The Fed (Updated)

It’s basically on track to own a lot of American real estate. Residential real estate. Peoples’ homes.

As has been the case for more than a decade now, we are in uncharted monetary territory. We’ve been musing about it all along, such as here (from six years ago).

Interest rates continue to languish in the lower bound range long after they should have risen, long after everyone predicted they would except, possibly – as our 2014 post demonstrates – we here at LoS.

We get no credit but we try, and keep trying, laboring in obscurity with a little analysis here and there.

Regarding the simple fact that the federal government, through the Fed, now has a superior interest in many of the homes Americans believe they themselves own, we are not alarmed because it has been that way for a long time. Essentially, American “home ownership” has been a disguised form of serfdom, easily since WWII and arguably before that.

We have offered a couple of solutions, the simplest one here.

But it’s a pipe dream.

Collectively, history shows over and over that human beings are not capable of self-government no matter how much they delude themselves into believing otherwise. “Democracies” are never that, and we may as well admit that monarchy is the natural and therefore best form of government.

A monarchy could elevate its people out of serfdom far more easily than a “democracy” and thus is far more likely to do so. Not to mention that here we are in 2020 and our supposed democracy in the US has offered its people as an electoral choice for their “leader” two men who are plainly unsuited to the position. Occasionally in a monarchy you wind up with a child monarch; but at least there is hope that the child will one day be capable.

Ugh.

Update: The monetary world just keeps getting more bizarre.

David Graeber, RIP

Apparently he died yesterday in Venice at the age of 59.

We and Dr. Graeber shared unorthodox views on debt, and ran into each other during the “Occupy Wall Street” phenomenon of the early 2010’s. Graeber, of course, was a highly credentialed academic; we are merely a lawyer. So, whereas Dr. Graeber’s thoughts were very influential in the halls of officialdom ours have never received so much as a polite mention, even when we beat the entire world to the punch on the “section 4 of the 14th amendment” issue, to the extent it ever really was an issue.

But this sounds like jealousy. An ugly digression under the circumstances, yet at the same time we are pleased to recall that Dr. Graeber did at one point comment on one of our posts, wishing us well in our endeavors.

We appreciated that at the time. We appreciate it now. And we are sorry that Dr. Graeber has passed. He was a unique, thoughtful, principled and fearless thinker who managed to thrive in academia. That’s no mean feat.

Our heartfelt condolences to his friends and family.

National Security?

We don’t know why it has become such a Thing in DC that pandemics have to be a matter of national security. But that it has, in fact, become a Thing is undeniable, the spin machine is working overtime to convince us:

Swamp dweller grills swamp dweller wannabe about pandemics being a matter of “national security”

The point of posting the vid is not to embarrass Mr. Ratcliffe – although it could certainly be said that his performance here is pretty embarrassing – but rather to draw our readers’ (all three of them!) attention to the nature of the opening question, which posits that “of course” pandemics are matters of “national security”.

Can an argument be made that pandemics are a matter of national security? Sure. Our military personnel could become ill and temporarily unable to perform their duties, leaving us vulnerable to attack. That’s one argument.

Problem is, this sort of argument could be made to put pretty much anything into the “national security” box. Defective manufacture of sunglasses? This could deprive our military personnel of eye protection that might render them temporarily helpless in the defense of the country. It’s a national security issue. Of course! Look at the vid! Senator Harris says “of course”.

Thesis: this is basically an effort enhance the DC importance – “importance” in DC meaning much power, much money, much visibility – of bureaucrats in the health related fields, who apparently have not historically had sufficient DC importance. Why them, and why now?

Could have something to do with increasing skepticism regarding our bloated “health care system” and the availability, not to say the popularity, of “alternative medicine”. There’s a a fairly intense swamp effort afoot to silence Joseph Mercola, for example. Whatever your views on alternative practitioners like him, it seems he should be able to ply his trade and people can make their own decisions.

Some people see nothing at all wrong with lobbying the government to benefit themselves and their industry. Defense contractors, for instance. There are a lot of pitfalls leading to corruption in such a scenario, of course, but the players tell themselves that overall, they are acting to benefit others.

Because “national security”.

National security mojo is the currency of choice in DC. Maybe this is what the COVID-19 reaction is all about.

Ugh.

Mouthpieces Of The Ruling Class….

…..writing in the Wall Street Journal, confirm our previous post, where we were incorrect about the Biden VP pick but – we gather from the WSJ article – peculiarly perceptive about the nature of this pandemic thing.

