A Support for Tort Reform: Not Really.

Anyone who knows me knows that I am a loyal reader of the New York Post, in fact, I have read almost every New York Post ever printed cover to cover for the past 20-odd years.Calculating this, means I have spent more than $5,000 on the paper since the time I was in college. It also means that I am probably in a better analytical position than many of the editors, including the editor in chief, Col Allen, who is Australian and picked by the owner, Rupert Murdoch, also an Australian.

That being said, I was always aware of the point of view of the editor, and by default the perspective of the writers he has hired. I have often quipped, and again for those who know me, this is nothing new: I read the post as the antidote to the New York Times, and I read the New York Times, as the antidote to the New York Post. Most items I read, I am dispassionate about, and attribute any point of view to rhetoric. But then I saw yesterday's NY Post article titled: "NY Suer system sucks." And I could not help but to leave that without comment.

Basically the article piggybacked the political perspective that in order to make "healthcare reform" work: in shorthand: "tort reform" would need to be part of the equation. But the article was unfortunate in that, first of all it cited five cases over the last seven years as "abuses of the legal system."

However, none of the case supposedly proving the point, involved medical malpractice.

Additionally all of the cases that were cited as signs of abuse were thrown out of court, and none of the plaintiffs recovered a cent. Yet, the Post figured their readers were ignorant enough that they would be outraged by the filings of the suits that they would further the agenda of the editors. Again, I love the Post, but for my own reasons, I am a skeptic.

Yes, each of the Plaintiffs filed a suit, all were thrown out...So what is the problem? Unless the perspective is that Plaintiffs who are truly injured should not be entitled to seek redress for the injuries suffered, who can complain?

Leaving aside the merits of the lawsuits, the New York Post attempted to take five suits over seven years, all of which were thrown out by judges in New York Courts, and from them, extrapolate that the judicial system was out of control.

A careful reader would come to the exact opposite conclusion: It is only pertinent suits that will go to trial. The rest will be weeded out by judges who take the judicial system seriously. If anything, conservative advocates...including the New York Post, should be welcoming the "frivolous" lawsuits they cite...not only will they never be able to reach the determination of a jury...but the filing fees expended by the Plaintiff, will be paid into the budget without a cent recouped. A double win: It can be used as rhetoric as a prosecutorial win, and the fees can be used to reduce the state deficit.

An (Enhanced) Slap to the Head

I'm sure it comes as no surprise that if I punch you in the face in order to steal your wallet I am facing jail time. But it may come as a surprise that if I commit the same act while insulting your ethnicity, religion, sexual orientation or disability status I could face an additional 10 years. Welcome to the wonderful world of "hate crimes."

Last week the Senate passed the Local Law Enforcement Hate Crimes Prevention Act of 2007 also known as the "Matthew Sheppard" act. Yesterday President Obama signed the bill into law. The basic thrust of the law is that crimes motivated by a victim's actual or perceived gender, sexual orientation, gender identity or disability deserve special protection, and enhanced punishment.

The justification of hate crime legislation is that when a vulnerable person is victimized solely due to physical characteristics over which he or she has no control such a crime is an affront to American society and accordingly deserving of extra contempt.

In the abstract, I suppose it's hard to argue with this reasoning. However life is not lived in the abstract. Punishment requires the arbiter of sentencing to get inside the mind of the attacker. Personally, I fail to see how punching a 75-year old woman and stealing her purse is any less culpable than punching the same woman while calling her a stupid Jew.

Even the title of the law speaks to its silliness. in 1998, Matthew Shepard was a student at the University of Wyoming when he was attacked because he was perceived to be gay. His attackers had planned to rob him but ultimately the robbery resulted in Shepard's death. His attackers, Aaron McKinney and Russell Henderson pretended to be gay in targeting Shepard. They ultimately hanged him like a scarecrow, and left him to die. A hideous crime to say the least. However both of his attackers were prosecuted for the attack. While the prosecution could not present evidence as to the motivation of McKinney and Henderson, because Wyoming did not recognize hate crimes due to sexual orientation, both defendants were successfully prosecuted and are serving life sentences in Wyoming. In other words, even if it could be shown that the motivation for the attack was because of Shepard's sexual orientation, under the law, his attackers could not be punished any more than they have been.

This week we just had a group of bigots come to New Jersey and target Jewish institutions, including the Anti-Defamation League, who by coincidence was one of the main backers of enhanced hate crime legislation. This particular hate group thrives upon publicity and uses as ammunition any news which they can spin to show that minorities in America receive special privileges and protections at the expense of "true" -- read White Christian--- Americans.

While valid arguments can be made that at time minorities need, and deserve special privileges and protections, any such action should be made with the intention of putting minorities on equal footing, not in affording a special status of protection. A fist to the face is as menacing to a black, to a Jew to a gay as it is to a Christian White man and both should be prosecuted to the fullest, just as the crime committed to Matthew Sheppard was.

Once we get government involved in the business of not only the conduct of a criminal defendant, but also its motivation, we are no longer involved in a sphere that I believe is under the provenance of judicial law, but rather veering off into the realm of psychology and social science. In doing so, we undermine the basic proposition under which the American Experiment was founded: That is, that all people are created equal and that all people will be afforded equal protection under the law.

That Congress has engaged, and prioritized this exercise in social engineering, and that President Obama signed the legislation yesterday and hailed it as an expansion of freedom leads me to question the Congress and the Administration's s priorities. Our servicemen remain stuck in the Middle East seemingly without conclusion. By even the most optimistic estimates our economy will fall further behind over the next ten years. Health care is still a mess; but at least we can feel good that people who attack minorities while engaging in slurs will be facing an extra 10 years of jail time....Meanwhile the bigots out there, who would like to do the attack, have a new bullet point in their literature to raise money, and recruits....Pun most definitely intended.

Sometimes Congress Shall Make A Law....But Can They?

Over the past few weeks we've explored several First Amendment cases on this session's Supreme Court docket. Today we will preview what may end up become the most important of these cases. Citizens United vs. Federal Elections Commission is a case that squarely attacks the Bipartisan Campaign Reform Act, more commonly known as the McCain-Feingold Law.

The purpose of McCain-Feingold is to regulate and restrict financing of political campaigns. It specifically targets two methods of advocacy: 1) Limiting the amount of money that can be raided for political action committees and 2) Restricting "issue advocacy adds" so that they can generally not be used to attack individual candidates within at least 30-days from an election.

The main ideas of McCain-Feingold are 1) since restrictions were already in place for how much money could go to individual candidates, groups got around the restriction by not raising money for individuals but for Political Action Committees (or PACs) which in turn would support a particular candidate using the money raised and 2) Issue-advocacy ads are generally used as "attack" ads and therefore not informative. Accordingly there are time restriction on when these ads can be run.

Critics, however, point out 1) there is no evidence that raising money for a PAC has proved to be by itself a direct source of corruption and 2) Politicians, like those which passed the law, have a self-serving interest in stopping attack ads since it is usually the incumbent with a record who is most vulnerable to attack.

But perhaps most importantly, critics argue that the law on its face is in direct violation of the First Amendment's directive that "Congress shall make no law...abridging the freedom of speech... or of the the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." It has been held as to become a basic foundation of law, that Political Expression is the very essence of Freedom of Speech.

The butting of the First Amendment with McCain-Feingold became crystalized when former Deputy Solictor General Malcolm Stewart, representing the FEC before the Supreme Court argued last March that under the provisions of McCain-Feingold, the government has the "power to ban books," if those books expressly advocacated for a candidate during the restricted period. The general reaction to the Solicitor's concession was one of shock. If there is one provision that has essentially remained undisturbed in the history of American jurisprudence is that it is only in extremely rare and exceptional circumstances that the Government has the power to ban books.

The controversy began when Citizens: United produced a film called Hillary:The Movie which was essentially an attack ad by the group, a Conservative Non-Profit advocacy organization against Hillary Clinton who at the time was running for President. The FEC banned the movie as an "electioneering communication which had no purpose other than to advocate against a candidate." The CU argued the film was fact-based and that they were non-partisan. A Federal District Court ruled against them.

The case was appealed, however, and reached the Supreme Court where Stewart made his statement. But then, after argument, something extraordinary happened. The Supreme Court directed an order that the case be reargued, and in fact, was placed as the first case on the Court's calendar this session. In fact, it was the first formal argument that took place in front of newly instally Justice Sonia Sontomayor.

This time, representing the FEC, was the Obama-administration's newly appointed Solicitor Elena Kagan who took a more conciliatory tone. She suggested that it may have been wrong to restrict Citizens United. What the Supreme Court should not do, she said, is overrule the law entirely. In other words she was throwing her sword down on the case to try to save the law.

Chief Justice John Roberts spotting the tactic asked Kagan outright “So you want to give up this case, change your position, and basically say you lose solely because of the questioning we have directed on re-argument?”

Kagan replied that she was not giving up the case but, “If you are asking me, Mr. Chief Justice, as to whether the government has a position as to the way it loses, if it has to lose, the answer is yes.” In other words, she doesn't want to lose but concedes defeat.

Although a decision has not been issued yet, it is clear that even if the government is agreeing that Citizens United should not be censured, they are going to lose the case. The questions however remain, with the defeat of the case, what will be the shape of the Campaign Finance Reform laws after the Supreme Court has its say and will whatever decision rendered, be, in any way compatible with the McCain-Feingold law or will campaign-finance regulations ultimately die despite the best of intentions?

