Thursday, June 30, 2011
Obama's airplanes and hedge funds fairy tale
This piece by John McCormack in the Weekly Standard, which is based in part on this piece by ABC News' Jake Tapper, is a superb short-form breakdown of the $418 billion in tax increases that Obama wants as a condition for going along with any significant spending cuts.
It's stunning — shocking, appalling — to compare the numbers to Obama's demagoguery.
Obama wants Americans to believe he and his party are only trying to close loopholes and make bad guys contribute their fair share. The numbers first expose, then destroy, that fairy tale.
If we're to demonize corporate jetsters, that will bring in all of $3B.
The price of being in the "hedge fund" industry will shoot up another $20B.
We start to get to significant numbers, finally, with "$45 billion by eliminating oil and gas company subsidies." Okay, so now our national demons are supposed to be those who work and invest in the American energy industry? That would be the same industry we'd like to see make America more energy self-sufficient, as a national security matter, wouldn't it? We want to punish our domestic energy industry so that, what, foreign energy companies can do better in comparison? The same industry Obama has already punished brutally through restrictions on off-shore drilling, and offshore and onshore drilling in Alaska? The same industry whose shareholders include vast numbers of private pension funds, mutual funds, 401k plans and IRAs, and retirees? And the same industry that happens to be most concentrated in the states (like Texas) least likely to vote for Obama in 2012? So are we to hope that our energy industry (and the jobs it represents) are to be crippled? Or are we instead to hope that these $45 billion in tax increases are simply passed along to American consumers in higher energy costs?
I'm thinking that $45B in tax revenues is a drop in the national bucket of our overal fiscal situation, but when targeted as punishment to be inflicted upon a single critical industry, it's significant enough to do some serious and long-term damage to the national economy, quite probably in a substantial multiple of that $45B.
Even in the face of a fragile and stagnant national economy with massive unemployment, Obama wants to add almost a third of a trillion dollars in new taxes. Obama wants to impose those hundreds of billions in new taxes not just on billionaires, or on millionaires, or on oil companies or hedge funds or jet owners — but on ordinary American individuals who earn $200,000 and couples who earn $250,000. We're going to punish them by restricting their deductions for some seriously antisocial fat-cat behavior: owning their own homes and making charitable contributions. The nerve of those filthy rich quarter-millionaires!
That's an income level which would fairly be considered "handsome" in a place like Houston. But it would be middle middle-class in many American cities with much higher costs of living. And all over America, that's gonna hit lots of middle-aged, utterly middle-class couples with college-aged kids. That's gonna hit a huge percentage of small business owners. That's going to hit two-income couples comprising teachers and nurses and firemen, bank assistant managers and car salesmen, farmers and bookkeepers and lab techs and QC analysts and ... well, pretty much the most individually productive people in the country.
The effects of these tax increases won't be measured in missed meals, no. But those effects will be measured in postponed or abandoned dreams-come-true that ought to have come true, and could have and should have: Dreams of hard-working not-rich people. Dreams whose realization oftentimes would've supported or even created jobs for quite a few very-not-rich people.
And what comes next? Do the math on the future interest costs of the borrowing to support these deficits. Taxing those who make merely $200k quickly stops making even a dent. And so next it will be individuals making $100k, and couples making $150k, whose taxes must be increased. And so on. It is mathematically impossible to tax our way out of this problem. That's a spiral down into national bankruptcy.
So Obama needs a class war to divert attention from all that. The pool of enemies who must be punished, those who must see more of their wealth confiscated to feed the government's maw, is expanding. If your family isn't in it yet, you may be on the edge, or you've been aspiring to be in that territory, or you at least know many families who are — families whom you've never before thought of as "rich," much less "evil" and needful of national punishment.
One would have to be not only mathematically challenged, but utterly innumerate, to believe Obama is being candid in the way he's trying to sell these tax increases. It's not just a regular smoke-and-mirrors trick. No, Obama's trying to knock us unconscious by beating us over the head with the mirrors, and to force us to inhale so much smoke that we pass out or hallucinate.
If you can't see through this blatant class warfare to recognize the economic reality beneath it, you really ought not be trusted with a credit card or a checking account.
Paul Ryan is right: Obama and the Dems are entirely committed to the notion of a declining America, ever more thoroughly taxed and regulated, compelling shared scarcity as we become just another country — another Belgium, maybe another Greece.
We've got to insist on better. We need a GOP presidential candidate who can stand toe to toe with Obama while calmly, methodically, and accurately exposing his lies and his exaggerations, whether it's on taxes, spending, health care, government regulations, or foreign policy.
Why presume that, in Libya, if we break it we've bought it?
Regular readers will know that I'm a huge and consistent fan of former federal prosecutor Andrew C. McCarthy. As the successful prosecutor of the Blind Sheikh for the first World Trade Center bombing, McCarthy is perhaps the best qualified and most clear-eyed commentator on the disastrous Democratic strategy of treating the Global War on Terror as a matter of domestic American criminal law, to be addressed as law enforcement (instead of war) and followed up in civilian courts. But he's a perceptive speaker and writer on foreign policy and terrorism issues in general. He's just a very smart and eloquent guy, and I've been gratified to correspond with him from time to time in the past and to link his writings here.
In a post today at NRO's The Corner, Mr. McCarthy makes a number of excellent points about Republicans and Libya. I commend it to your thoughtful attention. But I find myself in reluctant disagreement with some of his conclusions, which prompted me to leave the following comment there (reprinted here with light editing for clarity and without block-quoting):
Mr. McCarthy, you've made a number of fine points here, but with due and genuine respect, you're confusing things that ought be kept straight.
All of what you wrote about Kadafi's history is correct and incredibly pertinent. His history has been to use Libya's vast oil wealth as a state supporter and exporter of international terrorism, of which the U.S. has been the chief target.