It is not beyond the realm of possibility that the swamp, recognizing in their bones, as it were, the decline of the US military and relative diminution of funding for the MIC going forward, has arrived at the conclusion – again, as if by instinct – that we must have new dragons to slay, and they have come up with …. viruses.

The “new normal” is going to be more of the same, but with a different face. A masked face, of course.

Ugh.

Revenge Of The Swamp Creatures

Okay, here is a plausible scenario that’s kind of been lurking out there since this COVID thing started. 

You may have heard here and there that President Trump disbanded the “pandemic response team”. Apparently such a team was established by the Obama administration – in 2015.  Pretty much a brand new thing. Surprisingly, it was not housed in the CDC or the HHS; it was actually housed in…the NSC!  So the “disbanding”, or whatever you want to call it, happens in 2018.

And then of course we have the massive pandemic panic in 2019-2020.

The plausible scenario, then, because of the way swamp dwellers think and act – and especially those associated with the intelligence agencies like the NSC – is “We’ll show them how important we are to national security!”, national security being beyond debate or budgetary restraints once it is invoked.  

Another thing that would be in play once you create a pandemic response team in the NSC is the unholy marriage between the NSC and ……the pharmaceutical industry, which relationship now takes on the character of the defense contractor type companies like Raytheon and McDonnell Douglas, a constant and ever expanding government apparatus commanding ever more funding, contracts and positions of power and prestige for people like Fauci.  It’s like a new iteration of the MIC.  Tantalizing for swamp dwellers!  Some rogue president had better not touch it!! 

But then he did.

In other words, this whole COVID thing is an entirely plausible (although its scope and audacity is pretty unusual) swamp reaction to actual cuts.  Remember how “cuts” in swamp culture refer only to decreases in the rate of increase, and that actual cuts in anything are unthinkable and drive the swamp crazy?

I’m afraid it may be every bit as stupid, petty and basically subversive as that. 

Another tell: Susan Rice. She’s an impressive person in a lot of ways, but she is also…..a swamp dweller on steroids. She could easily take the phrase “Drain the Swamp” as the most pointed personal attack imaginable.

She actually established the “pandemic response team” within the NSC when she was the director.

Now she is certain to be Biden’s running mate.

Got the message, American electorate? This is what happens when you cross the swamp and elect a president the swamp doesn’t approve of.

The COVID

We haven’t really dealt with the worldwide development over here on the blog. Maybe that’s because it’s not really lawyer type stuff, but then again it could be. In any event, we have commented elsewhere and for what it is worth we reproduce some of our thoughts here. We provide a link to what appears to us to be solid data from the CDC as well, so our readers – all three of them! – can make up their own minds if they are so inclined, which we hope they are:

It seems like the NYT is taking some firm data and spinning, but it’s interesting that they are focusing on the same “deaths from all causes” data. The CDC has these two tables, one showing week by week deaths nationwide that clearly show a noticeable increase from “expected” for some weeks starting in April. The second table shows deaths by location, which clearly shows some areas experiencing more deaths while others are even less than “expected”. The results in the second table are more ambiguous and raise some questions about why, outside NYC which is a national anomaly, there is much variation at all. Or come to think of it, there really isn’t that much variation, and not that much in the way of elevated deaths. If any, because the problem I’m seeing with the “data” has to do with “expected” deaths, which is based on only three years of history. Obviously, much, much more data is available to the CDC. They could go back decades if they wanted and adjust for population increase. That might yield a very different number of “expected” deaths, which in turn would paint a very different picture, although even so the picture now is not unambiguously as dire as the NYT article is advancing. You also have all these scare stories from Fauci, et al, about the “extraordinary variety” of symptoms the COVID causes, only to find with a brief google that every single scary unusual symptom has also been attributed to the flu in years past, before all this got so politicized – organ failure, brain damage, lung damage, and on and on – it’s a big world and diseases affect different people in different ways and lo, you can always find some outlier, but the rule is that the flu is like a bad cold for almost everyone and it looks like the COVID is like a bad flu for almost everyone. And it’s hard to make the argument that somehow this particular bug warrants any “public” reaction at all, unless we begin defining “grave public health threat” so loosely that we’ll be facing grave public health threats continuously from now on, and submit all of our interpersonal behaviors in public to the, let’s face it, central committee of public health experts, which raises an issue not of convenience or minor discomfort but something far, far deeper. At least for me it does. But I’ve gone round with you, and…… others on this and in truth I don’t have a comfortable level of certainty either way. As I’ve said, I recognize that there must be a line that gets crossed at some point and then we do indeed have a grave public health threat and we should hand ourselves over to the central committee for some period of time. But we have not identified that line. It’s important to do that, this provides an opportunity to do that but as a nation we’re just bickering about it rather than engaging in systematic, rational thought.