Congess Shall Make No Law...

It is generally agreed that on a panel of very smart people, Justice Antonin Scalia stands out for his intelligence. Even his critics, and there are many, point out to the point of cliche that it is not his reasoning that they disagree with, but his conclusions. But Scalia during oral argument last week in Salazar v. Buono proved that occasionally even very smart people can say very stupid things.

Salazar v. Buono is another First Amendment case, being heard at the opening of this year's term. But rather than dealing with the First Amendment guarantee of Free Speech it deals with the issue of the prohibition against the of government's establishment of religion. Part of religious establishment is the prohibition for government to favor one religion over another.

The issues in Salazar stem from a large memorial cross that was erected in California's Mojave Desert as a war memorial honoring fallen American soldiers. It was first erected by the Veterans of Foreign Wars in 1934. The original cross has been replaced several times, most recently in 1998. The cross has been a regular gathering place for Easter worshippers over the years.

A year after the most recent cross was erected a request was made to the National Park Service to erect a Buddhist memorial on land near the cross. That request was denied. Two years later, Frank Buono, a Park Services employee filed suit in Federal District Court claiming that the cross violated the Constitution's Establishment Clause. The Court issued an injuction ordering that the “Defendants, their employees, agents, and those in active concert with Defendants, are hereby permanently restrained and enjoined from permitting display of the Latin cross in the area of Sunrise Rock in the Mojave National Preserve.”

While the case was appealed, and pending, Congress acted with three pieces of legislation: The first was to pass an appropriations bill which included a section designating the Sunrise Rock cross as a “national memorial.” The second was to pass an appropriations bill barring the use of federal funds “to dismantle national memorials commemorating United States participation in World War I.” And the third was to pass another appropriations bill that included a land exchange agreement regarding the Sunrise Rock cross in which an acre of land containing the cross was conveyed to the Veterans Home of California— Barstow, Veterans of Foreign Wars Post #385E in consideration for five acres of land.

The purpose of the transfer was to remove the land in question from public ownership. If the land was owned by a private entity the private organization, in this case the local VFW, could do what it wanted with the land and the First Amendment would not apply. However, there was a catch: The government retained a reversionary interest in the property subject to a condition that the recipient maintain the conveyed property as a memorial commemorating United States participation in World War I and honoring the American veterans of that war. In other words, if the cross was removed, the land would belong to the Federal Government once more. The intent of the legislation was blatantly obvious. It was an end run around the Courts, and more cynically, considering the legislature was made up of a majority of Senators and Congressmen demanding "Judges who would interpret the Constitution, not legislate from the bench," a method of disallowing Judges from making a basic interpretation of Constituiton's Establishment Clause to achieve a result that the majority of the then existing Republican Congressional majority desired.

Despite Congress' mechinations the Ninth Circuit Court of Appeals affirmed the District Court's injunction. Despite the Court's decision in 2005, the Congress went forward in initiating the land exchange to the VFW. Despite Congress' action the Ninth Circuit Court of Appeals ruled that the land exchange was intended to promote a relgious purpose and unlawful under the Establishment Clause.

Which brings us to today: Buono is still arguing, eight years later, to the Supreme Court that a cross first erected in 1934, but not formally complained about for 67 years, violates the First Amendment. The Department of the Interior seeks a judicial determination in its favor on procedural grounds. The government, interestingly enough, is not arguing that the cross is not an establishment of religion, but rather that Frank Buono cannot bring a lawsuit under the doctrine of Standing. Standing is a technical rule which requires that in order to maintain a lawsuit, a Plaintiff must show that he has a personal stake in the matter. The government is arguing that Buono has sustained no injury and will not suffer any personal harm if the Court rules against him, and accordingly does not have standing. Apparently the Government does not want a fight on the actual merits of Buono's claim.

In last week's oral argument Peter Eliasberg, Buono's lawyer said that it is clear that the cross violates the First Amendment. "Such a memorial," argued Eliasberg, "signifies Jesus is the son of God and died to redeem mankind for our sins. There is no coherent construction of the cross that could present it as a secular memorial."

Justice Scalia questioned whether Eliasberg would prefer "Some conglomerate of a cross, a star of David and a Muslim half-moon and star?"

Eliasberg responded "I have been in Jewish cemeteries. There is never a cross on a tombstone of a Jew."

Scalia scoffed, "I don't think you can leap from that to the conclusion that the only war dead that the cross honors are the Christian war dead. I think that's an outrageous conclusion."

What is outrageous is that Scalia articulated that a Christian cross can somehow be construed a universal secular memorial symbol from a bench which includes two Jewish Justices.

Don't Kill the Messenger

A flurry of First Amendment cases initiated this year's Supreme Court term which began this week. Among them are another review of the McCain-Feingold act limiting political expression by lobbyists, at least a portion of which is expected to be declared unconstitutional. Additionally there is a case from California regarding the Federal Government's decision to sell publicly owned land to a private foundation. No problem there, except that on the specific land a war memorial was erected. No problem there, except that the war memorial was in the form of a large cross. Muddying up the waters is that the cross was erected in 1952 and the first formal complaint did not come till 40 years later. We will get to these issues in later columns but today let's draw attention to a case argued this past Tuesday.

It involves a 1999 Federal Law prohibiting "commercial trafficking in animal cruelty" which prohibits "audio and video depctions in which a living animal is intenitonally maimed, mutilated, tortured or wounded or killed if the conduct was illegal where the depiction was sold." The purpose of the law was to prohibit the distribution of "crush videos" which are videos involving a certain, apparent, sexual fetish of watching women wearing high heels stepping on and killing small animals.

Defenders of the legislation say that the law is necessary and akin to legislation prohibiting the distribution and possession of child pornogrophy. Which, of course, is outside the scope of First Amendment protection. Sounds good on paper. Problem is, as skeptical Justices pointed out, the statute could for all of its good intentions decide what is legal or not depending on the whim of a overzealous prosecutor.

Justice Ginsburg asked if the law means that a documentary depicting cockfighting could be banned?

Justice Stevens, the oldest judge on the Supreme Court rumored to be retiring at the end of the term, sharply questioned whether a film depicting hunting with a bow and arrow could be subject to prosecution?

Justie Breyer asked about videos depicting the fattenting of geese in preparation of making foie gras. A food regularly targeted as inherently cruel by animal-rights activists.

Then the Court's ultimate original constructionist, Justice Scalia asked proposed, "What if I am an afficianado of bullfights, and I think contrary to the animal cruelty people, they ennoble both beast and man?"

The Solicitor General defending the law, countered that the pupose of the legislation was not to stamp out any potential hypothetical case within the imagination of creative justices but was targeted to deal with a real-life situation. Crush videos, which are, to understate it to most people, despicable.

The problem is, that like any well-intentioned but poorly drafted legislation, it is possible that the application gets away from the purpose. Robert J. Stevens is a self-described dog lover. Stevens also is a film distributor. The thing is, his films depicted blood thirsty pit bulls fighting eachother to the death. It was not alleged that he owned pitbulls showed in his fim, or even that he was instumental in causing the fighting. Merely that he filmed and distibuted the combat. He was prosecuted based on the 1999 law and was found guilty by a Pittsburgh jury. Subsequently he was sentenced to a 3-year jail term, which incidentally is longer than Pro-football player Michael Vick served who did own and cause pit bulls to fight to the death.

Rather than accept the sentence, Stevens challenged the law. Stevens said his purpose, as a "dog lover," in distibuting the video was to provide information about pit bulls, specifically to educate the public. Perhaps picking up his line of reasoning, the newest Justice, Sonia Sontamayor, asked the Government's lawyer David Kaytal about a documentary regarding pit bulls: "Off the Chain" which was widely regarded as an expose of dog fighting. Sontamayor noted that the documentary had "much, much more footage on the actual animal cruelty" then Stevens' film.

The 1999 law does exempt materials with "serious religious, political, scientific, educational, journalistic, historical or artistic value." The problem is Stevens is claiming educational value just as Roma's documentary had uncontroverted journalistic value. Who is to determine that it does not?

Justice Breyer seemed to sum up the skepticism of the Judges when he asked Kaytal if the Congress' purpose was to ban "crush videos" why not draft legislations specifically addressing Crush videos?

The thing with legislation which conflicts with conduct certainly protected by the First Amendment, especially in this Country which prides itself on its "freedoms," is that restrictions to those freedoms have a real effect. Legislation which may be popular in the abstract have consequences to not just society, but real living people: all of us. The Court, by its skepticism seemed to indicate that no one is defending puppy crushers. But in punishing those that do wrong, we should be mindful not to kill the messenger along with the message.

William Safire, an appreciation

I admired William Safire. When he died last week it saddened me. I, of course, did not know him personally or even as anything about him other than his writing and basic biography but I appreciated him nonetheless and was saddened by his passing.

There have been countless obituaries, and I won't repeat most of his credentials; they are easy enough to look up. But I will talk about one. He was a speech writer for Richard Nixon, and when Nixon's vice president Spiro Agnew was under investigation for tax fraud, he went on the offensive calling those who were attacking the Vice President "Nattering nabobs of negativism." Agnew ultimately resigned proving his critics correct, but regardless, Safire's illustrative articulation of alliteration became an icon and even though he was acting as an advocate, Safire's critics could not avoid appreciation at his facile use of English language.

