I only have a few minutes between flights, and I must admit that I could not have picked a worse week to stop watching the news for the last of my pre-work vacations, but I am torn between whether this bailout plan passing or not passing is a good thing. I'm going to think more about it on my flight and try and come up with an intelligent point when I return to the east coast in a day or two.
Seven quick thoughts on today's crash and comedy of errors.
1. The fast-paced nature of a huge government bailout bill. With the business world still reeling from Sarbanes-Oxley, I am not totally surprised that a small core of Congress is hesitant to wade deeper into the water of government-sponsored bailout and federalization of private enterprise. Should the government get involved? Should it not get involved? Another way to put this is should we have a small government or a big one? This is the core of federalism/anti-federalism and what I thought was the fundamental difference between Democrats and Republicans. See point 2.
2. The Republican and Democratic (two-) party system is broken. I will not be at all surprised by this if a third, or even a fourth party forms from the two factions of both parties. We need some member of Congress (probably a Senator moreso than a Republican) or some governor to step up nationally, step up and lead, and just do something substantive. Isn't this sort of national crisis how the Republican party formed in the first place? I'm not perfect on my history, and I would think that this sort of change will take a few years, but perhaps this financial breakdown is the jolt that is needed for someone to make a real difference as a public servant. So that my viewpoint is clear, the Green, Libertarian, Independent, Donald Duck, or whatever other parties are currently in existent are not it.
3. Is it really the failure to pass this bailout plan the route of the problem or is it simply exposing the flaws in the financial lending system? The house of cards seems to be collapsing. How long did people really think a lender could loan millions of dollars nationally to people with bad credit before getting burned?
4. This stock market meltdown, whether it was inevitable or catalyzed by what I am tentatively categorizing as a vote of "no-confidence" in the government, will have serious effects on the general public, like it or not. What is going to happen when grocery stores start charging (as some gas stations do) excess fees for credit card usage? While New York and apparently nine other states prevent this practice, these sort of laws hurt businesses, or, alternatively, simply operate to drive up prices directly rather than indirectly.
5. Did twelve Republican senators really vote "nay" out of spite? See Lawmakers quickly point fingers after bailout fails; Lawmakers blame partisanship for failed house bill; Republicans accuse speaker of shattering fragile bail-out deal. Seriously?
I'm not a fan of government bailout when we have a perfectly good bankruptcy system in place, but when the crisis has reached a fever pitch, I would hope that the vote against such a massive government project has a good reason, and not simply, as Rep. Boehner is quoted as saying, "I do believe we could have got there today, had it not been for this partisan speech that the Speaker gave on the floor of the House" (see also Rep. Cantor: "There is a reason that this vote failed - and that is Speaker Pelosi's speech"). One word to this: RIDICULOUS.
If this bill, for better or worse, failed because of a doofy speech by the House speaker, then our government is more broken than I thought. See again Point 2.
6. I just hope that once I land my 401(k) hasn't turned into a 201(k) (with credit to some guy I heard make this identical joke to one of his friends at the airport bar a little while ago).
7. Hopefully the airline in my connecting city doesn't go out of business before I land.
Monday, September 29, 2008
A quick point from an airplane terminal regarding this bailout plan
Thursday, September 18, 2008
Maybe it's time for another New Deal
I do have some thoughts on this Palin email hacking debacle, as well as a growing concern that legislative subpoenas (e.g., Rove, Palin's husband) have absolutely zero power, which seems troubling. In the meantime, however, I will simply comment on the recent financial whiplash experienced by our economy. I wrote this after the second 400-point crash on Wednesday, so it's a little dated at this point given that the SEC has finally stepped up and started to regulate short selling, which I remain convinced is part of this mess. I'm just glad I have a job and hopefully I still will have one in six months.
Two points merit brief discussion. The first is this Wall Street mess. The second is the government's intervention to fix it. Like Ben Stein, I agree that taxes are going to have to be raised (likely against those who make the most money) now is not the time to cut corporate taxes. See Ben Stein, How to Ruin the United States of America. Cf. McCain on Financial Markets (stating at a Sept. 19 press conference that "Business taxes will be cut from the second highest in the world at 35 percent to 25 percent"). I disagree that the economy will be stimulated by tax cuts for 95% of Americans because while 95% may see some sort of tax relief, much less than that will actually notice any difference, assuming it passes. See Fact Check: Obama Wants to Raise Taxes; Obama and Taxes. Cf. ObamaTaxCut.com (unexplained and quick and dirty method of estimating taxable income; not sure I would put any stock in this one, but it's something).