You're also right on the mark about the weakness of his "conversion" and "cooperation." That it was insincere and temporary doesn't mean it was unwelcome, just that it was unreliable. But any possibility of his continuing to justify the civilized world's forbearance, however, evaporated when he turned heavy weapons on his own population. Kadafi has violated his parole — not in the sense that word is used in our civilian criminal justice system, but in its original sense of a condition upon which an enemy who's surrendered in war was permitted to go free on continuing condition that he remain peaceful.
It astounds me that you can know, and articulate, all that history so well and yet insist that there are "no vital U.S. interests at stake."
The U.S. doesn't have a vital interest in protecting Libya's civilian population, merely a humanitarian interest; I would agree with you, I think, that such humanitarian interest is insufficient to justify American military intervention.
But we clearly, obviously have a vital interest in ensuring that Kadafi is now removed from power. We simply cannot permit this oil-funded terror-exporting again-out-of-control madman to remain in power, because as soon as the boot is off his neck he will instantly return to using Libya's oil wealth to acquire WMDs (a la the Pakistanis, the Norks, and soon the Iranians) as a guarantee against further American or western intervention.
You seem to think the determination of whether we ought to remove Kadafi from power — to effect regime change — depends in turn upon whether we wish to support the particular "rebel" forces who are, mostly independently, trying to oust Kadafi. Those issues must be analyzed separately.
It's entirely possible as a logical matter — and I believe it is the most sound weighing of competing concerns — to conclude that we have a compelling American interest in changing this regime without necessarily also having a compelling interest in what comes after.
Nothing but our own hypertrophied sense of overarching responsibility, our own sense of ourselves as "good guys," says that we have any responsibility to rescue the Libyan populace from what comes after Kadafi.
Contrary to Colin Powell's famous pronouncement, we can break it without buying it. We can take out Kadafi and walk away. Certainly for all of world history before WW2, that was among the options for conquering nations. We could take out Kadafi without decimating Libya's civilian population or destroying its infrastructure; we've no need, nor appetite, for the earth-salting, mass-executing, and enslaving tactics the Romans used against the Carthaginians on these same North African shores.
What ought to happen is that we use our superior military capability — especially with regard to precision use of force with less collateral damage than our NATO allies can limit themselves to — to take out Kadafi, and then dump the result into the laps of our NATO allies, especially the French and Italians (who have the strongest historical interests in Libya) for such nation-building exercises, if any, as they deem justified by their then-existing vital interests. Their continuing interests are likely to be greater than ours because they are the traditional and logical (logistical) market for Libyan energy production. And proximity, geography, and history all combine to make supervising the birth and infancy of a new regime in Libya a more limited and feasible task for them than the same process in Iraq or, especially, Afghanistan, has been for us.
Now of course, it may turn out that despite our NATO allies' efforts, or because of the lack thereof, Kadafi's successors turn out to be as bad or even worse than he's been. No one should try to sell any scenario for what America should do now as implying any guarantee that we won't have to effect regime change there again in the future.
But frankly, showing that we can (which everyone now knows) and will (which nobody now believes) decapitate a regime and then (mostly) walk away from the results might be a really good and cost-effective way to influence regime leaders not just in Libya but elsewhere.
We should play to our strengths. We are exceedingly good at blowing up bad guys without killing very many of the innocents with whom they surround themselves.
You seem to think this inevitably has to become a sustained, expensive counter-insurgency or counter-terrorism effort of the sort in which we've engaged in Iraq or Afghanistan. That's just not so.
Think of it not as nation-building, but a grand SWAT-team raid, or an exercise in removing a rabid animal from a populated area. Obama may not be capable of that mental flexibility, but you certainly are.
With apologies to Cato the Elder: Kadafi delenda est.
Thank you, Charlie from Bellaire Air Conditioning (a reliable and efficient Houston company)
This post isn't likely to be useful to anyone but my neighbors in southwest Houston, particularly in the Bellaire-Meyerland-Sharpstown area. But for their benefit, in this and future summers, I have this first-hand report to share:
Sometime between 6:00-8:00 p.m. last night, my air conditioner stopped working.
I instantly broke out in a full-body sweat. Even before it had gotten hot inside the house, I was panicked — imagining that I might well have to wait until after the July 4th holiday weekend before I could get it repaired.
Shortly after 8:00 a.m. this morning, I phoned Bellaire Air Conditioning and Heating, "a family owned and operated business serving Houston since 1968." It's an authorized Trane dealer (which corresponds to my AC system), and it had excellent customer reviews on the web — plus it's only a few blocks from my house. I was favorably impressed with the company from my web research, including the contents of their very professional website, and from my initial phone contact to report my problem.
By 10:15 a.m., I'd received a call back from their technician, "Charlie" (whose surname I neglected to get), advising he was en route. When Charlie arrived a few minutes later, he was polite and to-the-point. Even my dog liked Charlie.
By 11:30 a.m., my AC was fixed and, indeed, performing much better than it had before it broke down.
I doubt that Bellaire Air Conditioning and Heating — or any business of their sort — can guarantee that kind of turn-around for every customer all the time. But I was very, very impressed. And if my blog has earned any credibility with search engines since I started it in 2003, I'll be quite pleased if this endorsement scores high in any search results for reliable and efficient Houston air conditioning repair companies. Bellaire Air Conditioning will certainly get my future business, and I'll have no trouble remembering the company URL — bellaireair.com.
Thanks, Charlie. I hope you have a great Fourth of July.
"Shut UP, you Texans!" explained Sen. Boxer in a demonstration of the "new civility"
As a general rule, California Democratic politicians aren't fond of Texas or Texans. But this bit of hyper-partisan hyper-rude behavior from Sen. Barbara Boxer (D-CA) — denying Texas senator John Cornyn an opportunity to participate in a Senate committee hearing on proposed EPA power-plant regulations that directly (and massively) affect Texas — may set a new low in Congressional pettiness, at least since the caning of Sen. Charles Sumner in 1856. (Hat-tip Instapundit).