After Nixon resigned, Safire became a columnist at the New York Times. Not a cozy spot for a conservative commentator, yet Safire was able to earn admiration from New York Times loyalists even though he regularly did not spout the company line. Perhaps the greatest benediction regarding Safire's commentary was articulated by Kenneth Davis a New York Times reader from Scotch Plains in his September letter to the editor published in the Times: "William Safire will be sorely missed." Davis wrote, "Although I often disagreed with his politics, I always enjoyed reading his column...While reading his work, I felt the intellectual pleasure of having my views challenged by a worthy opponent."

Safire was a political minority inside an ethnic minority...a Jewish Conservative. But he never towed the party line and he always gave his readers something to think about. As someone who has a bit of a contrarian streak myself, I admired Safire as a thoughtful iconoclast. Politically, I agreed with him more than I differed with hin. Religiously, it was the reverse.

I did have one personal encounter with Safire. He was the featured commencement speaker at my graduation from Syracuse University in 1990. In a long line of boring speeches his stood out. He spoke about the virtues of editing and till today I remember the topic: the ten, scratch that, nine rules of Speaking. Always speak as briefly as possible was the main subject. When fewer words will do, don't add extra. Classic Safire. If I received no other words of wisdom that day, that was enough. I took Safire's advice to heart. And to this day I try to get my point across in the most precise manner possible.

Many have noted the demise of benevolent debate for the sake of thoughtful argument, without personal rancor. His manner would not fit with today's preferential manner of political argumentation espousing I win if you lose. Saifire was not a proponent of zero sum gain. He was more likely to view success if he could persuade you rather than beat you in submission. It is a lesson that perhaps we should all take to heart. While the true believer may not be turned on by his low key reasoned manner of political persuasion. Safire's articulation of argument is still more like to persuade the great muddle that is the middle of American political thought. We are all more likely to win as a society not when a small majority believes they have beat the minority into submission, but when a plurality believes that the resultant outcome allows all sides to be heard and comes to a consensus taking as many accounts, as reasonable, into consideration.

Choose Life: Whose Decision is it Anyway?

When discussing health care, rationing has become a dirty word. By using the term rationing people generally mean the decision as to when to provide or withhold medical care. It has become one of the key criticisms of President Obama's plan to reform health care that, by necessity, care which is now provided will be withheld for those who are very sick, or not quite sick enough. it may come as a surprise to some that decisions to provide or withhold care are already made on a daily basis. Insurance companies and medical practitioners sometimes have gone to Court to enforce their decisions not to provide care.

One recent example is a case that is currently working its way through the New Jersey state courts. Ruben Betancourt, was a 73 year old man from Elizabeth, He went to Elizabeth's Trinitas Hospital for an opeartion to remove a malignant tumor. During the procedure he slipped into unconsciousness, and remained in a vegitative state for the next 14 months. He was treated at a variety of hospitals until July 2008 when he was readmitted to Trinitas for treatment associated with kidney failure. At that time, against the family's wishes, Trinitas doctors made the decision to take him off of life support.

The hospital's notes indicated that Betancourt "does not respond to pain or move his extremities and only makes reflexive eye movements." However Betancourt's family protested and said that Betancourt responded to "external stimuli" and they pointed to other medical notes indicating theat Betancourt was "awake."

The family made an emergency petition to the Union County Superior Court and Judge John Malone ruled that "life-support decisions should not be made by care givers or courts but in accordance with a patient's rights." If the patient was not able to express his wishes it is his immediate family that must make the decision for the patient based upon what the patient would want.

Judge Malone's decision was based upon the principle that just as a patient has the right through either the use of a conscious declaration, a living will, or a representative surrogate to make the decision to withhold heroic life saving measures, the patient has the right to insist upon all measures available which will extend the patient's life.

Ruben Betancourt died shortly after Judge Malone's decision was rendered. Normally that would be the end. But Trinitas made a somewhat surprising decision. Trinitias reasoned that the scenario that occurred with Betancourt would likely to reoccur and they appealed.

The crux of Trinitas' argument is that the determination of life and death is a conclusion that legally only belongs to a medical provider. Betancourt's condition was futile. Just as a doctor is not required to infinitely provide CPR to a patient whose heart will not start on its own, when life is only being sustained mechanically, Trinitas argued, a hospital can decide to withdraw artifical measures of life sustenance.

In other words because Betancourt was in a grave condition, even though he was alive, keeping him on life-support, when doctors determined he would not recover is a waste of resources. This is a cost based rationale, the very definition of rationing, and even without healthcare-reform, and private insurance available, Trinitas is asking for New Jersey Appellate Courts to rule in its favor.

As an Appellate level case, whatever decision is made could have a precedential effect and as such it has attracted the attention of external interested parties. The New Jersey Hospital Association, the Catholic HealthCare Partnership of New Jersey and the Medical Society of New Jersey will be submitting briefs in favor of the hospital which according to its mission statement is "a Catholic hospital sponsored by the Sisters of Charity." Additionally there will be briefs supporting the family submitted by two Jewish groups: Agudath Israel of America and the Rabbinical Council of America. While Ruben Betancount was not Jewish, the Jewish groups, with Betancourt's family's blessing, sought to have their opinion heard to further the principal under Jewish law that places the importance of existing life above all external factors.

The case will be heard this Autumn by the New Jersey Appellate Division. The decision should make an interesting side note to the debate regarding the nature of healthcare in this country. What it is, what we want from it and the shape it should ultimately take.

The Consequences of Speech

The adage about sticks and stones may hold true on the playground, but as we've seen in a spate of recent lawsuits the part about names never hurting does not necessarily hold sway in the American judicial system.

Within the past few months there have been highly publicized defamation suits involving a Chicago landlord against one of its tenants who alleged mold in her apartment, a model against an anonymous poster who blogged that the model was a "skanky superstar." We saw a suit this summer filed by real estate mogul Donald Trump against an author who alleged that his personal wealth is not nearly as much as he claims, and competing lawsuits by former major leaguer Roger Clemens and his one-time trainer and friend Brian McNamee over Clemens' alleged use of steroids during his playing career. Clemens' and Trump's suits were dismissed.

The basic premise of defamation is that a statement, or published remark has hurt the reputation of the person who is the intended target. The immediate knee-jerk defense is that in America we have "freedom of speech."

To a degree it is true that we can say or write anything we want. However like everything. Freedom of speech is not absolute. Or as Justice Oliver Wendell Holmes once put it, "free speech would not protect a man falsely shouting fire in a theater." If the statement is harmful, it has been heard (and believed) it is untrue, and it can be shown to have caused real damage to the target's reputation, the speaker can be successfully sued.

The Supreme Court in a famous 1960's case New York Times vs. Sullivan added a prong when dealing with public figures or issues of public import. The court in 1964 said that the defemation must be one based on "malice." Malice in this case does not mean that a reporter actually had spite -- the layman's understanding of malice, but rather, it is in this case a term of art, meaning that the reporter had no regard for accurate reporting. In this manner, the malice is towards the truth, not the defamed party. The concept behind Times v Sullivan is that actual reporters need to be given leeway with respect to the First Amendment for fear that if the press are afraid to be sued for good-faith errors, which turn out to be defamatory, matters of public import will go unreported.

However over the years critics have argued that this distinction between reporters, and various categorizing of subjects is dubious. Non-professional media don't get the benefit of doubt of "bonafide" press. And statements involving allegations that your non-famous neighbor has a proclivity to take money to perform sexual favors are actionable without your neighbor proving actual malice, even if you had a well reasoned belief that all of her various male visitors parking next door in the middle of the night, were not simply visiting to check on her well-being.

With the upstart of new media, such as blogs (like this), tweets and postings on sites like Facebook and My Space. The game has shifted. Traditional press have tried to maintain the distniction between profession and private reporters. The press has argued that traditional media are subject to ethical rules and codes of conduct, and editorial and fact-checking standards that bloggers don't have. This is so, even when, as it so happens often blogs are the first to report on stories that are only later picked up in traditional press and where the traditional press has been shown from time to time to suffer from a lack of the standards they profess. Some argue that the distinction between a professional press and new media should not apply.

However the critics differ in the best way to resolve the distinction: Some argue that bloggers should get the same benefit of doubt as professional reporters. Others argue that professional reporters should not be treated with any more protection than any one else who writes.

Courts, to date have mainly upheld the distinction between professional reporters and non-professionals. For that reason, Liskula Cohen was successful in getting Google to name the author of the "skank" comment and Horizon Group Management was able to sue Amanda Bonnen over her tweet "Who said sleeping in a moldy apartment was bad for you? Horizon realty thinks it's okay" which when at first posted was seen by less than 100 people.

Horizon's lawyer said the company is a "sue first, ask questions later kind of an organization." Bonnen's attorney responded that the Company is acting the bully in order to forestall others from asking legitimate questions. This lawsuit brings to life the exact fears that the Supreme Court expressed in requiring the malicious intent standard in Times vs. Sullivan.

Will the standard change? It will eventually have to. New media requires a new look at reporting, what exactly it means, and how to protect parties from untruthful and malicious smears. What the new standard will look like may not take shape for a decade or more. But until we know, there is one thing that anyone who blogs, tweets or posts should be aware of: While you have the right to say anything you want, it does not mean that you have the right to free from the consequences of what you say.