Thus, with a lot of talk and no real substance, we are left with a nearly trillion dollar deficit and nobody wanting to contribute toward it. Wake up. Taxes are going up regardless of who the president is. The only question is how far down the small business chain those tax increases will travel (which I would guess, not very far). Once we cut out the puffery, the question is whether there is any candidate who is simply going to tell the country that things are bad, people are going to have to suck it up for a little while, and together with our economic allies, the federal government (and state governments) are going to turn this economy around, and then explain how they are going to do it. Unlikely, but one can hope.
Really, I would like to see one of the candidates step up and simply say that they are going to hold Wall Street accountable for any criminal actions that may have led to this historic collapse and people are going to go to jail. That's what I want to hear. Whether it happens or not is besides the point. I just want some reassurance that the economy is not going to fold up into a new great depression. The last thing we need is hyperinflation. In the end, it's really President Bush's job to announce via a national address, but that's probably not going to happen. Hopefully one of the candidates will do so instead.
Second, this concept of government bailout of private business is appalling. Granted, perhaps government intervention is the only way that this problem could have been alleviated, and that is a good thing. See Jim Cramer, The AIG Save Puts Us on Better Footing. With our national debt through the roof, how many other business (e.g., auto industry, airline industry) going to turn to the government to bail them out of their failed business strategy? To this, I would like the candidates to address how the federal government plans on restructioning these newly acquired assets in order for them to be successful.
Granted, the government seems to on the verge of resurrecting a parallel to the taxpayer-funded bailout of the savings and loan crisis, and this may help. See Paulson, Bernanke Seek Support for an Agency to Buy Bad Debt. So will help from foreign investors. While the markets may have rebounded, there remains questions of whether this is just temporary or have we actually hit the bottom? Time will tell. If only one of the candidates to step up and say it's time for a New Deal.
Monday, September 08, 2008
Berg v Obama citizenship TRO lawsuit
Someone asked me whether I had heard about this lawsuit over Sen. Obama's citizenship. I told him I hadn't, but that it was unlikely to go anywhere in any court for lack of standing. Because this news story has some legal crossover, however, I figured I would get a more informed opinion over it. After sifting through about 10,000 pages of drivel from both the left and the right (and some funny legal ones from Above the law), I have been able to conclude that this lawsuit has not gotten very far, and in short order, will be dismissed.
From what I can tell, Philip Berg is an attorney in Pennsylvania who is bringing this action pro se against Sen. Obama. (Above the Law nominated Berg for lawyer of the day on August 25). See generally Below the Beltway: And That, It Would Seem Is That (discussing this suit and linking to other similar citizenship lawsuit challenges); Mystery solved*: Barack Obama was American-Born (playing on the conspiracy theorists attacking both parties). I have found a copy of the complaint here, but was unable to access it through the Eastern District of Pennsylvania website. At least according to that document, the case number is 08cv4083, and is captioned Philip J. Berg, Esquire v. Barack Hussein Obama, et al.
The complaint, among other things, seeks injunctive relief to prevent Sen. Obama from running based on his alleged non-citizenship. He also brings suit against the DNC for essentially failing to do the same thing as him. Curiously, the complaint references many internet allegations (and Wikipedia), but nothing actually concrete. I'll reserve comment on the merits, and instead focus on two problems, which will likely result in its dismissal.
First, the timing issue. He's been running for months, so the thought that there is a pressing need to act now, where no one has acted before, would lead most lawyers to the conclusion that a restraining order (and particularly an emergency injunction) is probably a loser.
Regarding the rest of the claims, I would imagine the entire complaint is going to be dismissed for lack of standing, particularly since the complaint does not address standing in any form. The question becomes (to me anyway), who would have standing to bring a claim against someone running for president? I think the answer is that there is only one person, the current president. Maybe there are others (DNC national committee chair, another party's nominee), but an ordinary citizen is, in all likelihood, not one of them. The remaining question is whether this lawsuit is frivolous enough to merit sanctions.
As it currently stands, however, it seems that the case was delayed pending service of process. See Motion denied in Obama lawsuit. That article indicates that the senator has been served, so I would imagine the actual dismissal can follow in short order, followed by the standard request for costs.
I may post the link to an article based on the court's response, but I doubt I will devote much, if any, more time on this topic. Assuming it gets dismissed, I'll be curious to see how much more time and money gets wasted on trying to appeal it. Cf. Philadelphia Attorney Phil Berg Demands Disbarment of (3) U.S. Supreme Court Justices. If only Jonathan Lee Riches would file a complaint out of this one.
Tuesday, September 02, 2008
Soon off to vacation, but first, a comment equating Gov. Palin to the Miers selection choice
I am not going to wade into these political waters at this time, mainly because I am going to get away for awhile and will be away from the internet. But with John McCain's selection of relatively novice governor Sarah Palin, it instantly reminded me of when President Bush selected White House counsel Harriet Miers for the Supreme Court. With that seemingly political mood turning the entire process into a judicial death knell for her nomination, I can only wonder outloud if this selection will have the same result, only without the ability for her name to be withdrawn.
