the Supreme Court shall decide questions of our law by first choosing the outcome, and then working backwards to reach the appropriate patina of legal legitimacy. This is the type of reason which provides ammunition to future would-be abusers of the government’s often-fearsome arsenal of powers.  

In reality, last week's decisions have implications going far beyond the “headline” subject matter of their decisions. They have far more impact on future legal jurisprudence. That is because our legal system is based on and often accords high respect to precedent, meaning prior court rulings.

So when the court rules that a law will be rewritten so it may "work," the finance community should be alarmed. Not because it agrees or doesn't agree with the Affordable Care Act. Rather, because now the confidence that one is obeying the law and can enforce legal rights has been greatly upset.

Think this is an overreaction? Consider that the legal profession is dominated -- run by -- activists who increasingly believe in "economic justice." Such phrases should alarm readers. Simple concepts require no adjectives to modify them, not unless the purpose is to convey the opposite meaning, and so it is with "economic justice." The reality is a legal establishment, now firmly ensconced in the judiciary and among regulators and prosecutors, which is not merely overtly hostile to business in general and "the rich" (read: anyone with assets) in particular, but believes it is now emboldened -- no, empowered -- to go after these sectors with an impunity borne by the delusion that their end justifies any means, and the confidence that their allies will allow them to act unimpeded and their targets have neither the will nor the power to resist. 

In such an environment where hostile actors now have the Supreme Court's green light to erase the plain language of laws, certainly those in contracts will be next.

How far are we from a legal system where the likelihood of getting a contract enforced depends, for all intents and purposes, on one's industry, political contributions or "most favored nation" status. In other words, when does your legal status depend on who you are?

The new sense of the nation being a nation of men, instead of a nation of laws, explains why the public proclamations commending Friday's ruling on same-sex marriage may be more obligatory than sincere, as it is accompanied by a new uncertainty for business. 

Indeed, it is as if the capitalist class consciousness has been raised, to recognize The Dawn Of The End Of Law. And the public celebrations on social media may well be masking a silent dread that dares not be spoken, not in these politically correct times where departure from a shifting, almost undefinable political correctness may mean being targeted with boycotts, or the loss of tenure, or one's contract, or one's job.

The questions now are how the capitalist class will respond. It -- those of us with assets, even if modest amounts -- is mobile, certainly more than the average citizen who is largely tethered to his job, his home, his community, more by immobility from fear of the loss of job, insurance and familiarity than anything else. 

Will this class simply retreat from public life, determined more than ever to make profits and showing its defiance through indifference?

Will the capitalist class publicly wink at the new trends, the new legal paradigm, while privately resolving to avoid any and all encounters with the legal system, the political system and those who would make economic threats at the slightest hint of unorthodoxy?

Legal certainty and the rule of law have always set America's economy apart from the rest of the world's. The new era of unpredictability, save for the predictable animus towards business and asset-holders, simply won't help encourage capital to come here, stay here or be invested here. 

Last week's Supreme Court ruling may make this nation more equal -- that is, more equal with the rest of the world. For Americans, that means several steps backwards. This hidden message is being felt, even if many still find it hard to believe, accept or articulate. 

[1] King v. Burwell, 576 U.S. _____ (2015), available at
[2] Obergefell v. Hodges, 576 U.S. ______ (2015), available at

Wednesday, June 24, 2015

BitLicense Now Official: New York's Bitcoin Regulation -- An Update

New York's Bitlicense is now officially effective today -- June 24, 2015 -- with the official publication of the regulation (see below) in the New York State Register's current edition just released. 

The final version has already been released, and with one change (companies won't have to run to state regulators to get approval for minor changes in their apps or code), it's the same as the second draft version released in late 2014.

I anticipate that companies seeking to comply will be engaged in quite a complex process, and quickly.

Eric Dixon, Esq. is available for consultation or comment to the news media at 917-696-2442.

Sunday, June 14, 2015

Voter Fraud Alert: New Legislation Planned In New Jersey

Democratic state legislators in New Jersey plan to introduce on Monday a new bill called the "Democracy Act" in an effort to combat falling voter turnout. But one provision for automatic voter registration upon receiving a driver's license is an absolute green light for non-citizens getting licenses to vote. 