The Freedom Not To Speak

I recently connected with an old friend whom I have not seen since High School. We were assigned to the same home room and my most vivid memory of him was his refusal to attend to the one common ritual uniting almost all of the public schools in the United States: The Pledge of Allegiance. Each day when the loudspeaker implored everyone to please rise, he sat. When the words of the Pledge were recited, he remained silent in his seat. Now, his small act of protest might have been merely a diversion, or a quirk in most classrooms. But our home-room teacher had a son serving in the Marines, as he was proud to tell us, and he took it as a personal affront that my friend failed to "recognize his son's sacrifice." Our teacher would literally stand over my friend. My teacher's face would turn a complexion that would put a beet to shame. His veins would protrude. His eyes could not hold back the hatred he felt for the student. He would scream at the boy to stand up, "Say the pledge!" But my friend would remain silent and would stay still in his seat.

Now, at the time I took offense to the whole Pledge ritual myself. While I stood, mostly not to make problems, I remained silent. No one bothered me because I did not draw attention to myself but I was secretly thrilled at my friend's act of intransigence. Not because I was ungrateful to America opening its borders to my grandparents who were refugees fleeing Nazi Europe but rather because I considered the whole exercise silly and contradictory.

First it has never made sense to me to pledge allegiance to a piece of cloth. If I were to pledge allegiance to anything it would be to the Constitution and the philosophy on which this nation was built. In fact I have taken an oath as an attorney to defend and support the Constitution and do so proudly.

But more paramount, it made no sense to me that a country that expresses its pride in individualism would feel threatened by some student choosing not to pledge allegiance to the flag of the United States. This country uses the concept of "freedom" as a mantra. It is not without good cause that America expresses pride in its freedoms: freedom in thought, freedom in religion and freedom in speech. But how is freedom advanced by the pledge? Public School are the largest welfare project under administrative control. The pledge is an exercise of mass verbalization that would not be out of place in a third-world dictatorship. The recitation proves nothing except for adherence to authority. It does not create good citizens, it creates automatons.

The whole pledge exercise reminds me of the scene in the life of Brian where the orator says "you are all unique" and the crowd repeats "we are all unique." My friend would be the halting voice following which answers, "I'm not."

Freedom of speech means nothing without the freedom not to speak. If one cannot dissent without fear of punishment then freedom is illusory. Whatever his motives, my friend's silent protest, and the fact that he was able to go through high school despite of it, speaks to what makes this country unique in the world and in history. It's too bad our teacher didn't understand that.

Of Obama's Court

It won't be too much longer till the confirmation hearings commence on President Obama's first nominee to the Supreme Court, Sonia Sotomayor. The lines of support and attack have been preemptively drawn and to date, at least, have been predictable.

By now, we are aware of Sotomayor's impressive resume: Her father died when she was 9. Her mother, a nurse, raised her in a housing project in the Bronx. Sotomayor excelled in school and went undergraduate to Princeton, graduating with honors. She went on to Yale Law School and started her legal career with the Bronx District Attorney's office. Eventually she became a Federal Judge in New York City where she currently sits. If confirmed she will become the first Supreme Court judge of Puerto Rican descent. (However, unlike conventional wisdom dictates, not the first judge of Spanish descent: That honor goes to Benjamin Cardozo who was a Sephardic Jew).

Detractors are suspicious of her sympathies. They have pointed to a speech she made at Berkeley in 2001 in which she said about cases involving discrimination, "a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.”

Additionally some have accused her of being a judicial activist pointing to comments she made at a speech at Duke Law School: "All of the legal defense funds out there, they're looking for people with court of appeals experience because it is...court of appeals is where policy is made...and I know, and I know this is on tape and I should never say that because we don't make law I know [audience laughter] ... um, I, okay, I know, I know....I'm not promoting it, I'm not advocating it, I'm, [audience laughter] you know [Sotomayor laughter] okay."

A 3rd avenue of attack is Sotomayor's her failure to offer an opinion in Ricci v. DiStefano, a highly political case which was blogged about in this column last month. The matter was heard when rumors were forming that Sotomayor might be on the shortlist of Supreme Court nominees should an opening arise. That case involves a white firefighter in New Haven, Connecticut who was denied a promotion despite scoring near the top on the Lieutenant's exam. The exam was thrown out because no blacks would have been promoted had promotions been awarded based upon the merited scores.

The Second Circuit Court of Appeals found in favor of Connecticut on the issue of discrimination, but in a highly unusual decision in such a case of political interest, did so summarily without offering an opinion. Critics point to that decision as a way of insulating Sotomayor from critics. The case has been since taken on appeal by the United States Supreme Court which should be issuing an opinion in the fall. Even if Sotomayor is confirmed, she will not be one of the judges who will be deciding the case.

Most of the criticism is smoke screen. Sotomayor has earned a reputation, from her days prosecuting criminals in the Bronx, and on the bench, as someone who is not easy on crime. In her remarks about being a "wise Latina" she was specifically speaking to the issue of discrimination lawsuits. She was not saying as some critics have suggested, that being a Latina gives her special insight in all cases. It is a truism that anyone's experience might give them insight that others do not have. The law recognizes this. That's why juries of disinterested lay persons are a fundamental part of our justice system. We have decided as a people that we want citizens who are not versed in the law, judged by other unbiased citizens of similar experience; a jury of one's peers.

As for the argument that Sotomayor sees nothing wrong with "making policy" as a judge. Well lets just get over this strict constructionist v. judicial activist nonsense. Perhaps the most activist decision the past decade was the Supreme Court's decision to end the balloting in Florida when George W. Bush and Al Gore were effectively deadlocked in the 2001 Presidential election. There is nothing in Constitution which takes the election of the President away from the Electoral College, nor from the States in deciding how to apportion its electoral votes. Yet the Supreme Court opted to rule as they did in deference to the country, as they put it.

Sotomayor was stating nothing that dispassionate observers do not already note. Sometimes interpreting law is the same as making it. The role of judges is to decide the gray. If everything was obvious there would be no arguments, no lawsuits and no need for lawyers or judges. But as the saying goes difference of opinion and belief is what make us human. It is the lawyer's job to advocate and a judge's job to weigh the equities, deciding what is fair and what is just.

It would be a huge shocker if Judge Sotomayor does not get confirmed. At this point it seems a foregone conclusion. It's not surprising that considering his background President Obama selected Sotomayor first. Nominees cannot be judged as a success or failure before they are confirmed, nor often, in their lifetimes. However my prediction is that if Sotomayor gets seated, as seems likely it will not only eventually be a source of pride for the Latina community nor even the Latin community as a whole but rather one which shows off the strength of the American Constitution and the American people.

Bloglines | Subscription Links

Bloglines Subscription Links: "

"

How much for a (former) car dealership?

The result was a foregone conclusion. The Administration had spent billions and was clear as to what it wanted. So the proceeding the other day in Bankruptcy court was a formality. Even the dealers who were being axed knew there was no hope but that did not stop approximately 25 lawyers representing fired dealers from around the country from pleading their case to Judge Arthur Gonzalez who let the lawyers for the dealers get their gripes on the record, and many pleaded their case for well beyond the time allotted to them.

The takeover by Fiat, a European auto-maker that has been seeking entry into the American market for sometime was basically a shotgun arrangement. The Obama administration essentially told Chrysler that they would not accept business as usual. They wanted more economic, more fuel efficient cars. Chrysler had received billions from the government in assistance but was told that it needed to change its ways. Fiat saw its opportunity. One of its demands was to restructure Chrysler's business by reducing supply. Fiat/Chrysler submitted a list of 789 dealers that would no longer be authorized to sell new Chrysler/Jeep/Dodge vehicles. These dealers amounted to approximately 1 in 4 of all Chrysler dealers in the United States.

Many of these dealers had expended significant sums of money into Chrysler's infrastructure. They not only bought vehicles from Chrysler; but also machinery, tools and parts that were only compatible with their vehicles. All of these materials would now be worthless. They bought into the Chrysler trade associations and the advertising budget on top of the franchising fee and now were being told they had to stop selling cars immediately.

Chrysler did allow these dealers to "reallocate" their unpurchased vehicles to authorized dealers but they could no longer sell new vehicles nor could they perform warranty or repair work as an authorized dealer on Chrysler vehicles.

On Tuesday the various lawyer complained to Judge Gonzalez about the unfairness of the situation. The complaining dealers included a dealership that was “the last of the original dealerships founded by the Dodge brothers 102 years ago.” A dealer who said he recently bought the franchise and spent millions, as required by Chrysler, only to get his franchise yanked. A dealer who said that the rejection of his dealership was retaliatory for an investigation against Chrysler with respect to “wrong-dealing” of which his dealership principal gave testimony. And there was a dealer who said Chrysler made an “implicit promise” that if he bought inventory, his dealership would be retained, he did, and it wasn’t. Although there was another dealer said he was rejected because he refused to make deals with Chrysler although he has the largest dealership in his county in Ohio.

There were dealers who complained that Chrysler's actions impacted minority dealers to a more significant degree, and as a result was biased and discriminatory. There was a dealer who said that Chrysler's plan was a health and safety issue because people living in remote areas serviced by a single dealer could not easily access an authorized dealer at times of recalls--health and safety issues are outside the province of Bankruptcy law. There was a dealer who argued that Chrysler's plan was a violation of due process since Chrysler, by taking billions, had essentially become an arm of the Federal Government and therefore subject to Constitutional laws with respect to eminent domain. There was even a dealer who argued that the proposed Fiat/Chrysler plan was an illegal anti-trust action because it was well known that Fiat had its eyes on the American market and therefore their collaboration was collusion of potential competitors. While some of these approaches were novel, none of them worked.