Others have written about this connection as well. See Sarah Palin is not Harriet Miers; Don't Call her 'Harriet'; Sarah Palin is the New Harriet Miers; Palin: Dangerously unqualified for VP. Now, I have only glanced over these articles, and a search for harriet miers and sarah palin yields over 28,000 webpages and 454 blog entries, so it certainly has to be on the Republican party leaders' minds whether this choice (or gamble, if you will) is going to pay off. My point is, if you are equating the vice presidential choice as a gamble, doesn't that say something about the choice itself?
There are several rumors circulating about Gov. Palin, which I am not going to discuss here without investigating them first. Stay tuned.
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Monday, August 25, 2008
One week to go in clerkship
I have only a few things left to do on my list of things that need to be done by Thursday or Friday, so it certainly continues to be busy as I get things ready for my replacement. And with Biden getting the surprise (sort of) nod for vice president, the news has been filled with plenty of things to keep me busy.
I'll only write briefly on an article that was on Above the Law the other day regarding Obama's economic plan. See The Obama Tax Plan. I always laugh at the comments people post on above the law (to the extent I even read them anymore), and my only comment regarding this particular article is the disclaimer at the end regarding the author: "Disclaimer / Disclosure: Since April, five weeks after I wrote the original ATL pieces, I have been doing unpaid volunteer work conducting research and interviews and writing memos for an adviser to the McCain campaign. I do not speak for the McCain campaign or for my day job employer."
Isn't it sort of funny that even ATL has succumbed to letting everyone chime in on the effects of a hypothetical tax plan that effects only a fraction of the population? Granted, I'm going to be in this tax bracket very soon as well, and admittedly haven't crunched the numbers myself, but give me a break. I have things to say about all of this, but no time to say them. Maybe someone will point out something I'm missing or not paying enough attention to with regard to these competing economic policies, which, to me anyway, seem fairly similar on the bottom line.
Back to work.
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Tuesday, August 19, 2008
Less than two weeks to go, and probably less if i use the last of my vacation time
It has been incredibly busy, which I still think is kind of odd, but mainly because I have been trapped with the school mentality that August is the end of summer where everything is comfortably slow, and I guess I'm just going to have to get used to the fact that the answer is "not necessarily."
I am certainly looking forward to getting this clerkship bonus, which should help cover some upcoming travel plans. In the meantime, I need to finalize my fantasy football draft and see if can improve again from last year's paltry finish. I can tell you one person that I won't be drafting this year, and that is Shaun Alexander.
And has anyone else noticed that the price of gas has dropped without anything fundamental changing besides consumer supply and demand? Interesting indeed. I do love how quickly the news has jumped from the headlines of "oil could be $300/barrel" or "pickens plan estimates oil to hit $200 by december" to "oil could be $65 by the end of the month" and other estimates which basically demonstrate without ambiguity that nobody understands this mess. At least in a couple months I will not have to worry so much about that particular expense.
Saturday, August 16, 2008
Right to privacy and strict constructionism
Sadly, I am doing work on a Saturday night with two weeks to go in the clerkship. In the background, I am listening to Pastor Rick Warren attempt to grill the candidates on various "hot button issues" at the Saddleback Civil Forum. See Obama and McCain Try to Woo Conservative Voters at Forum; McCain and Obama cite moral failures; O.C. Matchup Between Obama and McCain is a Prelude to Debates. There will be plenty of news on this that will continue to monopolize the news.
My point is with this, and this is a technical legal point. Maybe someone can enlighten me on how to reconcile it. The debate over the "right to privacy" appears to have settled into some sort of acceptance that it is part of the penumbra of rights contained in the bill of rights. From a strict constructionist perspective, however, the "right to privacy" is not in the constitution. So, how can you be for both without being fundamentally at odds?
I haven't given this much thought, and perhaps they can be reconciled, but this always seems to come up in the judicial nomination debate. I remain convinced that the general american public, and probably a significant portion of the legal profession, has no understanding of the politics that goes into this process. Nor do I think that most people (lawyers included) actually understand the nuances of strict constructionism versus the constitution as a "living, breathing document." In the end, the debate is pretty academic, but I cringe whenever I hear a non-lawyer (such as John McCain) or even a lawyer (such as Barack Obama) attempt to dumb it down for the general public.
Is there a solution to my legal conundrum or is it simply one for the academics and pundits to debate over?
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Olympic glory
Despite what I said earlier regarding the Olympics, and the various oddities that have emerged with the coverage (the lipsynching girl, the children used in the opening ceremony, the potentially forged passports of the gymnasts, among others), I have been watching most of the events at night, which has been taking a surprising amount of time. After watching Phelps's .01 second victory for gold number 7, I will be watching him go for the record 8th gold medal tonight, and I hope he gets it.