Justice Gorsuch And Sex

We’re going to establish ourselves as real outliers here, but we don’t care. Fearless bloviating on all manner of subjects has been the hallmark of LoS since it began almost 10 years ago!

Let us start by speaking the plainly unspeakable truth that litigation over: who uses what public bathroom; or whether high school girls can be barred from the boys’ football team; or for that matter whether the boy-turned-transgendered girl can run track on the girls’ track team; and all other such sexuality-based-debates-turned-legal-questions-and-lawsuits, is unserious to the point of stupidity and a sinful waste time and attention that could be better turned to the tasks of freeing all the people we have wrongfully imprisoned (and in death penalty cases intend to murder), of compensating injured people, of holding corrupt politicians and CEO’s to account, and a million other actually significant things.

People’s sexuality and how members of this or that sex are treated are not suitable topics for legislation or court proceedings and never were.

The Civil Rights Act of 1964 was about race relations, not feminism or genderism – or whatever these sorts of things are called this morning – and indeed all of these other relations are radically different in kind and do not belong in the US Code at all.

So we here at LoS think there’s really only one effective response to Justice Gorsuch’s invitation to endless stupid litigation opinion in Bostock: amend Title VII and delete the word “sex”, which was the entire basis for his opinion and apparently was only added to the law as a poison pill in the first place.

It makes us incoherent. People discriminate “based on sex” all the time in ways that are not in the least objectionable. The first question asked about any new human being – “Is it a boy or a girl?” – is discrimination based on sex.

Moreover, we at LoS have never understood why civil rights leaders embraced this piggy-backing of feminist concerns onto the far more serious questions of how people treat other people of different races. The latter can legitimately be the subject of laws and litigation without degenerating into self-satire and stupidity. The former cannot.

So this is our outlier opinion of the day: overrule Bostock by amending Title VII to delete the word “sex”.

As An Aside…

Relevant statistics are not kept. Why should we? That would only help the rabble.

But sometimes you can put two and two together from different sources. Most of the time it’s not very good information – and that’s true of what we are about to note here – but then again it’s some indication. Better than nothing, we think.

So the NYPD has an annual budget considerably north of $900 million, and we’ll just round that up to $1 billion per year for simplicity’s sake. Then, according to this article, in seven years New York City paid out $630 million to resolve police misconduct claims.

That works out to 9% of the police budget. And to us, based on what we just wrote the other day, that seems about right. About what we would expect.

But compare and contrast. The information here is not as good because no one is really keeping the information. But in any event looking at the closer to home example of Rochester, New York it seems that with an annual police department budget of $90 million, the city is paying out about $300,000 per year to resolve police misconduct claims.

That works out to less than .4% of the police budget. Not 4%. Point 4%.

Isn’t that interesting? New York City pays out about 25 times more, proportionately, than Rochester does for police misconduct claims. What would explain that?

Also very interesting: Rochester has a population of about 200,000. New York City has a population of about 9 million, 45 times greater than Rochester. Yet the New York City police annual budget is only 10-12 times higher.

Is New York City under-policed? Is Rochester over-policed? We’d be interested to hear opinions.

Suggestion: As the visibility and prominence of the relevant city rises, police accountability increases owing to increased media and official scrutiny. And vice versa.

CORRECTION: Actually, for the City of Rochester it appears the linked article is referring to only two fiscal years, not four calendar years; that is, 2015-16 and 2017-17 is two years. So we have averaged the two years of $909,000 and $392,000 to $650,000 per year contrasted with a police department budget of $90 million and come up with a rate of .7%, still and proportionately about 1/13th of the NYC payout. We’re still looking for an explanation. RPD is more than 10 times better than NYPD at avoiding misconduct that injures someone? That seems doubtful.

What It Means

Yes, we should really flesh out the numbers a bit more. It’s hard to convey just how dramatic they are. It’s like they defy description, pointing to a situation that is breathtakingly disingenuous when it isn’t simply incoherent.

So the system’s statistical verdict is that actionable constitutional violations occur only .25% of the time in day to day law enforcement. What does that actually mean?

If you got a grade in a course you took in school of 90%, that’s a good grade. Your parents would be pleased and you would be rightly regarded as a successful student, at least for that particular course.