The main crux of the dealers argument was that Chrysler's decision amounted to poor business judgment since the ousted dealers would still be able to seek redress for their damages and by throwing them out of business Chrysler was putting themselves and their shareholders including taxpayers on the hook for millions of dollars more in damages. Further, they argued, that since warranties and purchase incentives go with the car and not with the dealers, Chrysler was reallocating, but not saving any money, by axing the 789 sellers.

After 5 hours, Chrysler had their turn to rebut with 1 lawyer going against the 25. His argument: Fine lines needed to be drawn. Chrysler understands that dealers are not happy but the purpose of bankruptcy law is not to make everyone happy. He said that the argument has hinged on the rights of the rejected dealers but does not take into account the right of the 2300 continuing dealers who have the right to use the Chrysler name. If other dealerships retain certain rights the value of their intellectual property will be diluted.

Chrysler further argued that it is not for the individual dealers to question Chrysler. Bankruptcy law allows a corporation use its own judgment. There was always a plan to evaluate what was best for the company. The policy has to be looked at as whole, not in 800 some odd individual circumstances. There were some judgment calls made but it was Chrysler’s call to make.

Judge Gonzalez did not seem happy. He asked both the Chrysler lawyer as well as the bankruptcy trustee for options. Chrysler's attorney was clear as to what he wanted. The trustee said that it was the judge's call: keep the status quo, which would result in Chrysler continuing to hemorrhage over $1 million dollars a day, money that belongs to the taxpayer, or allow the application to go forward either by allowing the rejected dealers to continue to do warranty work or not as Chrysler, Fiat and the Federal government all preferred.

In the end the judge signed the order that had been negotiated in advance. The termination of franchises was effective immediately. Dealers, some of whom who have poured their life savings into their franchises, must cease their new car sales, and repairs under warranty effective immediately. And yesterday (June 10, 2009), the sale to Fiat was consummated.

Judge Gonzalez said that he will post a decision along with the order, he has not yet, but I suspect when he does, it will have some sympathy towards the ousted dealers. Likely, they will not be left without any recourse. Chrysler will remain on the hook towards those they left behind. What this means is that we as the public will be paying. The final chapter has not been written and probably will not for years to come. By the way, General Motors is on deck.

The Role of Judges in Democracy: How Much is Enough?

Gay Marriage has been hailed as the latest rung in the aspiration for civil rights. It has also been used rhetorically as evidence that social mores have become anarchist; evidence that the world is no longer slouching, but on a run-away train toward Gemorrah.

Last Month the Iowa State Supreme Court unanimously ruled that the State must recognize same sex marriages under that state's Constitution. But it went beyond that. The Iowa court said "Basic fairness" requires that same-sex couples be afforded the same rights as couples who marry of opposite genders.

California's Supreme Court came to a different conclusion earlier this week. In California, the Court affirmed a propositional amendment to that state's Constitution restricting the definition of marriage to opposite-sex couples. That Amendment was enacted by majority rule of California voters last November.

While the media generally likes to concentrate on the trivial aspects of the juxtaposition of these decisions: Heartland Iowa takes a liberal view and sophisticated California taking a more Conservative approach the two opinions play on the nature of courts and the role judges in a democratic society. Specifically, what role should they have in balancing civil rights against majority rule.

There are some parameters we all agree on, or at least the vast majority. A proposal reinstating slavery would be viewed as beyond the pale. So would an amendment restricting inter-racial dating or a law providing that only Christians could be elected to public office. But with Propostion 8, it has become a legitimate question as to if there is no law specifically speaking to a rule, can the public invoke law at will? For instance, can the public in California prohibit circumcision, a requirement of Judaic and Muslim faith, on the grounds that it is cruel to children? Could the public forbid illegal immigrants from seeking medical care for non-emergency procedures?

The conventional wisdom from the various media is that Iowa's Court displayed a pragmatism of an aspiring middle America while California's court was hopelessly out of touch with the times. Putting aside the media's general sympathy towards liberal positions (excepting talk radio), the facts on the ground are a bit more fuzzy.

There is already a grassroots effort in Iowa to overturn that Court's decision by means of a Constitutional amendment in a similar vein to what a majority of California voters did last November. Iowa does not allow propositions to the Constitution in the way California, does but the issue will likely come up in the State legislature. Meanwhile in California the Court's decision almost read like an apology to the Plaintiffs.

The California Court made a narrow ruling. It said that gays who were married prior to the election of Proposition 8 would remain married because "it would be unfair and might even invite chaos to nullify marriages those couples entered into lawfully."

California's Supreme Court did not decide whether gay marriage is proper or not, it simply deferred to the democratic process.

In essence, this leads to all other sorts questions. Should civil rights ever be subject to majority rule? Should a Constitution be able to be amended by the mandate of a majority of votes? If civil rights and the Constitution is subject to what a majority of what citizens says it is, what is the purpose of even having a judicial branch of government? What is the proper role of judges?

The simple way of looking at Courts and the philosophy of judgment is by pitting the doctrine of "strict construction" vs. "living Constitution." That is, the idea, that the law is what the law says and what the law says is what was written and what it meant at the time it was written vs. the idea that the drafters of law could not have anticipated what society would be today and the law needs to be interpreted towards the needs and just goals as exist now.

The convention way to look at it is Conservatives are strict constrictionists while liberals believe in a liberal constitution, but in reality it is more complex than that. We saw that last month in a Supreme Court ruling on a 4th Amendment case involving the search of an automobile (see exparte advocate entry of April 23, 2009), the 4th amendment provides very liberal protections and a strict constructionist reading goes against the natural conservative proclivity in favor of deference to law enforcement.

With President Obama's proposal to nominate Judge Sonya Sotormayer to the United States Supreme Court, as a nation, we will be exploring these convergent philosophies over the next few months. While the issues involved are political, they are so much more, they say what we are as a nation, and what we aspire to be. If Judge Sotormayer was on the bench in California how would she have decided the Proposition 8 question before the Court? How active a role do we want judges to take in dealing with societal issues? Should there be a balance? And if so, what should that balance be?

A $5-million Accidental Advertsing Campaign

I love First Amendment cases. I truly do. First of all, the First Amendment is the most basic, and yet complex, the most fundamental, but also expansive law in the American Constitution. The right to Free Expression is the of paramount importance in a democratic society and it theoretically encompasses everything: How we express ourselves, what we say, what we do, what we wear. It includes the right to be heard and also the right not to speak. However it is not unconditional. Freedom by necessity has its limits, or as the late Supreme Court Justice, Oliver Wendell Holmes, Jr., put it "The right to swing your fist, ends at the point of another person's nose."

In 2007 American Apparel posted two advertisements featuring a clip of Woody Allen from his 1977 film Annie Hall depicting Allen in Chasidic garb with a long beard, side curls, and a black hat. It depicted Yiddish text as a caption using a phrase meaning "the holy rebbe." . Woody Allen did not give his permission nor was he paid for the use of his face. Last year Woody Allen sued on the grounds that his image was used without his permission. American Apparel responded that the ad was not meant to sell clothing but as a medium of expression. American Apparel argued in addition that Woody Allen's image is so tarnished by the scandal involving his step-daughter for all intents and purposes, Soon-Yi Previn, that his value as a spokesperson is significantly diminished.

The use of someone else's image can be a tricky area. The law recognizes the doctrine of "Fair Use" which essentially means that a person can be depicted without permission if the main purpose is criticism, comment, or news reporting. This is how the nightly news gets away with as much as they do. (Let's leave aside the role of ratings, how they correlate with sensationalism and how that generates advertising revenue for another day).

American Apparel tailored their answer as a First Amendment claim. Woody Allen's face was being used for satirical comment, not to sell clothes. A perplexing argument considering that his face was posted on billboards above major roadways in California and New York. I don't know how much A.A. paid for the ads, but I'm sure it was an awful lot of money for a public service announcement tailored not to make money.

In the end, there was much chest beating. There was much posturing. There were threats. Mia Farrow, Woody Allen's ex-girlfriend/psuedo-wife would be called as a witness. Nothing to strike fear like a scorned ex whose daughter is now the wife of the witness. But finally American Apparel folded using the old "My s lawyer made me do it" excuse. They settled the case for $5-million this past Monday.

Yes, it's true his insurance company presented the defense and paid the lawyer. American Apparel's lawyers surely made a recommendation. They would not be doing their job had they not. I'm sure American Apparel's CEO, Dov Charney, was told in effect, 'Woody Allen sued for $10-million and if we present this case to a jury he is likely to win and get fees and costs. Plus there will be a judgment against you.' But neither the lawyer nor the insurance company forced American Apparel to take the deal and Charney had to sign off on it. That's the way it works. Now, I don't know what American Apparel's insurance policy was, but if any judgment had come out in excess of the the company's policy, American Apparel would need to fork up the difference. So in the end the settlement, like the initial advertisement was American Apparel's business decision, and their business decision alone.