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Thursday, August 07, 2008
The site that purports to invite people to litigate
There are so many more pressing issues to write about, but I wanted to take a few minutes and write about this "who can you sue" website that has been over the news lately. I may have written about this idea earlier in the year, but my point with this report and "service" is more in what it does than what it does not. See Who Can You Sue? Click Here.
The concept of using this website to see if you have a worthwhile legal claim is a little more detailed than it seems to be, and something more than just a simple referral site. The article suggests that legal advice is actually given over the internet: "Wolfe maintains his service could just as easily help someone realize he doesn't have a case — or that, while they may have a legal claim, it won't generate enough money to interest an attorney to take it on." While it then decides to refer the "client" to someone in their jurisdiction, I just wonder about the unauthorized practice of law implications this site subjects itself to.
Then again, the site probably self-selects its target market (or the target market is self-selecting). I just wonder how many dopes are going to be roped into giving this site money to find out that they really don't have a case. I also wonder how many dopes are going to be led into thinking they have a suit, before an attorney from whatever jurisdiction they are referred to says otherwise. I tend to agree with attorney Richard Sharpstein's sentiments: "Our country's courts are clogged with unnecessary and frivolous lawsuits which delay, if not obstruct, the access to courts of people that really need to get there, that have serious legal grievances." I do acknowledge Prof. Lidsky's point that it is another potentially effective internet tool. Then again, they said the same thing about blogging, and look at all the white noise that has been created by that concept.
In the end, if you're foolish enough to check out a website instead of a local attorney, who probably could tell you a much better answer for the same price if not less, you deserve to have your money taken. Obviously if you have a case, you shouldn't need a website to tell you so. The close of the article makes the best point: "However, if you're looking to use the website to find a good lawyer, in most states you could do just as well by checking with the local bar association. In Florida, for example, lawyers can sign up for the state bar's referral system by paying a $125 membership fee, agreeing to charge clients only $25 for an initial 30-minute office consultation and guaranteeing $100,000 in liability insurance coverage."
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Tuesday, August 05, 2008
Less than a month of the clerkship to go
With what little time I have left in my clerkship, I must confess that I am going to miss it. I certainly recommend it to anyone, and I believe it's reasonable to assume that anyone who took a clerkship would agree that it's a wonderful experience. I've written about clerking a few times over the past few months, so here are some more thoughts about it.
I could write many things about it, and perhaps I will write more over the next month and between the time I start the new job, but I'll hit on the high points since now is the time people are probably getting their applications together to apply for clerkships to begin in fall 2009.
Over the course of your clerkship, and hopefully early on, you (the clerk) will start to get a feel for your judge and the way cases are handled in your court. The workload probably accelerates this effort. I found the best way to learn the writing style of the court (and more importantly, the judge) was to read carefully other opinions that had been written in whatever area I was covering. Not only did that give me a good idea for the law, it gave me a good idea of what facts were considered important and how they were presented.
After a dozen or so cases and probably as many weeks, you should become more comfortable in spotting the underlying issues that are really being debated within whatever area of the law is. This is usually more clear in criminal cases, since there are 50 state jurisdictions and over a dozen circuits (plus a supreme court) that have probably already answered the question, albeit perhaps in different ways. I was always pleasantly surprised when I saw a brief intelligently cite to how other jurisdictions or circuits have resolved or handled various issues, and obviously my role as a clerk was to attempt to synthesize them into some workable and easily read format.
After eleven months of dealing with various criminal issues, I am certain I can put together a brief that would either affirm or reverse any criminal conviction (depending on what side I am on), or at least cause the court some pause in going with the other side. (This last comment is a joke).
At the halfway mark, you should be able to spot whatever issue and gauge relatively quickly the merits of the case. Given the volume, you probably have already learned this, and if you've set your RSS feed to whatever decision the US Supreme Court (or your fellow clerks) have written, you should be well aware that current issues always crop up pretty quickly in unforeseen ways. At the very least, if you have the opportunity to analyze some newly created precedent (good or bad), why not use it?
By the end, however, you'll probably be pretty anxious to get started on learning the ropes at a job where your role is less of a neutral arbiter and more of an advocate. Chances are a lot of your habits will carry over, and you've gained a perspective that is valuable to whatever firm you've decided to go with. You'll also be pretty used to the government hours, and I would venture to say that it's fair to assume that's one nicety you won't be able to take with you.
I'm sure I have some other thoughts rolling around in my head about this, but that's enough for now. If any other clerk has something to add, feel free to comment away. I'll save thoughts on the clerkship bonus, some updated application thoughts, and what not for another day.