If law enforcement in the United States achieved the same grade in avoiding any actionable constitutional violations or wrongdoing in the course of enforcing the law – that is, 90% of the time – they, and we, would be doing quite well. A pretty darn good job. There’d be room for improvement, of course, but a pat on the back would not be undeserved.

Yet if that were the state of affairs that our justice system actually recognized as a matter of statistics, it would be recognizing violations at a rate 40 times higher than it currently does.

Let that sink in.

The New York Times – really, really late to this party (see our previous post) but better late than never, we surmise – sums it all up pretty well by quoting what they describe as a “conservative” jurist:

An Escherian Stairwell. Heads defendants win, tails plaintiffs lose.

What would it cost to do a better job, money wise? Probably very little, in the grand scheme of things.

Correcting the situation to a point where it is remotely reflective of reality – that is, a violation rate of 10% as opposed to the currently recognized but preposterous .25% – will raise the amount of money collectively awarded to Plaintiffs from the currently paltry $600 million to about $20 billion.

That is still so very cheap. About the amount that the federal government spends on IT upgrades every year.

Let us – we, who have actually tried a case or two to juries representing “disfavored litigants” (and we now have official cover for using that phrase, as we just noted) – make another important point. You know those tiny number of cases falling into the .25% that are actually successful? They were all extremely hard won. People who have never done it have no idea.*

Put another way, there was a lot of work involved. Admittedly, that work extends to the attorneys that defended the cases, the judges who sat on them, and to a lesser extent the juries that heard them. But none of these remotely compares to the work required of the attorneys representing the Plaintiffs, not to mention the dedication and devotion, if you can grasp what we are alluding to there, which unless you have done it yourself you probably can’t.

So what’s the point, then? There’s a large element of sloth involved in the current state of affairs. Mental and moral sloth. And getting that .25% figure up into a range where it is more reflective of reality will take a great deal more lawyer work.

And as an aside, lawyers like us are spent. It is younger lawyers who will have to do the work.

And there’s a sub-point. To maintain the disconnect between that .25% figure and reality has required more than sloth; it has required dishonesty. Everyone really, in their heart of hearts, knows how phony that number and the institutions that generate it are. That awareness is reflected in the line from the conservative judge we just quoted.

So there’s not only hard work involved in correcting things; there’s something else that in some ways is even harder. We’re going to have to admit what failures we have been, how badly we have served our country, our people, and the cause of justice we swore to uphold. We will have to make amends. We – lawyers, we mean – will have to atone.

The journey back to honesty and truth begins with telling the truth about ourselves. And it’s not a pretty truth.

_________________________________________________

*And the set of “people who have never done it” includes every single justice on the SCOTUS, almost every judge on federal appeals courts, almost every lawyer who argues before those courts, and at this point probably the majority of judges and lawyers regularly practicing in state appeals courts, because at this stage of our collective professional development lawyers in state courts just mindlessly imitate what they observe in federal courts, which for no reason we can discern are regarded as being greatly superior and more prestigious.

As we sometimes describe the situation to friends who have some familiarity with the Navy (as we do) it’s analogous to the Navy having a Chief of Naval Operations and Admiralty that have never been to sea. It’s ludicrous.

But that’s another post for another time.

The Net Result

We still lean libertarian here at LoS.  Lean.

Because ultimately the dream of a world without government is utopian and silly.  The same actually applies to “democracy”, which is why we figure – in the end – monarchy.  But that’s a long discussion.

No, this morning we are simply pondering the whole coronavirus thing, and how it all pans out in the longer term.  What have we learned?  Indeed, what have we done?

There is irrational fear, and then there is rational fear.  Let’s stipulate at the outset that when people with the relevant background and training who are in a position to know tell us that we are threatened with a dangerous pandemic the fear of that pandemic is rational.  And our collective reaction to that information appears to be measured and rational as well.  Which is to say, other than some hoarding early on there has been remarkably little behavior that could fairly be called “panic”.  People have adjusted to a dramatically changed day to day reality without undue complaint or much dissent.  People – ourselves included – comply with directives from the government against which we would normally chafe.  We do this owing to our rational fear.

And this may be the key to understanding the net result of all this, though we hasten to add that we probably won’t have enough perspective to be confident in our conclusions until the crisis portion of this strange event is past:  as in a war, in our rational fear we have looked to our government to protect us from the threat.  We have collectively granted, at least at this crisis stage, dramatically more power to our government.

We are not the only ones who are less than sanguine about this development.