UPDATED: If you think that fears of immigrants voting, or that same-day voter registration might lead to fraud, are the province of tin-foil-hat-wearing nuts in some Republican-neocon-tea party fantasy, just read these comments and then consider the source: New Jersey State Senator Ronald Rice, a Democrat who represents Newark.
"What I do know from my experience with voter fraud, is that when you have same-day registration, in my city and county, they bus people in," Rice said. "They bus in the dead and they bus in immigrants."
Senator Rice has a valid point. But his comments and concerns illustrate another trend. Election law changes and changes to "make it easier to vote" don't necessarily tip the balance of elections between the parties. They can tip the balance of elections within parties; that means, primary elections. And in most of the nation, where incumbents have "safe" seats in the legislatures or in Congress, the real elections are primary elections.

Moreover, voter registration affects local elections the most. That's because "packing" the rolls affects small races the most. The effect of invalid registrations gets diluted -- theoretically -- over larger areas and larger populations. In addition, these invalid voters will get to register in political parties, giving them an additional chance to affect primary elections.

Those primary elections, incidentally, include the primaries for party county committee and state committee races. Those party office elections are critical. In some states, it's those party committees which set the rules for how presidential delegates are awarded in those states' presidential primaries (winner-take-all versus proportional-awarding-based-on-popular vote).

[Earlier coverage: Here's an earlier report from the Newark Star-Ledger, following up its original story on Sunday, and some Democratic state legislative committee press release. The legislation will be posted when available.]

Returning to the issue of automatic voter registration for new drivers, note that such new drivers would be violating the oath on the voter registration form that they are citizens, but (1) no one is seriously enforcing that, and (2) having a readily-identifiable non-citizen population which can just as readily be identified and prosecuted for, say, false statements against the government (see title 18, United States Code, section 1001) means some conniving government agents can exercise quite a bit of undue power over some easily-threatened people.

After all, the power to prosecute and deprive one of liberty is perhaps the second greatest and most fearsome government power there is. (The first one? The power to send you off to war and likely to die.)

How would that power be misused? Like to "convince" people to vote a certain way, or not vote; you get the point.

In conclusion, I suspect these bills will not achieve their stated objective. (They may achieve their real objective, one no one dares speak of, which is to goose turnout towards certain candidates.) These type of bills often produce little in the way of enhanced turnout. This is because they increase the numbers of voters who are registered. As a result, what do you get?

Lower voter turnout, that's what. That's because turnout -- as a percentage of all registered voters -- will fall when you increase the number of voters who are registered (the denominator), because it's very hard to spark the interest of additional voters beyond those currently concerned citizens (the numerator). Voters who care, already vote. 

And voters who don't care, will sometimes take some money from unscrupulous campaign operatives to vote this way, vote that way, or otherwise engage in some nefarious act. So maybe you'll have a few more "straw voters," if all you care about is goosing turnout numbers.

Do you think that is a good thing for democracy?

Eric Dixon is a New York corporate lawyer who runs his own practice. He has successfully represented political campaigns for presidential candidates, and for state and local candidates in New York and New Jersey.

Friday, June 12, 2015

The Meaning of Official Documents, When Race And Gender Change On The Fly

Today we learned that the head of a Spokane, Washington NAACP chapter had a birth certificate identifying her as white, but she nonetheless identified as African-American. 

The legal issue is not what race or gender these people are. It is the meaning and purpose of the government documents issued. 

These documents are identification documents. They are issued so that the authorities -- and increasingly, any merchant performing a transaction -- can identify or verify the identity of the person. Yet other documents like birth certificates are meant to convey and report information about a person at birth -- and that means if someone was born male, the certificate should always read male even if the person undergoes gender reassignment surgery years later. Because the person was a male at birth. And because government documents are supposed to report objective facts -- even if unwanted -- instead of someone's fantasy or desire.

This is why driver's licenses report descriptive information on a person's name, date of birth, race, approximate weight, hair and eye color. It is an attempt to make it easier to identify and verify someone presenting the document, on the basis of relatively objective (although obscurable) data.

If present-day identification is the question, then matters as to current gender and race are raised. This is where Caitlyn Jenner (formerly the 1976 Summer Olympics Men's Decathlon Gold Medalist known as Bruce) presents the question of fact as to what gender she currently is. This is entirely separate from the question of what gender she would previously have wanted to be, or what gender "she" in fact was when "he" actually competed in the 1976 Montreal Summer Olympic Games.