I'm well acquainted with many people in California who are wracked with frustration over their state's fundamentally unserious and self-destructive politicians, so I'm certainly not imputing Sen. Boxer's pettiness to everyone who lives there. But stunts like this only make the political leaders of once-proud California seem even more pathetic and out-of-touch. In the same way that the Ottoman Empire was once considered the "sick man of Europe," or that sunny Greece has become the modern poster-child for European fiscal fecklessness, California is going to embarrass us all over the next decade — and their situation is sure to get a whole lot worse before it even starts to get better, because they're still ignoring the First Rule of Holes.
Tuesday, June 21, 2011
Beldar scoffs at Ackerman's notion of a magical priesthood of special government lawyers
His bio page at Yale tells us that Bruce Ackerman is the "Sterling Professor of Law and Political Science at Yale, and the author of fifteen books that have had a broad influence in political philosophy, constitutional law, and public policy." Prof. Ackerman has credentials out the wazoo, but there seems to be something very wrong with his basic understanding of government, lawyers, and government lawyers. As part of an NYT op-ed decrying Pres. Obama's defiance of the War Powers Resolution, and in particular on Obama's refusal to accept and follow the advice of the Office of Legal counsel with respect thereto, Prof. Ackerman wrote this:
If the precedent Mr. Obama has created is allowed to stand, future presidents who do not like what the Justice Department is telling them could simply cite the example of Mr. Obama’s war in Libya and instruct the White House counsel to organize a supportive “coalition of the willing” made up of the administration’s top lawyers. Even if just one or two agreed, this would be enough to push ahead and claim that the law was on the president’s side.
The premise of that last sentence is spectacularly wrong.
Prof. Ackerman seems to see the government lawyers advising the President as some sort of official priesthood whose special blessings are essential prerequisites to the legitimate exercise of presidential power under the Constitution. And if the wrong priests are being relied upon, Prof. Ackerman seems to believe that this President's actions, and those of future Presidents, may become some sort of legal heresy. Ackerman scolds: "Mr. Obama is creating a decisive and dangerous precedent for the next commander in chief who is unlikely to have the Harvard Law Review on his résumé" — as if that credential has some constitutional significance.
But that's just silly. Whether they're from the Office of Legal Counsel or the Department of Defense any other unit of government, those lawyers are no more than advisers. Neither Barack Obama nor any other POTUS needs even one lawyer to bless what he's done or opine that it's okay — and that doesn't vary a whit based on whether the POTUS is or isn't also a lawyer. It's not that something becomes legal just because the POTUS says so. But the decision of the POTUS is the decision of the executive branch because the Constitution puts the POTUS at the head of that coordinate branch of government — whether the POTUS is backed up by 500 lawyers, one lawyer, or no lawyers at all.
If Ackerman can't grasp and apply the distinction between counselor and principal, he shouldn't be teaching law school — not even at Yale. As another Yale law grad with whom I'm familiar wrote a few days ago:
The President gets to make these calls [as to which lawyers, if any, he chooses to rely upon]. Of course, when the President makes this sort of a call, in a war that never had any sort of Congressional approval, it’s pretty risky — or, if you prefer, “gutsy” — but that choice is the President’s to make, and the political risks are his to run.
Exactly. Obama's taken the position that his administration isn't violating the War Powers Resolution — not because it's an unconstitutional infringement on the POTUS' constitutional responsibilities and powers as commander in chief, but because our military forces supposedly aren't involved in "hostilities." The voters who consider his reelection bid can and should hold him accountable for that ridiculous position (and the overweening vanity which permits him to insist upon it), regardless of whether that position was or wasn't blessed by the particular number and brand of orthodox legal priests upon whom Ackerman thinks all presidents should rely.
Saturday, June 18, 2011
Beldar faults Kurtz' blind spot on U.S. interests in Libya
I commend to you this Stanley Kurtz post on the Middle East and Libya at The Corner. Mr. Kurtz is thorough-going in his grimness, to the point that I think he's self-blinded to the opportunities that may inhere (even if they don't preponderate) in times of transition. But the scenarios he presents, if tending toward worst-case, are nevertheless entirely plausible and ought be taken seriously.
Mr. Kurtz' premise is in his second paragraph (emphasis mine):
While there is clearly some war fatigue on the right at the moment, the deeper doubts about our war policies are driven by the flux and uncertainty sweeping over the Middle East, as well as a sense of overstretch catalyzed by President Obama’s postmodern interventionism in Libya. Fundamentally, the current moment of uncertainty about our wars in the Middle East is an appropriate response to the tumult reshaping the region. What Republicans need most now is a more accurate assessment of what is happening in the world. Only on the basis of such an assessment can a policy for the future be shaped.
Mr. Kurtz devotes most of the balance of his essay to specific observations that he believes ought to be given weight in such a reassessment. All of his observations are thought-provoking, but one — which I've read him make repeatedly before — I particularly disagree with. He writes, in reference primarily (I think; it's a bit unclear) to the Libyan intervention:
For President Obama to choose this moment of overstretch and crisis to commit us to a supposedly humanitarian intervention in a land with no vital American interests at stake is little short of madness....
The middle of that sentence is a ridiculous overstatement. Of course America has at least some vital interests in Libya. The question is what they are, and how they weigh compared to other places, other conflicts, and other interests.
Thus my comment there, which I reprint here (without blockquoting, and slightly edited for clarity):
Mr. Kurtz, you continue to assert that the U.S. has no vital interests in Libya.
Kadafi has a proven history of exporting international terrorism and pursuing WMDs — aggressively, successfully, and with the U.S. as his favored target. He abandoned WMDs when Saddam was captured, but he will surely return to them now. Libya's oil wealth still gives its ruler the realistic ability to buy WMD technology and materials. And apart from its use to fund world terrorism, Libya's substantial share of the world's oil production gives Libya independent economic power (especially over our traditional European allies) in strategically significant amounts.