It wouldn’t be fair to say that the only thing government has done with this is to restrict, oppress, and regulate, because it has also provided, in a manner of speaking, with stimulus and whatnot.  But that is not as beneficent as it seems, as an otherwise obscure billionaire who is nevertheless probably in the know points out.

Let’s step back a bit, to a theme we have discussed more than a little over the years this blog has creaked along.  Centralization and collectivism were strong, not to say irresistible trends from the middle of the 19th century on.  The great wars of the 20th century were the most important manifestations of these trends.

Towards the end of the 20th century, though, the counter-trend began:  de-centralization and individualism.  Obviously, whatever progress this trend has seen, it has also encountered significant challenges in the 21st century:  the 9-11 attacks, the resulting “war on terror”, and now the worldwide pandemic.

Is this centralization and collectivism in their death throes, or an enduring trend reversal where they are vanquishing their rivals, de-centralization and individualism?

We don’t know this morning.  And we don’t know if we’ll ever know except in hindsight.

 

The Government Wins – Redux Edition

Business as usual in the SCOTUS.  There have been changes in personnel in the five years since our last post with this title.

But the results are the same.

The burning issue in this case? Whether a dismissal of a Federal Tort Claims Act (“FTCA”) case brought against the federal government bars any other litigation based on the same facts and circumstances.

Well, let me get a little lawyerly, in the sense of simply employing the rudimentary rules they taught us in law school. Under the usual doctrines of res judicata and claim preclusion and issue preclusion, sure, there’s a “bar” to duplicative litigation. You don’t get another bite at the apple, so to speak.

But there’s a hitch. You don’t generally get barred from suing again in a different venue unless there was an adjudication “on the merits” of your claim. So, to take the most obvious example, if you sued in the wrong court and that court had no jurisdiction to consider your claim, you can go over to the right court after that screw up and bring the claim there.

This is simple, horn-book law stuff.

So what happened with the case we linked to, known as Brownback v. King? Well, there was an FTCA claim and the District Court dismissed it for lack of jurisdiction.  The 6th circuit says, well, that’s not a bar to subsequent litigation because the District Court didn’t have jurisdiction to consider the FTCA claim to begin with, so there was no adjudication on the merits.

Bad move, 6th circuit.  You decided the government should lose.

The government then appeals – that is, brings a cert petition to the SCOTUS and guess what? The SCOTUS takes it up, it falls into that tiny pool of cases that the SCOTUS is going to hear and decide on the merits.

What’s the argument that the SCOTUS should, that Brownback presents some issue of general importance that is likely to recur enough to affect the beloved “system”?  From the government’s brief:

Under the court of appeals’ reasoning, any decision in favor of the government on an FTCA claim based on a failure to show liability under state law can be characterized as “jurisdictional,” with the result that a very large number of FTCA judgments rejecting the liability of the United States would be deprived of the judgment bar’s preclusive effect.

Where does the government come up with “very large number”? They don’t say. Because it’s not only not true, it can’t possibly be true, and we talked about that years ago, after the SCOTUS decision in Connick v. Thompson:

We have millions of felony convictions and imprisonments.  We have even more millions of misdemeanor convictions.  I have cited the statistics before here, right out of the US Bureau of Justice Department.

How many annual successful civil rights actions arise out of all this domestic “kinetic” activity?  At most 3,000, based on this and other BJS statistics.

It is axiomatic that violations of constitutional rights are likely in the course of a criminal prosecution, including simple arrests, because so many constitutional provisions apply.  Yet – and this is prior to Connick, the latest installment – the number of recognized and allowed annual section 1983 claims is running at less than one-half of one percent of the annual felony convictions, and an infinitesimally small percentage of annual arrests.

As I said before in another post, this is effectively zero.  42 U.S.C. 1983 was killed by the SCOTUS.  And that was before Connick.

The real reason SCOTUS is taking up the case, then, is because….the government is the Petitioner and the government wins. That’s the lesson. It’s been the lesson for decades now.  And you don’t have to take our word for it:

The justices gave just one of last week’s relists the nod, and unsurprisingly, it was the one in which the government is the petitioner, Brownback v. King, 19-546.

From John Elwood’s “Relist Watch” yesterday.  Emphasis supplied.

SCOTUS killed federal habeas corpus, too.  We hope we don’t have to review that history again.

The SCOTUS bias in favor of well heeled and institutional litigants and their law firms is completely reflexive and unselfconscious at this point. You’re either in the 1%, meaning your claims are assiduously observed and carefully considered; or you’re the rabble, too trivial to be bothered with.  It’s an axiom at the SCOTUS, and all the lower courts, state and federal, are just following suit.