After all the posturing this this case had as much to do with the First Amendment as arson has to do with the freedom of expression of a pyromaniac. Dov Charney loves publicity. He built his company on it. He gambled that either Woody Allen was too publicity shy, tarnished or pre-occupied to challenge him. He bluffed, he lost...but he still got publicity and plenty of it, all across the nation...and for that he hasn't paid a dime. So one question remains: Was the advertisement and subsequent settlement worth it? Was this kind of saturation worth a $5-million pay-out?

Losing the Genetic Lottery

Jim Crow is alive and well. Not in Alabama, Georgia or Mississippi, but apparently in the Deep North; New Haven, Connecticut, specifically. The catch is, it's not African-Americans who are being held back. Rather it is a group of firefighers who had the misfortune of being born white. That is the plight of Frank Ricci.

His case was argued in the United State Supreme Court last week. Ricci, is a firefighter, a white firefighter. Or considering everything must be categorized these days, he is a white firefighter with a learning disability. By all accounts Ricci is good at his job. He has been with the New Haven fire department for more than 11 years and has a spotless record.

He decided to seek a promotion to Lieutenant. Because he is dyslexic, he quit a second job in order to have more time to study for the Lieutenant's exam. Additionally he paid $1,000 out of pocket for study-aids. And it seemed his efforts paid off. There were eight vacancies and 77 people took the exam. Ricci had the 6th highest score. Only 18 of the 77 candidates passed the test.

Problem was, of the eighteen passing grades, 17 of the applicants were white, and the other was Hispanic. None was African-American, and that was what New Haven was looking for. New Haven had a quandary. Their goal was diversity, but based upon the exam, diversity could not be achieved on merit, at least not racial diversity. No telling if there were any other firefighters with learning disabilites who passed the exam. But academic diversity was not what New Haven was looking for, so as the saying goes, New Haven threw out the baby with the bath water. Officials declared the test "biased"; apparently a catch all word meaning it did not achieve the desired results and no one was promoted.

Since no one was promoted, no one was harmed. That was the crux of New Haven's legal argument: Ricci was not discriminated against because everyone suffered equally. Apparently if we all fail, racial harmony is achieved. Failure is the great equalizer.

Problem is, and New Haven does not dispute this, if Ricci was African-American he would have been promoted. In other words, the test was rigged and when the desired results were not acomplished, New Haven decided the best option was to hurt those who succeeded, under what they were told were the rules. Frank Ricci did nothing wrong except lose the genetic lottery.

None of this is to say that diversity is not a worthy goal. New Haven is not alone in desiring that a cross population of races, and nationalities serve a diverse population. Such a goal is appropriate and worthy. But the outcome is meaningless if the results are fixed. As Chief Justice John Roberts put it last week, "Should the government get do-overs until (the result) comes out right?"

The original purpose of Affirmative Action was to root out discrimination, all discrimination. New Haven's answer hardly seems an effective way of achieving the goal. There is a eloquent simple saying I learned long ago, perhaps it still applies today. "Two wrongs don't make a right." Someone should tell the City of New Haven. I hope the Supreme Court does. Ricci v. DeStefano should be decided next month.

UPDATE: As predicted, this week Federal Prosecutors asked that charges against Steven Rosen and Keith Weissman be dropped when they determined they would not be able to successfully convict the pair for espionage. (See posting of 3/17/09). Prosecutors cited a judicial ruling that the government would have to prove that Rosen and Weissman intended to hurt the United States by passing along unauthorized information as an impossible hurdle to meet. The defamation case is proceeding.

What Was He Thinking?

Perhaps I'm a little sensitive about these things because I happened to be 2-blocks away when the attacks took place on the World Trade Center on September 11, 2001. But what the hell was the Government thinking when they authorized a plane that is from time to time used to carry the President to buzz ground zero the other day while insisting that the public be kept in the dark?

I get it. The function of the President is mainly symbolic. The concept of the presidency is the closest thing we have in this country to royalty and for whatever reason this country is enamored with the idea of Presidential celebrity. We may be independent of Britain, but we still share a common institutional DNA. For better or for worse, we may not label it as such, but here in America, we love our royalty.

In the past month our President has made conciliatory gestures towards Raul Castro, Hugo Chavez and King Abdullah. His advisors must be screaming in their sleep. I can envision it now: "Must....not....show....weakness...Immediate action is necessary!" And suddenly a great idea occurs, (at least to those from Chicago who didn't deal with the consequences of the 9/11/01 attacks first hand) 'Let's stage a photo op of Air Force One flying over the Statue of Liberty and the site of the former World Trade Center, all for the bargain basement cost of $328,835 according to Bloomberg News. The Presidency is restored...Hallelujah!'

In order to add mystique it is necessary to keep the operation top-secret. After all, anything is more important when it's called a secret. 'OK', they thought, ' we will tell a low-level operative, but under instructions not to inform the public, that way we can say that we publicized the event but it will still be kept quiet. After all the person we tell will listen because he is afraid to lose his job, and even if he might question the judgment of the directive, he will feel important and that will keep him loyal to the military directive.'

So it happens. The Mayor doesn't know...the governor doesn't know. And predictably there is panic in the streets. 9/11 is still raw in New York...believe me.

President Obama did not get the result he expected, at least not here. Now the Damage Control team is on the scene: A statement is crafted: "It was a mistake” said Obama, “it will not happen again.” Plausible deniability? Call me a cynic but this administration is based on the personality of Obama. I find it very hard to believe that anything gets by without, at least, his chief advisors being notified. Furthermore this is from a president that has made transparency a keystone of the administation.

Everyone is entitled to mistakes. I don't believe that Obama, or his advisors were being malicious. But since the President and many of his advisors are from Chicago, where the Sears Tower still stands upright, perhaps the administration didn't realize how touchy New Yorkers are about low-flying planes.

What's done is done. The President got his photo-op. But it's time for real work to take place, work separating the tangible from the ethereal. There is a sense that President Obama is different, and not just because of his race. That's not going to last if he relies on photo-ops and symbolism. People are aching for a Presidency that gets results. People want a restored economy, a controlled healthcare system. An effective educational system. A freer and safer world. If any of that occurs, even to any verifiable degree, photo-ops won't be necessary to prove the strength of the President.

A Bi-Partisan Liberal and Conservative Decision Finds That Original Intent Creates New Law

The U.S. Supreme Court turned back 85 years of precedent earlier this week and the surprise of it is that after 30 years of mostly Republican control of the Executive and Legislative branch we received a decidedly liberal decision affirming civil rights. Was this an activist decision or a reaffirmation of the original intent of the Constitution? One thing is for certain. It was an unlikely alliance that caused the result. John Paul Stevens, Ruth Bader Ginsburg, and David Souter--- generally considered liberal judges and Antonin Scalia and Clarence Thomas -- generally considered conservative, formed the majority. The result: the 4th Amendment lives, apparently.

The 4th Amendment is a part of the "Bill of Rights" and deals specifically with the right to be free from unreasonable searches and seizures. The way this works in practice is that absent certain exceptions, a police officer cannot search or use as evidence in court, property of an individual absent 'probable cause' that an illegal act has occurred.

In order to give this law teeth, in a series of rulings in the mid-20th century, courts applied an "exclusionary rule" so that evidence obtained absent a right to do so could not be used. Further, any evidence found as a result of illegally obtained evidence was considered "fruits from a poisonous tree" and "tainted" making it likewise unusable.

The result of the Exclusionary rule is that more than one defendant went free on a "technicality." A Constitutional rule is apparently a technicality when the result is unpopular. However this technicality was incorporated by design; thus the aphorism "better 100 guilty men go free, than one innocent man go to jail." As you might suspect, freeing the guilty is not popular for politicians, police officers, or the public and after the civil rights revolution of the Mid 20th Century many felt that the balance had shifted away from the public's benefit to the advantage of the sociopath.

Starting around 1980 courts started limiting the Exclusionary Rule. The Supreme Court took a survey of cases involving illegally acquired evidence that had the effect of limiting the effect of the exclusionary clause. The Court carved out exceptions for the need of a warrant where the search was made "incident to an arrest" in order to secure the scene, where police had made a "good faith error" or where there were "exigent circumstances" which involved either the risk that evidence would be lost, destroyed or where the public or police officer's safety was at issue.

One of the main exceptions to the 4th Amendment was widely known as the "Automobile Exception."

The first articulation of the Automobile Exception was articulated in a 1925 case: Carroll v. United States where the Supreme Court decided that an officer could search a vehicle without a warrant as long as he had probable cause to believe that evidence or contraband is located in the vehicle. The reasoning was based upon an articulation that there is a lowered expectation of privacy in a vehicle, that vehicles are licensed and therefore regulated by the States and by the nature of vehicles themselves. Since they are mobile a delay requirement for officers to secure a warrant would lead to an increased likelihood of destruction of evidence.

In United States v. Johns, a 1985 case, the U.S. Supreme Court extended the automobile exception to even vehicles that had been seized and in police custody .The court stated, “A vehicle lawfully in police custody may be searched on the basis of probable cause to believe it contains contraband, and there is no requirement of exigent circumstances to justify such a warrantless search”.

After 15 years of cases severing the effect of the 4th Amendment there were articulated discussions regarding whether the 4th amendment had any effect or whether the exceptions had swallowed the rule. I remember lectures in law school as to whether considering the advance of technology that there was ever a reasonable expectation of privacy and considering the exceptions for good faith, there was ever any basis for excluding evidence whether it was obtained with probable cause or not.

