Monthly Archives: November 2011

Faux Economy

Well, the big news today is that the stock market “surged”, improbably, with the Dow taking out 12,000.

This is on the heels of the Federal Reserve doing what it does, which is financing the financiers.  They’re giving away free money to People Who Matter, who will immediately plunge it into the stock market casino to give the appearance of financial health.  And of course take their healthy cut.

Meanwhile, American Airlines goes bankrupt.  Perfect.  A real company, with real airplanes, shuttling real passengers hither and yon.  But they’ve had it.  Bought the farm.

They should have mortgaged it and hedged their bet with a credit default swap.  Passengers?  Who cares about them?

You can’t make this stuff up.  To understand this system is to loathe it; you wind up pouring cold water on a comatose drunk who doesn’t want to wake up.  You’re only helping him not to slip further away and die, but he hates you for it.

Here’s the reality:  the one day goosing of the casino represents the spending of the entire Federal Reserve free money eruption.  There’s nothing left.  Nothing was produced, American Airlines is still bankrupt, but tomorrow will be very much like today – instead of different, which it might have otherwise been.

Feel better?  If you’re in the 1% you should; if you’re in the 99%, well, not so much.  Change is scary, up and down the line.  But the 99% have less and less to fear from “different”, and the Fed has no answer for them on that score.  It’s an impasse:  you can’t sell stability to people who want to shake things up.

The Dow hitting 12,000 is impressive.  So is American Airlines’ bankruptcy.  One is a real thing, the other is an illusion.  You can’t eat a credit default swap.

We’re in more trouble than I thought.  And sooner, too.


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Matt Taibbi

Since my writing has, frankly, sucked lately, I thought I’d just check in with Taibbi, who seems to be doing much better.

This is a good article.  And this.  And this.  And this.

When the dust settles I’m hoping my work here on the blog will improve.  In the meantime I’ll keep at it.  Plugging away is my tendency.


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What is it with Japan and elaborate excursions into self destruction?

The country that gave the world Seppuku and the kamikaze is apparently now engaged in demographic suicide.

The statistics are sobering and, from an historical perspective, quite bizarre.  What could be more unnatural than young people of child bearing age in such large numbers not pairing off and having children?

It’s inexplicable.

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Appellate Division, 4th Department

We’re familiar with that court.

Greenfield takes them to task today, and rightly so.  But he also beats up on another lawyer, whose “screw up” led to the bad result on appeal.

Except that it didn’t, and everyone knows it.

The quibble is that the defendant’s lawyer didn’t object to an improper question by the prosecutor at the trial.  That left the issue “unpreserved” for appellate review, which was duly noted by the 4th department, which then declined to exercise its “discretion” to review the issue anyway.

But if the issue had been properly preserved, then the 4th department would have either:  a) simply misrepresented the record or not mentioned it at all, two of their favorite practices; or b) “reviewed” the issue but found any error “harmless” because the proof of the defendant’s guilt was “overwhelming”, a misnomer of a standard that is actually satisfied by the thinnest of proof.

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Almost Ten Years

That’s how long both a major sports network – ESPN – and police had a smoking gun tape of a conversation between the wife of Syracuse University Assistant Basketball coach Bernie Fine and one of his sexual abuse victims.

And in all that time they did nothing.

Not until a similar scandal erupted at Penn State.  Now, apparently, it’s time to “do something”.

When the Penn State scandal took off there was much discussion about those who knew and did nothing, much of it focusing harshly on an assistant coach named McQueary, who was almost universally faulted for “not doing enough” when he allegedly observed assistant coach Jerry Sandusky raping a 10 year old boy in the campus showers.  Specifically, many said McQueary should have gone right to police and by-passed head coach Joe Paterno if necessary.

Yet McQueary didn’t have anything on tape.  He didn’t have a smoking gun.  What if not only Sandusky but his alleged victim denied the allegations?  No matter what McQueary saw, there’s no guarantee something like that wouldn’t have happened.

That would be the end of McQueary’s career, right?  And maybe worse.