So you'd put Libya in what, the same class of strategic importance as the Congo?
Yeah, we need to be realistic. And yeah, there's lots wrong with what Obama is doing and saying (which don't quite match). And yeah, the options are bleak and the long-term prospects daunting.
But pretending that Libya is no big deal for the U.S. is unworthy of your intelligence, sir.
Friday, June 17, 2011
Beldar agrees with Yoo on War Powers Resolution
I don't subscribe to the Wall Street Journal and thus can't get past its pay-wall to read Prof. John Yoo's op-ed today about the Libyan conflict and the War Powers Resolution. But I certainly agree with the summary he's posted at The Corner:
The treatment isn’t to force everyone to obey an unconstitutional law, the War Powers Resolution, that is both untrue to the Framers’ original understanding and unsuited to the exigencies of modern war. The New York Times’s [editorialists'] solution is the equivalent of using leeches on a patient with the common cold. The right constitutional answer (as I explain in this morning’s Wall Street Journal) is to toss the empty symbolism of the Resolution and meaningless lawsuits aside and let them fight it out using their own powers — commander-in-chief versus the purse — in the political process.
That's exactly right. The War Powers Resolution is the equivalent of Congress stamping its feet and shouting, "I'm Congress, dammit!" It's drama without substance.
The Constitution expressly gave Congress ample push-back power against the Executive through the power of the purse. If Congress wants to induce different (and better) behavior from the Executive, it can de-fund what he's doing. But if that imposes costs on Congress, in the form of political capital spent and political risks undertaken if Congress has misread the public, then Congress must bear those costs.
The Constitution is much more clever and much more subtle than the War Powers Resolution. And it's the Constitution, and the structure it creates with the intentional and continuous dynamic interplay inherent in that structure, that ultimately matters.
Wednesday, June 15, 2011
California Prop 8 and Beldar's tale of a trial judge who based his ruling on a coin flip
Back when I was a BigLaw lawyer and regularly represented mostly big companies, one of my best and favorite clients was an international investments concern whom I'll call "Big Mall Owner Inc." for purposes of this war story.
Big Mall Owner Inc.'s investments portfolio included lots of commercial real estate, and in particular it was the owner and landlord of a large, multi-level indoor shopping mall built on what were then the outskirts of Houston in the late 1970s. Although the mall was originally a fairly posh location, its surrounding neighborhood had since declined. Big Mall Owner sought my services as its courtroom lawyer on this occasion because the mall's anchor tenant — a large Texas department store chain, which I'll very creatively call Large Department Store Corp. — had recently decided to make that location into its "discount outlet," at which Large Department Store would sell seconds, returns, and remaindered goods at a discount.
This angered the other tenants, and they complained to Big Mall Owner and threatened not to renew their own leases. Big Mall Owner was concerned, too, because every such mall looks to its anchor tenant(s) to set the tone, and draw appropriate crowds, for the entire mall.
But Large Department Store was still paying its rent in full and on time. It insisted that it was doing nothing contrary to the lease, and refused to negotiate any change in its use of this location.
The relevant lease documents, like most such, were the product of arms'-length bargaining, but they still generally favored the property owner. They contained several requirements about the standards that the anchor tenant was to maintain, but those were necessarily somewhat subjective. And in general, it's much, much harder to evict a tenant who's paying its rent, and who has ample resources to fight back over an alleged non-monetary default.
Nevertheless, per its rights in the lease documents, Big Mall Owner's representatives (at my direction) did a snap inspection during which they documented, in writing and on video, several dozen different conditions which we thought amounted to breaches of Large Department Store's obligations under the lease. Not all of those violations had been cured 30 days later, but we weren't quite ready to exercise self-help remedies like a lock-out. (Lockouts done through self-help can lead to big consequential damages awards if they're later found to have been wrongful, and Large Department Store was threatening exactly that sort of lawsuit.) Instead, we filed an eviction lawsuit.
Under the Texas state constitution, claims seeking a court order for the immediate possession of leased premises, whether residential or commercial, can only be filed with the appropriate Justice of the Peace of the precinct in which the property is located. Jurisdiction is both mandatory and exclusive: Even if you have a lawsuit pending in another level of the court system, and no matter whether the monthly rent is $100 or $100,000, an evicting landlord can only get the "writ of possession" it wants from a Justice of the Peace.
Texas' Justice of the Peace Courts (sometimes just called "Justice Courts") do offer jury trials to those who demand them and pay the specified jury fee, but they are not "courts of record" — meaning (among other things) that they quite literally have no court reporter who can make a record of the proceedings therein. They do keep other sorts of records and files, of course. And whether for a writ hearing or for a jury or bench trial, they do swear in witnesses and take testimony and written evidence. But their presiding Justices of the Peace need not even be lawyers.
Upon paying a nominal fee or filing a pauper's affidavit, anyone dissatisfied with the judgment rendered in a Texas Justice Court may appeal to an "of record" court, typically the "County Court" or, in large metropolitan areas like Houston with specialized county courts, to the "County Civil Court-at-Law." And since there's no "record on appeal" from the J.P. Court, one's "appeal" actually consists of a "trial de novo": The judgment of the Justice Court is vacated; everything that happened there is wiped out; and everyone starts over, almost as if the case had just been filed there to begin with.
So on behalf of Big Mall Owner, I duly sued Large Department Store in the appropriate precinct's J.P. Court, and I jumped through the appropriate hoops to try to get the earliest possible hearing date: No on-going business wants to be evicted, and now that we were definitely at war, Big Mall Owner wanted to put the maximum pressure possible on Large Department Store.
On the appointed day and at the appointed time, both sides waited our turn among the folk of Harris County who had business with the court that day. The courtroom was absolutely packed, and not with lawyers but with people representing themselves: There were many other civil evictions on the docket, plus a wide range of other civil cases (mostly "small claims") and misdemeanor criminal cases too. Some of those folks grumbled (very quietly, because there's no court reporter but there is a bailiff with a gun) when the Justice of the Peace announced that on this fine morning, he was going to first hear — out of order and before anything else — the case of Big Mall Owner Inc. vs. Large Department Store Corp.