Some people circulated a petition -- quickly rejected -- to remove Jenner's Gold Medal on the grounds of gender fraud. Interestingly, current Olympians undergo rigorous drug and genetic testing to weed out athletes who may be "more male" from the female competitors. (See this 2012 Time piece explaining the practice.)

In short, government documents are intended and must be kept intended for data reporting purposes. Self-esteem or image issues are not grounds for the alteration of objective data. 

Chaos: Ten Things To Remember When The Rule of Law Ends

No legal blog is complete without addressing what you must do, when the Rule of Law ends. Call it The End of Law. No matter the jurisdiction, no matter the cause, the question and challenge are the same: What do you do?

Assuming your loved ones are safe and secure, immediate physical survival has been achieved, but not guaranteed for long. The breakdown of civic order and The Rule of Law means that every assumption you have about civilization must go out the window. The benefits of post-modern civilization, the presence and concern of law enforcement, fire departments and paramedics, quickly vanish as those first responders tend to securing the safety of themselves and their own families. In an Anything Goes world, everything changes. So here's a quick checklist of items and issues to remember.

First, immediate physical safety must be assured in order to have both immediate and prolonged survival. I'm talking about staying alive. Whether it's shelter from life-threatening natural disaster or man-made chaos, you need a barrier between you and the danger. 

Second, depending on the situation, you'll need transport to a safer (you hope) place if your immediate location is neither secure nor tenable long-term. This requires first answering whether you can get out of your present location. Do you have a vehicle, and if so, how much fuel do you have right now? Then you have to think of your destination, and assess your chances of actually getting there at all. Fleeing a somewhat secure location in the hope of an assuredly-safe replacement carries the downside of getting exposed to mortal dangers. Now is a good time to ask: Do you have weapons? Do you know how to use them? You will have to assess your resources, and the odds of success against the risk of perishing.

In the case of a total breakdown of civilization, the benefits and conveniences of location in civilization are cruelly reversed. Cities become high-risk zones from which escape may become impossible and in which access to anything else needed for long-term survival may be very difficult. While needed staples may be present, the problem is large hordes of competitors. You'll have two problems: Getting what you need, and fighting off attackers who may easily seek to kill you for a tin of sardines. Remember this if you're thinking of staying in an urban area, or leaving a safe countryside for "the city" in search of something you think you need.

Notice what I have yet to mention: food, water, medicine. Those are somewhat longer-term concerns. Your ability to do without them will vary based on environmental and personal health conditions, and indeed they will become primary concerns soon, but only after immediate safety and survival have been achieved. 

Water becomes the first non-immediate concern once your immediate safety is assured. Is the water safe? You may not have the option to boil it. Drinking non-potable water carries numerous risks, but so does the risk of dying from thirst. If you have bleach, you can use that to disinfect water. The Environmental Protection Agency recommends six drops of bleach per gallon of water. 

Once you can turn to food, when you can pursue it, and to the extent you even have a choice, prioritize food with respect to four considerations: protein, perishability, vitamins and portability. Dairy and refrigerated products will spoil very quickly if they haven't already gone bad. Fruits and vegetables can also rapidly spoil but I would take them for their nutrients. Given their bulk relative to their nutrition, I would consume them quickly rather than store them. Other items, like nuts, pack more nutrition (and protein) for their size, and are a much better bet to store and carry. 

Medicine may be the toughest item to secure. Pharmacies and doctors will not be available and it is likely that pharmacies and drugstores will be a favorite target of looters. There is sure to be a black market for these and any commodity. Just remember: In The Age Of The End of Law, there won't be any consumer watchdog to turn to for help. It will be the ultimate in caveat emptor -- buyer beware. 

Once you can worry about amassing these basic resources, the questions become where to get them, and how to get them. Can you acquire them within your safe location or must you find them outside? In The Age Of The End of Law, institutions like banks and conveniences like ATM and even electricity may be functionally obsolete. Money, credit cards and even Bitcoin may be totally worthless under such dystopian conditions. The electronic devices of the Information Era will become the newest antiques, useless except as paperweights once the power shuts off and stays off. You may be reduced quickly to bartering physical commodities to get what you need, assuming it's even offered. You may be scavenging for the basics without any assurance of their quality or safety. 