It’s official. We’re better off without the courts. They exist to ratify and rationalize the prerogatives of the powerful over the powerless, while providing an illusion that redress of grievances can occur.

They are a lie.

 

Eight Years Ago…

…the term “liquidity trap” was popular and being discussed around here.  It’s still an issue requiring discussion.  Beyond that, we could still use a jubilee and a return to the gold standard.  There is still no other permanent solution.  Presidential candidates like Bernie Sanders are discussing the former; nobody in media land is discussing the latter.  That’s a disservice to the public, but only one among many at this point.

In any event, if people want to understand our monetary system in a nutshell, they could do worse than reading what we wrote back then:

Keynes and MMT are the ones who fundamentally misunderstand the government’s relation to money. The proper role of government wrt to money is to define a monetary unit of account and adminstrate it through bureaus of weights and measures.

The liquidity trap occurs when all that has been disregarded, the unit of account becomes fiat, and the bulk of a nation’s money is created through lending to individuals and businesses. Without a reference point at the bottom of it all, new money issuance is deemed satisfactory so long as loans are being repaid on schedule. In fact this is the only criterion for monetary balance in such a monetary system. When that changes, and loans are no longer being repaid on schedule, lending constricts, and it cannot be otherwise. It doesn’t matter how much liquidity you supply to lenders, they can’t make loans because the borrowing capacity of the populace has dried up. They are debt saturated.

The only answer for this that Keynsians have come up with is for the government to act as borrower of last resort. But in that case government deficits explode and you wind up with Greece and the EU.

In the system that we have, the fact that new money is loaned into existence is not discretionary. There is no other option. Thus if lending isn’t possible, no new money is possible either, and the money supply will stagnate or contract, which of course makes the repayment of existing outstanding loans more and more difficult.

This is why the “helicopter drop” remarks are intended to be funny. New money cannot be distributed that way. All newly created money must be owed back into the system; that is, someone must borrow it into existence and owe it back. It is the only way in a fiat system to regulate money issuance.

The subprime “crisis” signaled that the lending saturation point had been reached in the US. Since the country had largely run out of qualified borrowers, loans were made to UNqualified borrowers. There is no one to blame for this except the people who instituted the monetary system in the first place, and they’re all long since dead. The system will always wind up in this spot after a few generations.

The WaPo article discusses the common MMT inspired idea that taxes are the method for managing the government deficits that occur as the government becomes the borrower of last resort in a liquidity trap, which is just what is happening now. The idea being that the government takes back more and more of the new money that has been issued to ameliorate the deficit issue.

This is a frighteningly stupid assertion. It seems to contemplate a monetary circle jerk where new money is created through a loan to the government, paid out to whomever as salary or pursuant to a contract, and then the recipient is heavily taxed so as to get most of the money back. At that point, the monetary system is not reflecting or facilitating or serving the real economy, rather it’s the reverse: the real economy is serving the monetary system. To say that this is pointless and perverse is an understatement.

No theory of money and credit is worth a largely hungry and homeless populace, yet this is what is happening all over the globe: the theory is more precious than reality to those who get to make the decisions. We have government by so-called “technocrats” who are devoted to an idea rather than their subjects. And the idea is ridiculous.

The answer to all this is redeemable money that can exist and be newly issued apart from being loaned. But to get there from where we are will require a jubilee, because all the debt that has piled up cannot be paid back.

And it will take a constitutional amendment.

But this is a good thing. People need to recover their sense of self-government.”

 

Following the comments section here would prove interesting for some people, too.

Incoherence Update

When you “reason” only so as to reach a desired result, there is trouble down the line.  You’ll wind up living with your reasoning, that this time produces the wrong result.

So Cole v. Carson has been kicking around for years now.  Up to the SCOTUS, back to the 5th circuit, to a three judge panel, to an en banc rehearing, and now up to the SCOTUS again.  Where it doesn’t seem to be getting much traction, this time.

We bring this up because there is mischief afoot.  The prosecutor groups have filed an amicus brief (just look how many!), but they are not so much the problem as the Petitioner’s brief, and specifically the second question presented in that brief.

We can’t blame them for presenting that question.  And the SCOTUS shouldn’t either.  Here’s the question:

Does a police officer who inaccurately reports his perceptions of events during a dynamic shooting encounter violate clearly established rights under the Fourteenth Amendment?