Probably six or eight lawyers trudged up to the bench, looking a bit sheepish at the professional courtesy we thought we'd just been extended. Adding in the half dozen or so client representatives and witnesses for each side sitting in the front couple of rows, our case collectively involved maybe only 10% of the people in the room, but something like 20% of the frequent bathers, and 90% of those wearing business attire.
"Who's lead counsel for Big Mall Owner?" asked the Justice of the Peace. I identified myself. "Okay then, Mr. Dyer," he said, "Since you represent the plaintiff, that means you get the privilege."
I was puzzled. We were ready to start, but we hadn't begun putting on any evidence yet, so I couldn't imagine what exactly he meant. "The privilege, Your Honor?"
"Yup," he answered. "Whatever I say to you folks today, no matter how I decide or what I decide, the loser is going to appeal and get a trial de novo in county civil court-at-law. Right?" No one disputed him, nor could anyone have.
"And I've got fifty, sixty folks out there waiting for my attention today," he continued, gesturing to the crowd filling the rest of the courtroom. "As interested as we all may be in whether Large Department Store gets to keep operating its discount outlet at Big Mall Owner's mall, I just don't have time for y'all to argue about signage and trade dress and Class A versus Class B."
"So, Mr. Dyer," he announced, as he produced a quarter-dollar coin from a pants pocket under his robe, "Call it in the air — heads or tails!"
The whole courtroom laughed, except for me and the judge. "Tails," I said very seriously just before he caught the coin and slapped it onto the back of his opposite hand.
"Tails it is," said the J.P., "meaning the Court will enter judgment for Big Mall Owner."
Another laugh, slightly disbelieving this time, from the crowd (including the corporate representatives from both sides). But before the laugh had died down, the J.P. literally began waving a hand, shooing us away from the bench while looking down to see what was next on his docket.
"But Judge!" I gulped. "Since I won the coin toss, doesn't that mean I get my pick of the possible results?"
The J.P. stroked his chin and said, "Yes, I imagine that's right. So?"
"In that case," I responded, "please enter judgment for Large Department Store Corp."
Now the whole courtroom was silent, and my co-counsel and my client's representatives looked at me as if I had gone completely mad. I put on my best "Trust me!" face and kept the J.P.'s eye for the two or three eyeblinks it took for him to suddenly smile and wink at me.
"Done!" he exclaimed. "Now y'all are excused, next case!"
I snagged the sleeve of my lead client representative and tugged him out into the hallway. "I know you think I'm crazy," I told him. "But if we end today as the winner in this court, Large Department Store can let ten more days run off the clock before they even have to file their appeal. We'd much rather lose today, and file our appeal today, and start the clock running on the eviction proceedings in County Civil Court-at-Law today — wouldn't we? After all, it's a trial de novo. All that matters here is that we've gone through this court en route to one where it really matters."
All other things being equal, when on appeal one would usually rather be appellee than appellant. That is, one would usually rather have won in the trial court than have lost. That's especially true when the issue being decided is factually intensive. Appellate courts traditionally and properly give great deference to the decisions of the trial court fact-finder — the jury if there is one, or the trial judge if it's a bench trial — on the weight and credibility of evidence. Appellate courts conduct only a very limited review of the trial court's factual conclusions. But they are obliged to give no deference at all to a trial judge's legal conclusions, and instead they're completely free to substitute their own views as to the law for those of the trial judge.
If there are no disputed facts — if the issues in a lawsuit depend solely on the proper application of legal principles to underlying facts that are undisputed — then for most purposes on appeal, the trial court's decision simply doesn't much matter.
Such is the context in which I left the following comment on my blogospheric friend Aaron Worthing's guest-post at Patterico's about this ruling from a federal trial court in California, a post entitled Breaking: Motion to Vacate Proposition 8 Verdict Denied (slightly edited for clarity):
With due respect, this is a sideshow, Aaron.
The “trial” was a circus. No material facts were genuinely in issue. The resolution of the case can and will be made at the appellate level based on undisputed and indisputable facts; the fight on appeal should be, and will be, how the law applies to those facts.
Nothing this judge did or didn’t do will end up mattering. It’s a waste of everyone’s time and emotional energy to pay attention to it. The judgment of the district court is either going to be affirmed or reversed — I continue to believe the latter is most likely, but not before the SCOTUS gets it — but nothing this trial judge did or didn’t do will have any bearing on that outcome.
"But Beldar!" you may protest. "What about ... [cue three dramatic, descending organ chords] ... the fate of Big Mall Owner and Large Department Store?"
By the time I'd reached the parking lot, Large Department Store's lead lawyer had caught on and caught up.
Within ten minutes we'd agreed on a nonbinding mediation before a retired state district judge, and by the end of that we'd discovered that Large Department Store was willing to move its discount outlet to a new location at another, slightly less posh shopping mall which was also part of Big Mall Owner's investment portfolio. An acceptable deal was found for everyone in our dispute, much corporate face was saved, rents were paid and profits made, and all the lawyers got paid (including me). Peace was restored to the kingdom.
Tuesday, June 14, 2011
Beldar quibbles with Krauthammer over Perry and the Texas economy
Dr. Charles Krauthammer said tonight on Fox News, at the tail-end of his comments about the possibility that Texas governor Rick Perry might enter the GOP presidential race for 2012:
I would just add, there's one factor in the Texas story which can't be overlooked: It's got a lot of oil, it's an oil state. And oil has done rather well. Other states don't have that much.
We all occasionally make trite remarks, and Dr. Krauthammer's tendancy to do so is far, far lower than my own. Certainly anyone who's trying to evaluate Texas' relative success compared to some other states, both currently or historically, ought to factor in natural resources.