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Greek Austerity – At The Hands Of Fascists

This is an interesting take on things.  Apparently well documented, too.

Funny how this kind of thing always gets by the MSM.

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Lawyer Love

It may be a quibble over word definitions more than anything else, but it’s still a quibble.  At least a quibble.  Maybe more.

Scott Greenfield is drawing lines.  A lawyer provides “excellent representation”, not love.  As if the two are mutually exclusive.

First, the definitional problem may dispose of a disagreement that is apparent only, or at least primarily.  If by “love” one means only emotional, squishy and sub-rational or even irrational feelings of affection that obscure reason, then the point can be readily conceded.  It would indeed be self-indulgent and wrong for a lawyer to conduct an attorney-client relationship on such a basis, and it would most likely ill-serve the client, certainly to the extent that objectivity and reason are compromised.

But one problem is, this is an impoverished definition.  It is a childish conception of love.

To a grown up, love is not about emotions but about the will, the willingness to act.  To spend oneself on behalf of another:  that is love in the grown up sense.

It should be as obvious that love in the latter sense is not only proper but even  required in the attorney client relationship as it is that “love” in the former childish sense is a mistake, even a grave mistake.  Spending oneself on behalf of a client is pretty close to the essence of the attorney client relationship.  To call that wrong is turning things on their head.

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Judicial Plagiarism?

Sad malpractice case involving a brain damaged child, but an appellate court in Canada seems worried that the trial judge, ruling in favor of the Plaintiff, adopted most of its opinion verbatim from the Plaintiff’s submissions.  Worried enough that it reversed.

Now the Supreme Court of Canada is going to weigh in.

Most trial and appellate lawyers have probably seen judicial opinions which seem to substantially incorporate the submissions of the party the court sided with, although from the description this case might seem excessive in that regard.  But this is not regarded a “plagiarism” by a judge, and it hardly seems a basis for reversal, having nothing to do with the merits of the case.



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The Crisis

Is it about money and finances, or the Rule of Law?  We’ve asked that question a lot around here.

Now Kenneth Anderson over at Volokh is asking it, in reference to the ongoing debacle in Europe:

In that case law, in the sense of legally binding governance arrangements, is epiphenomenal on political contingency which, in this case, is contingent upon relations with the financial markets, which is to say, upon the willingness of lenders to continue to lend and roll over debt.

“Epiphenomenal” in this context means “secondary”, or of lesser importance.  Anderson may well be describing the hierarchical reality, but I wonder if he realizes just what he is saying:  the law takes a back seat to politics and finance.  No wonder a lot of people have taken to the streets and one of their demands is a return to the “rule of law”, which they – perhaps unlike Anderson – see as being a big problem.

He goes on:

As we marxists like to say, money is never “mere.”  Of course money, banking, credit, etc., are at the heart of the governance project, because they structure the material — and, come to it, the moral and spiritual — conditions of the rest of it.

There aren’t too many self-described “marxists” left, even without the capital ‘M’.  It’s a little surprising to me to find one at Volokh.

The “governance project”?  I studiously avoided political science as an undergrad, thinking it to be an illegitimate subject.  But it was a popular one, even then.  Apparently the term “governance project” is one of the poli-sci academic buzzwords that gets bandied about at wine & cheese conferences at prestigious universities around the world.

I’ll agree that “…money, banking, credit, etc. are at the heart of the governance project”, at least as that project is currently conducted – by one percenters over everyone else.  Professor Anderson is describing, whether intentionally or not, an oligarchy with central banks at its very core, where the ostensibly governing democratic and republican institutions – the legislatures, the courts – fade into insignificance in terms of their influence on the real “governance project”.  In this context, the highly undemocratic installations of Monti in Italy and Papademos in Greece make perfect sense.  The oligarchical nature of our global polity is now very much out in the open.  But will people put up with it?