Well, that’s not really what is being alleged.  What’s being alleged is not that the police officer was “inaccurate”; rather, it’s that the police officer deliberately lied about the events in order to cover up the fact that his fellow officers unjustifiably fired on the Plaintiff, causing his catastrophic injuries.  Partly causing them, anyway.  Because the Plaintiff was apparently suicidal and also shot himself in the head.

But never mind.

The point is that under the 4th amendment the distinction we just made doesn’t matter.  The officer’s intentions, his “scienter”, doesn’t matter under a 4th amendment analysis.  It would matter under a 14th amendment-due process analysis.

So what’s going on here?

Well, the Petitioners don’t say a lot about it.  There are basically two paragraphs in the petition about this.  They’re loaded paragraphs, though:

Manuel, 137 S. Ct. at 920-21, establishes the claim
against Officer Carson must be assessed under the Fourth
Amendment. As far back as 1994, five Justices in two
opinions remitted to the Fourth Amendment such claims
that a person had been held on unfounded charges by
a policeman. Manuel, 137 S. Ct. at 918 (citing Albright
v. Oliver, 510 U.S. 266, 271-273 (1994). Probable cause
existed to arrest Cole for unlawfully carrying a weapon,
a crime Cole confessed to committing. (App. 141a). The
Fifth Circuit, therefore, appropriately dismissed the
Fourth Amendment claim against Officer Carson in light
of Devenpeck v. Alford, 543 U.S. 146, 153-154, 125 S. Ct.
588 (2004).

Officer Carson could not have known in 2010, the
Fifth Circuit would years later enact a new, Fourteenth
Amendment cause of action exposing him to liability on
mere allegations he misstated the facts of a dynamic event.
(App. 146a, 173a). Manuel and Albright demonstrate the
claim against Officer Carson is not cognizable under the
Fourteenth Amendment, but, even if uncertainty exists,
as Fifth Circuit Judge Jones suggested comparing
Manuel with McDonough v. Smith, 139 S. Ct. 2149 (2019)
(App.29a), with such uncertainty even today, the right
involved is not beyond debate and is not “sufficiently clear
that every reasonable official would have understood what
he was doing violates that right.” See Stanton v. Sims, 134
S. Ct. 3, 7 (2013) (discussing that reviewing Judges could
not even agree on the issue).

Judge Jones’ footnote?  We discussed that a little bit here, not that long ago.

Well, how about this argument that “five Justices in two opinions remitted to the Fourth Amendment such claims that a person had been held on unfounded charges by a policeman”, citing to Albright v. Oliver, one of the sources of all this incoherence?

The argument itself incorporates a faulty proposition and fails to cite the relevant case, which is Marks v. United States.  The relevant inquiry is not simply the number of justices who agree upon a specific proposition in resolving a case by plurality opinion; rather it is whether that proposition disposes of the case on the narrowest grounds:

When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, “the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds…

But the argument is wrong for a reason even more fundamental.  What was the result in Albright?  SCOTUS ruled that he didn’t have a due process claim, not that he had a 4th amendment claim, which he refused to even argue.  So that latter problem didn’t arise until 2017’s Manuel v. City of Joliet – 23 years later – where SCOTUS held that Manuel in fact had a 4th amendment claim.  But as we noted at the time, and elsewhere since, Manuel refused to argue that he had a due process claim, exactly the reverse of Albright’s position.

So now we see the argument, in the latest SCOTUS iteration of Cole v. Carson, that we can’t sue a police officer who deliberately lies and cheats to bring about a criminal prosecution under the 4th amendment because his intentions are irrelevant so long as there is an objective basis to find his actions “reasonable”; and we can’t sue him under the due process clause either – because “qualified immunity” – because it’s not clear that that, in and of itself, is a violation of anyone’s due process rights.

What about Mooney v. Holohan and its progeny? The argument from here will have to be that those cases apply only where there has been a conviction.  In 1994’s Albright, and in 2017’s Manuel, and in 2018’s McDonough there had been no convictions.

What’s wrong with that argument?  A lot.

We can’t really improve upon Justice Stevens’ commentary in that regard:

In my opinion, the formal commencement of a criminal proceeding is quintessentially this type of state action. The initiation of a criminal prosecution, regardless of whether it prompts an arrest, immediately produces “a wrenching disruption of everyday life.” Every prosecution, like every arrest, “is a public act that may seriously interfere with the defendant’s liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends.”

Of course Justice Stevens was writing in dissent.

We would like to see the nation’s police and prosecutors make their argument more forthrightly.  Argue to the SCOTUS that lying and cheating by police and prosecutors do not matter if there is no conviction, that is.