But the price of oil has varied fairly dramatically over the past three years. Texas is far behind Alaska in crude oil production, and failed-state California is close behind Texas in the number three position.
While there have been new and exciting energy discoveries in Texas in the last few years that have contributed to the statewide economy and have led to local booms in exploration and drilling, most of the value of the energy business to the Texas economy is based now on what's above the ground — people, expertise, and technology — rather than below it.
With due respect to Dr. Krauthammer, then, oil is a factor in Texas' economy and in particular its creation of new jobs — but it's not the most important factor, and it's much less of a factor now than it was 30 years ago.
When he is at his best, Gov. Perry — who is not a humble man by nature — is appropriately humble about his personal role in Texas' relative economic success during these hard times. Rick Perry didn't create that prosperity. No state governor has such power, and certainly not Texas' governor. No American president has such power over the country, either.
Rather, Perry has continued a long tradition that goes back to the days of Stephen F. Austin, when Texas was still part of Mexico. Texans expect government to perform some core functions competently, and then otherwise to get the hell out of their way.
By and large, Gov. Perry has stayed the hell out of the way, just as have his predecessors going back a long, long way. Texas has been a right-to-work state, for example, as long as that term has had meaning. Texas has never had a state income tax, and proposing one has been the political equivalent here of swallowing a dose of cyanide the size of a football. And people still come to Texas because it doesn't matter much who their daddies and mommies were; rather, what matters is what they will accomplish for themselves when they get here and are given a chance.
Holding fast to first principles is easier when you don't have to swim upstream, and in context, it's no knock on Gov. Perry to point out that he hasn't ever had to. And whether he remains a speculative candidate or a more active one, he'd be truthful, and smart in the long run, to point that out himself — aggressively, and indeed reflexively every time someone gives him more credit than due for the Texas economy. Rick Perry is due some considerable credit, mind you, for not screwing up — but he'll earn much more by placing the lion's share of the credit where it's due, which is not on himself or any government official, but on the free market and its Texas participants whom he has had the privilege of representing as a public servant.
Saturday, June 11, 2011
A whole 'nuther reason I'll never buy a Chrysler product ever again
My first-ever car, in the mid-1970s, was a used Oldsmobile Cutlass, and I put a solid 100k miles on it over a seven-year period before I sold it. And in the 1990s, my family owned, and enjoyed, a Chrysler minivan that met our needs very nicely indeed.
I was disgusted, however, with the Obama Administration's thuggish suppression of the rule of law in both the GM and Chrysler bankruptcies, and as a matter of principle I'll never again buy a product manufactured by the post-Chapter 11 successors of either.
I'm generally a fan of actor Sam Elliott, who did the voiceover for this particular commercial. I like him in no small part because his deep, rumbly, and twangy voice sounds authentically western to me. He's not a Texan, and perhaps his accent is affected rather than natural, but he could probably pass for a Texan in most towns here.
So I was just jarred — and very, very disappointed — to hear him just now say, "Talkin' a big game about your enjin' is one thang. Havin' thuh proven history that kin back it up is uh whole other story."
Oh, that's just so wrong. That last phrase has to be written, and said, as "uh whole 'nuther story."
I mean, there he was, with a dramatic sound-track and tough-looking trucks on the screen, sounding all rough and rugged and ready to take on something muddy and difficult, maybe even patriotic — and suddenly, by the shift in his voice, a whole corn cob must have been teleported about eight inches up his lower bowel.
I'm going to choose, with absolutely no evidence either way, to assume that Mr. Elliott almost got into a fist-fight over his deep-set objections to delivering the line that way, but he finally backed down because he was donating the proceeds to European orphans made destitute by the organic beansprout food-poisoning epidemic. I choose to so believe so that I won't dislike him forever, because if I dislike Sam Elliott forever, I will no longer be able to maintain my belief that the Dude abides, which would disappoint me.
But as for whoever insisted that the line be read as "whole other," I have just one word:
Thursday, June 09, 2011
Fools, lawyers, and Johnny Reid Edwards
Slate's Brian Palmer asks, in his "Ask the Explainer" column, If John Edwards Were To Represent Himself, Would He Have a Fool for a Client? And then Palmer spends some 600-odd words to say "maybe yes, maybe no." For example:
As with so much in the world of lawyering, there are arguments for and against attorneys representing themselves, but little data.
If you ever are in serious need of a lawyer, may a merciful God spare you from one who bases your defense on "data" in the sense that Palmer means that word.
I will admit that it would be absolutely in character for John Edwards to try to represent himself — except that he has never shown an ounce of courage in connection with this affair. The kind of guts it takes to argue to a jury on behalf of a personal injury client* is nothing compared to the kind of guts the same lawyer would need to represent himself in a criminal case like this. That's why I think he not only won't represent himself, but he'll plead out even if it means jail time. (He'll be looking for the comparatively light, safe, friendly, and shower-monitored confines of one of the nicest federal pokeys, and he might get that.)
But let me give a much shorter, much wiser, and much more unequivocal answer to Palmer's question:
With due respect to Palmer and anyone he consulted, every pro-self representation argument Palmer mentions is trivial, and laughably so, compared to the monumental detriment Edwards would incur from losing the specialized experience and, especially, objectivity of a seasoned criminal defense lawyer. It is not a close call.
And Palmer underestimates — massively — the degree of difference between a civil personal injury law practice in the state courts and the defense of a criminal election-law finance prosecution in federal court. Not only would the lawyer have a fool for a client, he would be committing obvious malpractice on behalf of the fool. And I say this as someone who's had at least as much civil trial experience as Edwards himself, although I don't have anything like his personal fortune to show for it. I keep a carefully considered criminal defense lawyer (and good friend) on my speed-dial at all times, and I'd frankly advise anyone who thinks he or she has much to lose from a criminal prosecution, and everyone who ever is likely to be within six feet of an alcoholic beverage within 12 hours of driving, do the same. It costs you nothing to be prepared, and the most valuable words in the English language may be "I decline to answer until I've had advice from legal counsel, may I please contact counsel now?" — even if you are innocent as the driven snow.