Beyond that, start thinking about getting candles, matches, batteries and clothes. Candles provide light and some minimal warmth. In a winter scenario you may be in darkness up to 15-16 hours a day even in the middle latitudes. Batteries will power flashlights and may be the last resort for power. Look for a transistor radio. Anything digital may not work. The older the product the more likely it will work (what a paradox). As for clothes, your emphasis should be on two things: mobility, and protection from the elements. You may be reduced to walking indefinitely and over rough terrain or dangerous ruins. The natural elements may be as varied as anything found on our planet.

Start looking for chemicals and substances with multiple uses. That jar of bleach may have been very inexpensive in the market a few weeks ago; now it may be an indispensable disinfectant. Iodine is similarly very useful. And salt is an excellent food preservative and solvent. 

Finally, surviving in The End of Law requires some extreme changes to your way of thinking. In fact, thinking may be a fatal flaw. You may not have time to think, only to act and react. Instinct, not necessarily intelligence, may be critical.

Understand your primary -- maybe your only -- objective is simple. Survival is simple: Just don't die. So your mindset is just as simple. Act quickly, decisively and methodically. Emotions will only impede and delay you. Either could be disastrous. Catastrophes require an enhanced emotional intelligence that not everyone has. And you know what? Many people die in emergencies, disasters, war zones and the like, because of horrible judgment or an incapacity to respond properly to mortal dangers. 

Meet the challenge, or meet your Maker.  Let go of any assumptions about the past, how things should be and anything beyond the immediate horizon.  Survival is a here and now proposition.  And the more equipped you are to make the right judgments and act on them, the better your chances.

Eric Dixon is a veteran New York lawyer who describes himself as being in the business of judgment. 

Tuesday, June 9, 2015

Is A So-Called Nonprofit Group's Documents Public Records?

A client of mine is bringing a new and potentially groundbreaking lawsuit in state court in New Jersey, seeking production of certain documents from a nonprofit organization under the state's Open Public Records Act. 

More on that lawsuit, and an ongoing effort to reform the open-government laws in New Jersey, in this article from the Record of Hackensack, NJ. 

Saturday, June 6, 2015

Low Voter Turnout As A Good Thing

The accepted and common wisdom is that voter apathy, aka low voter turnout in elections, is really bad and bad for democracy and undermines our elections. Or whatever today's claim is.

These concerns are the stated reasons behind some "voting rights" litigation supposedly being funded by George Soros reported in today's New York Times. 

But here's where almost all of the commentary and "solutions" go wrong. And the party of the people talking doesn't matter; the Republicans are as equally clueless as the Democrats.

Right now, the most concerned citizens do vote. They vote regularly and consistently, in general elections but most particularly in primary elections. They are what is called in the business the "prime" voters or the "super primes." They're the ones campaigns concentrate fundraising and literature on. 

Who doesn't vote? The unconcerned, the uninformed (that being a function of being unconcerned), the indifferent and, often, the less intelligent.

There are few to no barriers to voting, beyond those of physical maladies where voters may be too sick to get out of their houses or medical facilities to vote. Here, increasing absentee or early voting is helping bring the ballots to the voters.

But all the effort on getting more voter turnout might either be a tired mantra by people who don't know what else to say -- having identified a problem but not a solution -- or an objective that is fraught with unintended consequences.

Do we as a society really want the uninformed, callously indifferent or malicious to be exercising their constitutional voting right as much, so they -- and not the informed, super prime voters of either party -- determine the outcome of elections? 

And before you think this is partisan, consider this: The same concerns hold true for so-called "closed" party primaries in states where you must register in advance of a party primary to "enroll" in that party. With primaries, do you want the weakest, least concerned voters outweighing the votes of the less numerous but much "more committed" party members?

These are among the questions to consider, on a policy basis, before accepting as an article of faith that declining voter turnout in elections is a "problem" and that increasing voter turnout is a desirable objective. 

Wednesday, June 3, 2015

Bitlicense Goes Live: Final Form Released

The Bitcoin community has experienced its first D-Day.

New York regulators just released the final version of "BitLicense" earlier today. The Bitcoin and digital currency community will be divided into two camps on this.