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A Few Random Thoughts

1.  Cause and Effect:  As I noted yesterday, groups of people under the “occupy” umbrella are beginning to resist evictions subsequent to foreclosures on people’s homes.  There are implications here for “property” rights, but again the real threat to property rights greatly predates the recent civil unrest.  For a long time people have thought of themselves as “homeowners”, even though by law another entity – a lender – had a superior right to their property, because the home was mortgaged.  All sorts of government and lending institutions encouraged this misconception because it encouraged borrowing and lending to buy homes, and the primary beneficiaries of this practice were the political and financial classes.

People’s homes were turned into interest generating machines.  This is profoundly morally wrong, and everyone involved is to blame.  Which means everyone.

2.  Mindlessly siding with the police is not “conservative”.  It’s just mindless.

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Occupy Foreclosure – Standoff in Minneapolis

A few articles on the Occupy thing have suggested that the “direct action” is shifting to blocking evictions from foreclosed homes.  Here is such an operation in Minneapolis:

They’ve got a lot of snow there already, don’t they?

Anyway, this article claims that such direct action is “going viral”, now that occupiers have been removed from the various downtown tent cities.

There are, of course, property rights involved.  Many occupiers, it seems, harbor utopian visions of a world without property rights; but without them,  how does the occupy-defended dispossessed owner have any rights?

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Pepper-Spray Cop…

works his way through art history.


Also, readers may wish to check out “Appellatesquawk”, which I just added to the blogroll.  It’s hilarious stuff, though I doubt any but recently practicing litigators would appreciate the humor.

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Super-Committee Fail (Of Course)(Update)

I don’t even know who’s on it other than John Kyl, one of those been around for a long time so you know his name Senators.

It doesn’t matter.  What they are attempting is impossible, so there’s no way it can succeed.  Now it’s all over but the crying, and I guess some effort will be made to explain themselves.

They’re trying to determine whose ox is going to be gored, and no one is offering up an ox.  And why should they?  This is Washington.  Offering to take less government money is like volunteering to have your own throat slit.  Fugeddaboutit.

Just in human terms, picking and choosing who is going to win and who is going to lose will do nothing but generate increasingly bitter conflict.  No one will agree to be the loser.

Accordingly, government cannot be “cut”; but it can be changed.

The first step towards that goal is a jubilee, through some kind of constitutional amendment.  And even there, you are picking winners and losers.

But it’s politically do-able.  Know why?  Because the winners are the 99%, and the losers are the 1%, although even the 1% don’t really “lose”.

See, that Occupy thing has been good for something:  economy of expression.

Update:  Here’s another good expression:  Apres moi, le deluge.  Reputedly and prophetically uttered by Louis XV.  The author of the piece – David Gergen, a Washington hanger on for what seems like centuries – at least brings some historical perspective to the table.  French revolution metaphors will be all the rage soon.

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Coup d’etat

Speaking of terms that are rarely applied contemporaneously with the relevant events, but often affixed by consensus after the fact with the benefit of hindsight, it’s not an unfair characterization of the recent installations of Papademos in Greece and Super Mario Monti in Italy.

Meanwhile, it’s always fun to check in on Max Keiser.  Beginning at about the 6:19 mark, he appears to be advocating the same thing as me, but he’s months later of course:


You can’t blame him for not coming up with the constitutional amendment idea.  After all, he’s not a lawyer.


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Mercenaries (Update)

The term doesn’t fit precisely, but it’s not wholly inaccurate either.

This incident is making its way around the web and around the world:

The “police officer” pepper spraying the kids is named John Pike.  He makes about $110,000 per year.

An assistant professor named Nathan Brown called for the Chancellor of the university to resign in the wake of the police conduct.  He makes about $60,000 per year.

This is somewhat disturbingly revealing about the economics of the situation.


Update:  This should be the caption of the various photos and videos noted here, from a speech by NY Lt. Governor Robert Duffy at a recent awards ceremony for police valor:

“There is nothing more noble, and nothing more sacred than the opportunity to serve and protect as an officer of the law,” said Duffy in a news release. “The men and women of law enforcement represent the best of our humanity. They are the pillars of our community and we must ensure that a show of our appreciation is not limited to occasions such as this, but that every day we honor their service and applaud their courage.”



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