* Arguing for a personal injury plaintiff is, by the way, something which I've had occasions to do myself, although much less often than I've been on the defense side. But it's something for which I have a healthy respect when it's done well and ethically. I'm not passing judgment here on whether Edwards' past arguments meet that standard, and I would never presume to do so without, at a minimum, reading the full trial transcripts of his past cases. Those who would, without investigation, jump to conclusions about Edwards' record as a practicing lawyer may be showing insufficient respect to North Carolina defense lawyers, jurors, and trial and appellate judges. I despise the guy, but don't quote me snippets about channeling spirits of departed children or whatever during closing argument. He may have done over-the-top things that you guess the jury bought when it shouldn't have, when in fact it was something else entirely that resulted in the jury's decision; they might even have agreed with you about Edwards. My point is that I don't know, and I doubt you do either. By contrast, I'm confident that I have an ample basis to support my opinions of Edwards as a husband, a man, and a so-called public servant.
As I wrote last week, I respectfully disagree with Ann Althouse that Rep. Anthony Weiner (D-NY) ever had any substantial legal exposure to Twitter or Facebook or yfrog on some sort of defamation claim based on his oft-repeated lies claiming his accounts with those services had been "hacked."
So the only thing I have to say this week is this: With his tearful press conference this week, he's now effectively mitigated whatever potential defamation damages exposure he might arguably have had if Prof. Althouse was right: Nobody in the known world now believes that someone hacked his accounts, and there's no possibility of continued damage to Twitter's or Facebook's or yfrog's reputations as a result of this whole debacle.
Smart move, Tony!
(In fact, maybe mitigating his defamation damages exposure was his real motivation to "pretend" to have lied, instead of him being motivated to "pretend" to have lied because he's now the victim of that blackguard Breitbart's blackmail schemes! Yeah, that's the ticket! Alert the media! Someone email Joy Behar!)
Apocalyptic financial numbers
Here's a comparison for James Taranto's Best of the Web Today column:
Barack Obama's worst week was about more than bad data. The two great legislative monuments to the first Obama term, the remaking of the health-care industry and the Dodd-Frank financial reform, look like they've got serious structural cracks. A McKinsey report estimates that a third of employers will abandon their health-insurance plans come 2014. On Tuesday, The Wall Street Journal reported that the failure (or inability) of Dodd-Frank's regulatory arm to write new rules for the $583 trillion derivatives market has the financial sector in a panic over its legal exposure.
— Daniel Henninger, Wall Street Journal, June 8, 2011.
The International Swaps and Derivatives Association said Tuesday that the true size of the global over-the-counter derivatives market is closer to $401 trillion, not the $583 trillion estimate given by the Bank for International Settlements late last year.
— Wall Street Journal, March 29, 2011.
I don't know about you, but I feel much better after reading that second blurb. $182 trillion difference here, $182 trillion difference there, and pretty soon you're talking about some real money!
(This discrepancy aside, the Henninger article is well worth your read, and scary as hell.)
Wednesday, June 08, 2011
Beldar on Katyal's quip to the Eleventh Circuit
Ann Althouse posted today about a first-hand report by Volokh Conspirator Sasha Volokh about a quip made at today's oral argument of the Eleventh Circuit case on Obamacare. The quip was from Acting Solicitor General Neal Katyal, who said, on behalf of the government in defending the constitutionality of the statute, that the individual mandate provisions of Obamacare “may violate the constitution of Ayn Rand, but they do not violate the Constitution of the United States."
Prof. Volohk caught Prof. Althouse's eye with Prof. Volohk's own counter-quip about Katyal's quip — a pretty obscure one about Lockner v. New York from long ago. I approve of legal humor, obscure or ribald, on blogs.
But I'll share here (slightly edited but not blockquoted) the comment I left on Prof. Althouse's blog:
As for oral arguments, speaking as a former Fifth Circuit clerk who watched lots, and who's since had a handful of chances to make them, there are exactly two rules about jokes:
- If one of the judges makes a joke, it's always funny.
- If one of the lawyers makes a joke, it's always wrong.
As an appellate advocate, you're trying to project the image of an earnest scholar of the law who's trying to help the court do its duty and write good precedent. (Precedent which will also — Quel miracle! — help your client.) You aren't trying to be Jon Stewart.
Lawyers who crack wise in appellate oral arguments are servicing their egos and dis-serving their clients, in my humble opinion.
This goes for smart-assedness in court in general, and it's a lesson I was taught in my first big first-chair jury trial, long, long ago.
UPDATE (Thu Jun 9 @ wee-smalls): I just found out that Katyal is Jeffrey Rosen's brother-in-law. (Excuse me, that would be "The Jeffrey Rosen.") The universe is sometimes surprisingly orderly that way, I guess. But believe it or not, I'm actually planning (and have long procrastinated actually writing) something fairly complimentary of The Jeffrey, and so perhaps seeing his name again will remind me to do so.
Saturday, June 04, 2011
Beldar on Emanuel on Obama on Israel's future
If you're Barack Obama, then by the time you've run and won a presidential election campaign, you know better than to defend your disastrous Middle East policies with the old cliché, "Some of my best friends are Jewish!"
Instead, you get your loyal vassal and bannerman — until recently your chief of staff, now returned to your and his hometown cesspool of politics, Chicago — to declare, "Hey, I'm a Jew, and Barack Obama's one of my best friends!"
That's the entire explanation for, and most of what you need to know about, Rahm Emanuel's WaPo op-ed this week. Emanuel would have had the same concluding paragraph no matter what:
As an American and a Jew, however, I am grateful that this president has not given up trying to find a path that would bring the parties back to the negotiating table. I applaud his continued effort to work on and invest himself in this increasingly vexing and dangerous conflict. All who care about a safe and secure Jewish state of Israel should as well.