First, if you view Bitcoin as a technology and are limited to developing the underlying technology (what's called blockchain technology), then you do not need to apply for and receive regulatory clearance with Bitlicense. As I remarked months ago, the revised regulation adopted this change in perhaps the most material and meaningful progress made during the entire review and comment process.

Second, if you are in the business of exchanging digital currencies for one another, or with conventional government issued currency, you are probably covered and need approval.

Third, if you are in the business of holding any customer assets or funds in the form of a digital currency, you are probably covered and also need approval.

Since Bitlicense has an expansive long-arm definition of the term "New York person" anyone in a covered activity will be affected even if they do not operate in New York.

As a result, businesses in these sectors need to make immediate plans to attempt to apply and comply, or clearly withdraw from any covered activity touching New York State.

While the foregoing is not intended to be legal advice, I do provide legal and compliance advice (for a fee to paying clients) and time is already ticking.

I do believe that young companies desiring to have access to and compete for business in the lucrative New York market may find it worthwhile to apply for the Bitlicense.

Eric Dixon is a New York lawyer who works extensively with blockchain and cryptocurrency innovators and startups.

Monday, June 1, 2015

The One Reason Why You Must Stop Working For Anyone Else

In this third installment of an ongoing series, I explore what people face if they don't consider going off and starting their own business.

As the stick is a far more effective (if less desired) teacher than the carrot, I'll cut to the chase. You need to realize how limited, and likely how miserable, your entire life will be if you don't consider this option.

Of course, most people don't cross this bridge, and many people have no business trying. The economy needs employees, followers, loyal consumers. I'm just saying that the opinion leaders, the movers and shakers, turned their backs on the path followed by most everyone else. It depends on what you want.

If you want to control your life, to be able to decide what to do, when to do it and with whom to do it, you have to be some sort of entrepreneur. That does not mean being fabulously wealthy, unless you define wealth in a non-monetary sense, that being measured simply as the freedom from control by someone else. 

But here is the sticking point. To become and remain an employee, you must always be willing to be controlled. And as control requires dependence, because dependence enhances control, you will quickly end up in a quicksand where your life is Groundhog Day.

And that, my friends, is most often the best case scenario! 

Things can become much worse. Your agreeability to being controlled, exploited and mistreated is no guarantee of anything! Being controlled is necessary, but it is not sufficient. You will remain vulnerable to every risk an employee takes, of being harassed, demoted or fired, of having your career growth stunted or hit a dead-end. But your upside is, well, there is no upside.

It's all at the discretion of your employer. And in an age where there are more and more highly intelligent, highly educated, underpaid and desperate workers willing to run through walls (and cut corners, sadly), that control is likely to morph into attempts to manipulate, deceive and coerce you into unethical and even illegal behavior. 

So if you dread a future of being the subservient subject of another, subject to the whims and absolute depravity of another -- your boss, your husband even -- what do you do? 

And if you otherwise don't fear the above, what about dreading looking back at your mediocre, unremarkable life, when you had all sorts of potential and wasted it?

And what do you do now?

Your options never actually decline with age. What declines is the ability to get opportunities handed to you by others. It just becomes harder to get a "job" which is the illusion of the easy way to get experience.

Becoming a small business owner is not easy. But making it work will allow you the true freedom of being able to follow your dreams, your conscience and even the law. It is the only way to have real independence and true freedom from the control by another.

Hope For Better Policy In The Age Of The End of Law

Many believe that bad policy results from bad information or a lack of information.  But what about the human dimension? What if the people making the decisions -- their values and priorities -- are the problem?

That intellectual candor and courage leads one to speculate that bad policy results not from a "lack of understanding," or poor or incomplete information, but rather from some very deliberate choices in policy, values and priorities. 

In short, many economic problems would not lie at the feet of misunderstandings. Rather, they might well be the result -- and intended as such -- of very deliberate, conscious choices.

Today, far too often, we see how cronyism affects the enforcement of laws, the enactment of regulations and the allocation of opportunities by those in positions to choose. 

When "who you know" begins to trump the rule of law, when connections trump legality, and when one's ability to survive (never mind, succeed) requires the willingness and ability to assert and defend one's rights, constitutional or contractual, then one can surmise we are in The Age of The End of Law.