In other words, defend official lying and cheating.

It’s the era of Trump, after all.

Ugh.

“State Courts Matter”

How has it come to pass, we wonder, that someone feels the need to actually say this in a law review article?

Well, we don’t really wonder. We already know.

The legal profession is fractured from an absurd stratification.  “Trial lawyers” are an endangered species confined, at this point, primarily to criminal defense and prosecuting.  The former being the most important and necessary work and also held in the lowest regard by the rest of the profession.

Let that sink in.

The highest regard is reserved for “lawyers” who have never tried a case or had an actual live human being type client.  Lawyers, in other words, who are not lawyers at all  in the sense the term has been traditionally understood.  They include law professors, solicitors general, federal (not state) prosecutors, and large firm appellate advocates.  As we said, some of the highly regarded – federal prosecutors – have actually tried cases, but among the rest this is regarded as mark of lower status.  We are not making that up.  The prosecutors who have tried cases are considered suitable for trial level federal courts (i.e., District Courts), but not federal appellate courts.  It’s not an exaggeration to say that trying a case to a jury, to these members of the profession, is to have dirtied your hands and sullied your credentials.

Federal prosecutors who have tried cases aside, these highly regarded members of the profession now have a near monopoly in federal appellate courts – that is, all the federal circuit courts of appeal and the SCOTUS.  Which is to say that all of the judges, law clerks and for the most part the advocates in these courts come from the most highly regarded ranks of the profession.  Or at least those ranks are highly regarded by People Who Matter.*  So for the most part when an appeal is heard in a federal appellate court, no one arguing it or hearing it has ever tried a case.

State courts do not follow this pattern at all.  Well, maybe slightly, in some states, but the contrast in what might be called “professional diversity” between state and federal appellate courts is extreme.

For sane people, the professional diversity of the state courts is obviously desirable for the federal appellate courts as well.  But in a professional (and more generally, too) increasingly shallow culture, prestige-obsession governs to the point where prestige reaches an upper limit, and it is virtually all that matters.

And then eventually someone has to remind the audience for which law review articles are intended – that is, the prestige-minded and highly-regarded – that lesser prestige state courts have a far greater impact on the country than federal appellate courts do.

The danger, of course – well, one danger anyway – is that the impact on the rabble country, to the highly regarded, is as much a trifle as the state courts themselves.

In the end, we don’t know whether it’s a Good Thing or a Bad Thing that someone actually came out and said to a law review audience that “state courts matter”.  It’s indirectly revealing, which is always a good thing, we suppose.  But what it reveals is also lamentable:  an entrenched snobbery that increasingly marginalizes the legal profession.

A marginalized legal profession “matters”.  In the genuine sense, not the shallow sense.

Ugh.

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* People Who Matter is probably a subject for another post, or lengthy screed as the case may be.

 

Trade War Counter-Spin

So, farmers are upset and claiming that the “trade war” with China is putting them out of business.

We don’t want to see any productive hard working people put out of business.  Especially farmers.  But we also think there may be foundational and structural adjustments to be made and that it’s not easy to do that without some pain.

The way things have been working, we run enormous trade deficits with China and other cheap labor countries so we can buy trinkets at Walmart for virtually nothing, while China buys up our food from our farmers, which is one of the only things ameliorating our trade deficit with them.  One of the effects of all this is to sustain our relatively primitive agrarian economy while China builds up its relatively more sophisticated manufacturing economy.

There’s a sense in which this arrangement is sort of obviously, you know, unwise.

But there’s a deeper issue.  We have grown very accustomed to cheap food and cheap consumer goods while at the same time we have incredibly expensive housing and health care, and pretty high taxation.  Put another way, we transfer an enormous percentage of our national income to bankers for mortgages, government for taxes, and insurance companies for health care.  This sustains in high fashion a basically parasitic managerial class that draw their income from government, or large institutions that feed off of government directly or indirectly, like banks and insurance companies.  And defense contractors – you know, the MIC.

It’s only our opinion, but we think it’s more economically healthy to pay relatively more for food and necessary manufactured goods, and relatively less for housing and government and weaponry and troops.  So we’d like to see farmers paid more by their own neighbors and countrymen for what would probably wind up being better food, but that won’t happen easily because the parasitic class in New York City and Washington isn’t just going to roll over and take a relative pay cut.

So, you know, it’s a difficult adjustment.  Maybe we can bridge the gap with increased subsidies to farmers.  We’ve been doing a lot of that since the New Deal anyway!

Just a little musing here.