Emanuel has seen Obama up close, he assures us, and then lists several Obama decisions that can be spun as pro-Israel. Trust me, Emanuel is saying, Obama's really not as anti-Israel as his history and his words and his deeds all indicate.
Uh-huh. But what of the contrary evidence, the calculated undercutting of Israel's negotiating position in Obama's May 19th speech to the State Department?
Emanuel simply pretends that that speech was pro-Israel.
He (or the editorial staff of the WaPo) helpfully included a link to the May 19th speech. And Emanuel quotes what he calls the "one sentence" of Obama's that has "received the most attention," viz — "The borders of Israel and Palestine should be based on the 1967 lines with mutually agreed swaps, so that secure and recognized borders are established for both states." He insists that prior American presidents and Israeli governments have dealt with the notion of swapping land for peace, and that Obama wasn't tilting American foreign policy away from Israel, so this is all much ado about nothing.
But he completely ignores what Obama said immediately after that controversial sentence (emphasis mine):
These principles provide a foundation for negotiations. Palestinians should know the territorial outlines of their state; Israelis should know that their basic security concerns will be met. I’m aware that these steps alone will not resolve the conflict, because two wrenching and emotional issues will remain: the future of Jerusalem, and the fate of Palestinian refugees. But moving forward now on the basis of territory and security provides a foundation to resolve those two issues in a way that is just and fair, and that respects the rights and aspirations of both Israelis and Palestinians.
The policy that Obama announced on May 19th was "Borders first, Jerusalem/right of return later." No other interpretation of Obama's words is possible. And no American president had ever before proposed that.
In responding to Emanuel's op-ed, was Roger L. Simon hyperbolic in this comparison?
[W]hen we are reading Emanuel’s piece, we are doing more than running our eyes rapidly down another dull oped. We are taking a time trip back into the 1930s when Jews made all kinds of rationalizations for all kinds of behavior. We all know the results of that.
Perhaps so. Obama's not rounding up Jewish families and putting them on trains to death camps, so the behavior that Emanuel is rationalizing isn't as noxious as the Nazi's.
But then again, Mr. Simon's implied (and more apt) comparison is not Obama & Emanuel to the Nazis, but Obama & Emanuel to the American leaders (including American Jews) of the 1930s and 1940s — leaders who took a "hands off"/"It's their problem" attitude over what Germany was doing to its Jews for years before war broke out. I don't think Godwin's Law applies when one's talking about the consequences of the actual Holocaust, including the origins of and the continued need for the State of Israel.
I'm willing to grant that Emanuel is a smart guy. How else (*cough*cough*) could he have turned a degree in ballet from Sarah Lawrence College, with no experience in business or finance, into a post-Clinton investment banking job at a branch office of Wasserstein Perella which netted him more than $18 million in just over two years? And I'm in no position to pass any judgment as to whether Emanuel is compromising his faith or his family or his heritage in his unswerving and, apparently, entirely uncritical support of Barack Obama.
But I'm very, very sure that Barack Obama is trying to turn America away from its best ally in the Middle East. And when someone like Rahm Emanuel tries to deny that, or distract attention from it, by saying, "Trust me, I'm a Jew" — I'm not impressed by that argument. I don't trust Rahm Emanuel, nor his liege-lord either.
Ryan on American exceptionalism
Referring to Paul Ryan's detailed and thoughtful speech on Thursday to the Alexander Hamilton Society — in which Ryan used historical parallels to reaffirm the critical importance of American exceptionalism in the modern world — the esteemed Michael Barone asks (rhetorically but pointedly):
By the way, how often do House Budget Committee chairmen give speeches about foreign policy?
Thursday, June 02, 2011
Ryan, preeminent champion of fiscal sanity (and the GOP), again goes unblinkingly toe-to-toe with Obama
I don't know, but I'm guessing that since she's technically writing a "blog" for the Washington Post, the WaPo editors permit Jennifer Rubin to write the headlines for her "Right Turn" feature. I'm a fan of hers, and we're both fans of House Budget Chairman Paul Ryan (R-WI), as per this post of hers titled Paul Ryan stands up to Obama on Medicare reform:
At the meeting between House Republicans and President Obama, Rep. Paul Ryan (R-Wis.) again demonstrated that he is the head of his party, and the most effective combatant to go up against Obama in 2012. The Los Angeles Times reports:
Ryan, the House Budget Committee chairman, got a standing ovation from his colleagues during the meeting....
... Obama, when presented with the facts, is hard pressed to repeat his demagogic talking points because he knows Ryan is fully capable of calling him on it. The president refuses to give up the fiction that Ryan’s plan is a voucher system when in fact the money doesn’t go to Medicare recipients. One supposes that ignoring reality will be a mainstay of the Obama reelection campaign.
The GOP presidential contenders should be on notice. Unless they have a precise grasp of the president’s plan (handing Medicare over to an unelected 15-member board to curb care) and an alternative plan they can spell out in detail, they’re in for a rough time. Come to think of it, does anyone but Ryan currently meet that description?
Ryan has faced down Obama before in pretty much this same manner — maybe before you were paying attention? — in 2010, during Obama's stage-managed "White House Health Care Summit." There are several other capable debaters in the GOP race, or speculated as being interested in entering it, and I'm not implying anything negative about any of them, but:
Doncha know, friends and neighbors, that Obama would have flop sweats imagining himself debating Ryan for all the marbles in November 2012?
Events are choosing the candidate, if we will only heed them. To a considerable degree, 2012 will be a referendum on Obama; but to win that referendum, the GOP must also present a serious, detailed, and grown-up alternative. We have such an alternative, and its author can not only use it effectively to educate the public, but he can also explain in precise detail why the Obama/Dem alternative (including but not limited to Obamacare) is indeed the direct path to the cliff's edge and then over it.