Well, this week we found that the civil rights balance has adjusted. In Arizona v. Gant, announced on Tuesday, the Court ruled that the automobile exception is not absolute. Rodney Gant was arrested by Arizona police for driving with a suspended license. He was handcuffed, and locked in a patrol car before officers searched his car and found cocaine in a jacket pocket. There was no safety issue for the officers nor could the car have been driven from the scene. Nothing prevented the police from obtaining a warrant, yet because the arrest involved an automobile and was incident to an arrest, the police did not.

While not absolute, that is not to say that the automobile exception is dead or even that police cannot do a search without a warrant anytime a person is arrested in a traffic stop. Rather, the Court is incorporating a balancing test which takes into account the mobility of a vehicle but does not make it the paramount consideration. Where there is time and no risk that evidence will be lost a police officer has the obligation, as it states in the 4th amendment to obtain a warrant. Perhaps the most important sentence of Tuesday's decision was the reaffirmation of a decision from Katz v. United States. A 1967 (!) decision at the height of the Civil Rights Revolution, "Warrantless searches 'are per se unreasonable', subject only to a few specifically established and well-delineated exceptions."

Over the next few months we will learn whether this is a yield sign or a U-turn for searches and seizures. The same day Gant was announced the Supreme Court heard arguments regarding another case out of Arizona involving a 13 year old student, Savana Redding. Redding, was made to strip down to her underwear at school because a fellow student erroneously gave a tip to school officials that she was holding ibuprofen, basically Tylenol, in violation of the school's drug policy. Was the search a reasonable response to the enforcement of drug policy or intrusive, traumatic and performed without probable cause in violation of the 4th Amendment? Stay tuned.

And What Else Aren't You Telling Me

Great article in the New York Times about how technology is turning the rules of evidence, which have been established over the past 400 years, on its head.

Its a standard admonition from a judge to jury. Do not read any newspapers, watch any television, or investigate for yourself. Do not discuss the case with fellow jurors, or talk to anyone about the matter on which you are deciding. The purpose of the instruction is to ensure that a case is solely decided on the admissible evidence permitted in the court room by an untainted, unbiased and impartial jury.

Problem is that in this day of the Blackberry and iphone, accessing information has never been simpler. Go to any court room, any day and you will see just about everyone: clerks, lawyers, jurors, even judges plugged in and surfing the net. Whether they are checking emails, texting, updating facebook status, Twittering, or just playing games or catching up on headlines the courts are not excluded are saturated with interconnected activity.

Last week the conviction of former Pennsylvania state senator, Vincent J. Fumo was threatened, and still might be on appeal, because one of the jurors was using Twitter to send messages to his followers about the trial. He was questioned by the judge and the attorneys and insisted that no one passed any information to him about the case so the judge allowed the guilty verdict to stand. But how easily could it have been otherwise? that question will be dealt with on appeal.

In a less publicized case, a Federal drug trial in Florida was overturned when a juror was confronted, and admitted having done independent on-line research, in violation of the rules of evidence and the judge's instructions. However in a twist showing the pervasiveness of the potential problem, 8 of the other 11 jurors admitted having done the same thing. An isolated incident? Perhaps. But perhaps not.

My perception is there has always existed a frustration among jurors that they believe they are not getting a full story and that it is not fair to them to exclude what they perceive to be pertinent information. Often it is true that they are not given all the details. In the case of a criminal defendant, his past crimes cannot come into evidence unless he testifies and only then for the purpose of attacking his credibility. But jurors can't ordinarily know about past bad acts because the rules say a person has to be tried on the charges before him and not because a thief is always a thief. The rules make sense but that doesn't make it any less frustrating.

The bias today is towards information -- all information and the more, the better. People go on WebMD before visiting their doctors. They go to Edmunds or carfax before buying a car and if they can access information about a matter in which they could very well be deciding someone's freedom the temptation to find out more than what hired representative is telling you can just be too much.

The legal profession generally does not like change, certainly not quick change. The legal principle of stare decisis, letting established law stand, is well grounded and well meaning but right now the hands of judges are being forced. The legal system is not going to be able to ignore the impact of technology much longer. It's one thing to say that all outside influences should be ignored at a trial; it's another to ignore reality. And right now the reality is the jurors want to know more. Somehow we need to find a way, with fairness for all, to give it to them.

Rosen: A Modern Purim Story

It seems almost too much of a coincidence that the complaint was filed just prior to Purim. Last week a modern day Purimspiel, not on stage, but in pleadings, was filed in District of Columbia Superior Court. While it by no means is the final chapter, the story appears to be reaching an end, and it is fascinating that Steven Rosen seems to be positioning himself as Mordecai seeking exoneration not through hanging, but through judgment.

Our story begins in August, 2004. when it was first reported that there was a spy in Washington delivering top military secret information to Israel. It turns out that there were three alleged spies, two employees of the lobbying group, AIPAC, an Israeli advocacy group based in Washington and a staffer from the Department of Defense.

Former AIPAC employees Steven Rosen and Keith Weissman were accused under the seldom used Espionage Act. The act's purpose is to prohibit Americans from taking classified information that could be used to harm the United States and giving it over to foreign governments. In Rosen and Weissman's case that were accused of meeting with Lawrence Franklin, a Department of Defense staffer, who gave Rosen and Weissman information about America's military, intelligence and defense strategy in dealing with Iran. Rosen and Weissman are accused of turning the information over to Israel.

At first AIPAC stood by their employees. According to Rosen, he even received a performance bonus in March 2005. However AIPAC was under heavy pressure from the feds. Their offices were raided and their records were subpoenaed. There was talk of an indictment against the organization and possibly they would even be charged as a foreign agent. AIPAC took the path of least resistance, they caved. In April, 2005 AIPAC fired Rosen and Weissman and issued a statement that they were fired because thier activities "did not comport with standards that AIPAC expects of all its employees.”

In the meantime Rosen has been fighting back on his own, and without the help of AIPAC, and winning round after round against the Federal Government. First, he won the right to call high government officials as witnesses at trial. Then it was ordered that the Government must answer information subpoenas regarding foreign policy strategy and directives. If the case ever gets to trial it is quite possible that Condoleeza Rice and Paul Wolfowitz will be required to give testimony under oath.

Most recently Rosen won an appeal requiring the Government to prove that any information passed was a "closely held secret." That creates a catch-22 for the government. How do you prove top-secret information in open court without exposing the secret? On the other hand part of the defense's argument is there was no information turned over that was really closely held. So far the government is reluctant to expose their case.

Like Megillat Esther, our story takes a detour. Charles Freeman, a former Saudi Ambassador was named earlier this year as the nominee designate for chairman of the National Intelligence Counsel. He seemed to be a sure-shot confrimation. Which would make him a chief advisor to President Obama. That was until Steven Rosen, independent of AIPAC and despite criticism from the usual suspects, pointed out that Freeman in his estimation was an Arab apoligist and an Israel basher. There is no doubt that he is a huge fan of Saudi Arabia and said of the Saudi King, "I believe King Abdullah is very rapidly becoming Abdullah the Great," Freeman vehemently critcizes Israel's policy in dealing with its Arab neighbors and the Palestinians. Freeman has even gone so far as to say that America's relationship with Israel was the main cause of the Al Queda Terrorist Acts on September 11, 2001.

Last week Freeman was not designated chairman but rather 'resigned.' But he wasn't content to 'resign' for the typical 'personal reasons.' He chose to elaborate, and as is typical with Israel haters, it was the fault of the Jews: Freeman wrote:

"The tactics of the Israel Lobby plumb the depths of dishonor and indecency and include character assassination, selective misquotation, the willful distortion of the record, the fabrication of falsehoods, and an utter disregard for the truth."

And Freeman son, Charels Freeman chimed in as well,

"His appointment is being challenged these days by a small cabal of folks that believe first and foremost in the importance of allegiance to Israel as a core U.S. priority. Putting aside my natural instinct as a son to want to punch some of these guys in the face for some of the things they are saying about my father, for heaven's sake, I'm more deeply angry about the lack of guile some of these people have."

Yes, a 'cabal' with 'guile' who show an 'allegiance to Israel', but mind you we are not talking about Jews. Just 'the Israel lobby.' The Freemans were apparently talking about those other supporters of Israel. To the Freemans' way of thinking, supporting Israel as a core U.S. priority disqualifies one from being 'objective' on America's role in the middle east. But blaming Israel for terrorist acts exclusively involving Arabs makes one the most appropriate candidate for the head of the National Intelligence. "And the Ten Sons of Haman were hung on the same gallows of their father" (Esther 9:7).

The main theme of Purim is that the Jews were able to turn their fate upside down. On March 2, 2009, less than a week before this year's celebration, Rosen made a stab at completing his personal exoneration. He filed suit against AIPAC to clear his name and accused the organization of doing the government's bidding. Rosen asserts that his actions were directed by AIPAC. He maintains that he provided his superiors with regular briefings about his efforts to gather information from government officials. He goes on to talk about AIPAC's information gathering techniques and its role in international diplomacy. He threatens full disclosure.

Truth be told, don't ever expect to see Rosen v. AIPAC to get to trial. Both sides have too much to lose and without any personal inside knowledge, I have a feeling that both sides would prefer to keep their secrets, well, secret. I expect the case will settle, although for far less than the $11 Million that Rosen is demanding in his complaint.

In the meantime, trial on the Government's case against Rosen and Weissman is scheduled to open on June 2. It's already been delayed for more than a year. My guess is it will eventually be voluntarily discontinued. One more nail in the secrecy policies of George W. Bush. I get the sense an Obama administration would rather that this case goes away. So once again, let it be said: they tried to kill us, we survived, let's eat.

This One Goes to 11...The Tale of the Worst Man Ever to Live

So Bernie Madoff is off to the slammer. Go to jail, go directly to jail, do not pass go, do not collect $200. Well, he's already made off with the "go" money, that plus an estimated $64,999,999,800 according to the charges to which he pleaded guilty earlier today.

We won't have Bernie Madoff to kick around anymore. Jail isn't good enough. He's going to solitary...he's facing 150 years...he's going to rot. He's done. Elie Wiesel, the iconic Holocaust survivor, the author of 'Night' lost a reported $15.2 million through his foundation to Madoff. As a colleague Jonathan Fox put it "Stealing from Wiesel is like stealing from the Dalai Lama." If you believe in that sort of thing stealing from Elie Wiesel is your e-z pass to hell. Weisel called Madoff a "sociopath" who should spend the rest of his days staring at continuous slide projections of his victims.

We get it, Bernie Madoff is officially the worst man ever to live in the history of the world. He destroyed the economy of the western world. He has eliminated the New York Mets chances at a pennant run this season, by stealing from their owner Fred Wilpon, and he is a shonda for the goyim, even if the majority of his victims were fellow Jews.

And get this. It's all Bernie, it's all his fault, and only his fault. Everything! He was not charged with a conspiracy, so apparently no one else knew. $65-Billion and Bernie cooked the books all by himself. Not with the help of his wife who was busy mailing out millions of dollars in Chanukah gifts to friends and family (where can I get friends and family like that)? Not even his children who were shocked, shocked that their father's business, whom they were executives in, was not in reality a legitimate trading room. And not the employees of Bernard L. Madoff Investment Securities LLC , the 6th largest investment business in Wall Street prior to the end.

So now that we know how the story ends, the question remains, how could this have happened? I'm sure that tale will be told over the upcoming months if not years but you can start with the following principles:

1) THE SPINAL TAP PRINCIPLE: Most of Madoff's investors had no clue and no care what it was they were investing in. The genius was the simplicity. Those who understood the math, apparently could tell Madoff was cheating rather quickly. People like Harry Markopolos. Markopolos explained in a 60 Minutes interview that he figured out Madoff was cheating in "about 5 minutes." He tried to warn the SEC several times but they "just didn't care." There were others (I would bet more than we will ever know) who invested in Madoff because they assumed he was cheating. But most investors did not know what they were doing. They trusted Madoff, completely. We are talking about educated people, people who many assume were sophisticated wealthy financially involved people. But they did not know, even if they pretended they did. And Madoff thrived off of the ignorance. So long as the statements went out showing what it turns out were manufactured bogus huge profits, even in an impossible down market, these people were blissfully ignorant. They thought they were doing fine, they bought the investment because they liked the amp with the shiny dials. While other companies had standard amps, the madoff model went to 11.

2) THE BILLY JOEL PRINCIPLE: They say that Madoff would often tell people that they were not 'worth' his time . Although at the time of his arrest, Madoff's records indicated he had approximately 4,800 clients, each client felt that their access to Madoff was part of a secret fraternity; they were part of an exclusive club. Being with Madoff put you on the inside, and it felt good to be the big shot, the master of the world over all those other suckers . This was one of the strongest weapons Madoff had. Whenever one of Madoff's clients recommended him to a friend, a neighbor, a colleague, a business associate. Madoff was already vouched for and the new victim felt like he was in with the in crowd. At that point the sale was made and the scam could continue with fresh money.

3) THE IRVING BERLIN PRINCIPLE: When it comes down to it. Bernie Madoff represented the American dream. Child of immigrants. Grew up in middle class Queens. Product of public school. Worked hard, started a business and struck a fortune. He looked like your neighbor who made good. And people wanted to be with him, people wanted to be like him.
He personified what we are told from our first day in school. If you do well in school, if you work hard you can be anything you want. You can have anything you want. It doesn't matter who your parents are or how much money you grew up with. It doesn't matter what your race and religion is. Everything is up to you. God bless America.

Perhaps, in the end, admittedly with a pinch of cynicism and a dash of restrospect perhaps there is some truth to the Irving Berlin Principle. Bernie Madoff, if we think about it, maybe was just like us a little more than we'd like to admit. This nation is leveraged to the hilt. We have more debt than any of us can ever imagine, the real estate market has collapsed, the stock market is in free fall, the banking industry is being propped up, the auto business is on a respirator and the government seems powerless to fix any of it.

The program everyone points to as a model for the future is the New Deal. The iconic program from the New Deal is social security, which is essentially a nationwide ponzi scheme. Afterall, social security's model is that a current workforce pays for a former workforce's retirement. Take from present investors to pay for the past. It works so long as you have a fresh pool from which to draw. Once new money dries up the program collapses. If Madoff had found a new pool he could continue being the 'model philanthropist' that the conventional wisdom thought he was 6 months ago. Let's be clear, Madoff's acts were dispicable, hypocritical and awful. They are also a cautionary tale.

It's a Marvelous Morning(?) For a Moondance

I woke up this morning to darkness, as I will wake up tomorrow morning to darkness, and the next day and the day after that. Each morning during the work week for the next several weeks it'll be dark. This morning I looked towards the sky through my closet window and could clearly see the moon. Ah, the wonders of "Daylight Savings Time." The time of year where we 'spring' (winter?) forward to gain a manipulated hour of sunlight.

It is apocryphal that Benjamin Franklin is the father of the concept behind Daylight Savings Time (DST), however when the man most famous for flying a kite in a lightning storm (also probably apocryphal) wrote of shifiting the clock, it was a satire. (He talked about conservation of candlewax and taxing shutter makers). Aux auteurs du Journal" (in French). Journal de Paris (117)

DST was not instituted for the first time in the United States until 1918. It was repealed a year later and did not return until 1966. During the 1970's, during an energy crisis, it was proposed to institute DST year round, and in fact, in 1973 it was. However it soon became apparent that there was no benefit to dark winter mornings where the sun would sometimes, not appear, depending on the time of year till 9:00 A.M. or later.


Tomorrow sunrise in New York City is 7:17 A.M. Buses in school districts all across the region are already on route at that time. Many kids are waiting at bus stops in the dark, others are walking to school in the dark. Without the benefit of daylight, accidents are inevitable, as are criminal opportunities.

While the safety issue has always been of subordinate concern (although I'm not sure why that is or should be) to the goal of conservation, it is fanciful to believe that significant energy savings are occurring while it is still winter. While there is certainly a diminished need for electricity and fuel during daylight hours, in geographic locations where there are cool temperatures and people are waking up in the dark, the conservatory effects of DST are negated. Most people need to see and most people don't like to freeze.

While its dark, the morning commute begins. Headlights must be illuminated. In our cities and suburbs congestion is already forming. It's safe to assume that most people wake up at least 30 minutes before they start their commute. So as people are waking at 6 or 6:30, a time when a week ago there would have been natural sunlight (and will be again in about a month) , people are using more electricity and perhaps turning up the heat, in order to get out of bed and getting prepared for their day.

Energy saver? More like energy shifter. The energy that might have been consumed in the evening is now delayed an hour, but it is certainly used in the morning, in abundance. In fact a California study confirmed that Daylight Savings Time as currently implemented does not have a noticeable effect on conservation. Adrienne Kandel; Margaret Sheridan (2007-05-25) (PDF). The effect of early daylight saving time on California electricity consumption: a statistical analysis. CEC-200-2007-004. California Energy Commission. http://energy.ca.gov/2007publications/CEC-200-2007-004/CEC-200-2007-004.PDF. Retrieved on 2008-03-08.

Even Congress can't seem to ever make up its mind: First the clock shift in 1918, again in 1966. Then full year DST in 1973, followed by a return to 6 months and 6 moths in 1974. It stayed that way till 1987 when DST was extended from the end of April to the beginning and lasting until the end of October. In 2007 it was extended again. DST currently goes from the 2nd Sunday in March till the first Sunday in November. The time shift in 2007 wasn't even extensively debated. It was passed as a minor provision in a comprehensive piece of legislation. The Energy Policy Act of 2005. How can you debate policy when its titled 'Energy Reform'? Who wants to be labeled as anti-conservationist? Incidentally, the original draft was set to extend DST in 2007 all the way till Thanksgiving which would have plunged us back into darkness until mid-morning thoroughout November mornings.

As it stands now DST is the time for 8 months out of the year. In fact, perhaps the DST should be considered the new standard. How can a time be 'standard' when it is only used for 4 months?

Look, I love long days and early evening summer daylight as much as anyone and I love the idea of saving and conserving energy. DST certainly has its time. I just cannot believe that its goals are achieved when the thermometer is still barely cracking freezing and even the roosters haven't signaled the sunrise. I wouldn't mind sleeping an extra hour in the dark and if it means that it's unpleasant to go outside when I come home in the frigid evening, I'm willing to make the sacrifice... it would be a sacrifice that only would need to be extended for a few more weeks when it will be warmer anyway.