OnNew York Post Online Edition: business

New York Post Online Edition: business
Just a quick thought . . . Gore wants to start a left-leaning channel focused at youth.

This is not the first time that a Democrat wants control over children's education: the NEA, for example.

What philosopher of the 20th century preached similar tenets?

"Our educational policy must enable everyone who receives an education to develop morally, intellectually and physically and become a worker with both socialist consciousncss and culture."
Mao Tse-Tung, On the Correct Handling of Contradiction (1959), quoted in the Little Red Book, chap. 16.

Interestingly, Mao had more interest in teaching facts than Democrats. See Little Red Book.

Free speech defeated - The Washington Times: Editorials/OP-ED

Free speech defeated - The Washington Times: Editorials/OP-ED

Should the recent case of McConnell v. FEC be seen by Republicans as a victory for the strict constructionists? Is Justice O’Connor pulling the left wing into understanding that speech is ideas communicated through movement of the lips, tongue, vocal chords, etc. Justice O’Connor has maneuvered the left wing to reading the Constitution as allowing Congress to regulate elections. She has put all this together to show that spending money is not about the movement of lips to communicate ideas.

Since the Warren Court, the left wing has been happily following Justice Brennan’s doctrine of the Constitution as a living document. Brennan believed that the Constitution should be read today with the understanding of the words’ meaning as based on the most recent edition of Webster’s and interpreted to allow that definition to apply. It lead to interpretations of flag-burning and pornography as protected speech. See Scalia’s dissent in McConnell.

This means that the Constitution never means the same thing from day to day, as President Bush discovered in this case. Speech had a fifty year or more precedent of allowing expression. Now expression is limited when it comes to spending money.

Never mind that in reading the rules of the Constitution, the first amendment is more important than Congress’s right to regulate elections, since the first amendment was enacted later. The first amendment is very simple. Congress shall pass no law. If it does, the law would seem to be void on its face. But this is irrelevant in this case because speech is not spending.

But if we look at the actual law more closely, the law does not prevent all spending. Just spending by corporations. This would seem to mean corporations have less freedom of speech than individuals. Strange result, but okay. Individuals vote. Not corporations. Individuals speak. Not corporations.

Maybe if the strict constructionists play their public relations campaign well, they can usurp this decision for their own benefit. They can point out that this is the death of Brennan’s intellectual non-sense. Even Justice Ginsberg sees that reading the Constitution strictly makes more sense than trying to have a string of cases decide without any logical connection to the words of the Constitution. The speech cases have broke free of any reigns controlling the case law. This is the beginning of the end for that string of cases.

That, other happy thoughts, and a little pixie dust will get me to fly.

Crusaders versus Jihadists

Crusaders versus Jihadists

Just a quick thought. I have recently done some study of the early development of Christianity and its literature. With the focus on Al-Qaeda, all Americans have been receiving an education on Islam. From that learning by osmosis and reading many early Suras from the Quran, I have a new understanding of Islam's development. From a number of years studying many periods of history from all but Chinese and Central Asian history, I have a working understanding of many dynamics.

With all that basis for my statement, I have a couple conclusions about are working understanding of Islam and Christianity's historical interaction.

Christianity started as a Jewish movement which grew exponentially largely by persuasion of non-Jews to follow this martyred person named Jesus and nicknamed the Christ. For most of the period of Christianity before the conversion of Emperor Constantine in the 320's, Christianity did not have the ability to use force of arms to force adherence to the Christian doctrine, its orthodoxy.

Immediately after Constantine's conversion, Christianity had the power to coerce through government and force of arms. The Romans had historically used force of arms to enforce compliance. This same government to enforce religious compliance is not all that shocking.

This change in Christianity from an expansion by persuasion and example to an expansion that included force of arms made a huge difference in Christianity's expansion and acceptance. Unsurprisingly, a government that pushed an idea either creates or is supported by propoganda explaining the goodness of the government's actions. This is the experience of Christianity that continued for centuries. It is also the experience that Mohammed could observe during his life.

One of the most important differences between Islam and Christianity is not in its historic action: both used force of arms to expand and convert. The difference is in doctrine. Christianity in its holy book and first days after its "prophet" Jesus did not have an experience of use of force. In fact, it can be argued persuasively that using force of arms to convert goes against the New Testament doctrines and experience.

In comparison, Mohammed being the shrewd operator that he was observed the Christian experience and wrote his doctrine accordingly. Mohammed moved from being supportive of Christians and Jews around his community to being hostile to those religions, in fact building systems to be able to say that he did not suppress religions of the Book, his phrase, yet discourage persons from not converting to Islam.

Mohammed encouraged the use of force of arms and killing to spread Islam. In fact, he lead several military actions to acquire land that we wanted. In Islam, there is no equivalent for "those who live by the sword die by the sword." The counter-example in Islam is encouragement to fight and die to have 72 virgins in heaven awaiting the martyred soldier of Allah.

Those two examples do not define the entire interaction of the two religions, but it does explain the doctrines of force of arms.

In the 400 years before Mohammed's death, Christianity had a history of using force of arms to enforce Christian orthodoxy and conversion, mostly as an adjunct to the Roman 900-year history of enforcing its governing will on its subjects. Mohammed observed the success of spreading Christianity through Roman legions. He turned it into doctrine and add the virgins as persuasive marketing. Being from a merchant family, he apparently knew how to sell and persuade.

As Mohammed's system grew through the use of armies to conquer land, particularly Christian strongholds like Antioch and Alexandria, Christians became nervous about their neighbors.

Most of the fWest or the former Western empire -- that portion that historically was governed through the Latin language -- did not have to consider the threat of Islamic expansion because it had the buffer of the Eastern Roman Empire, also known as the Byzantine Empire. This continuation of Roman history covered the territory governed by the Romans under the Greek language.

The West experienced attacks from the western flank of Islamic expansion from Spain into southern France in the 800's. This made the West aware of the problem. Since the attacks did not continue relentlessly, the West quit worrying about this expansion from this direction after a few decades.

The West's concern from that point mostly focused on the threat to the Eastern Roman Empire. Since Byzantine forces gradually lost Christian land in the Holy Land, the desire of the West to protect the Holy Land for Christendom grew into a desire to bring force of arms to the Holy Land.

The current common understanding in America is that the Crusaders created a desire for use of Islamic use of arms to defend themselves. This is utter non-sense. Islam spread by force of arms. Christian Crusades were a response. This is simply the old territorial fight with religion as a new motivation. By the time of the Crusades in 1032 through 1230 or so, neither side could be considered an innocent party.

Christianity had not ever tried to add territory through force of arms until it tried to reconquer lands formerly within the Roman Empire and now under Islamic rule. Islam learned the value of force of arms from a bygone era of Christianity. Chicken or egg? Newton would tell us in physics that each force is met with an equal and opposite reaction. Newtonian physics do not apply to politics or war. Clausewitz suggests a political corollary to his doctrine that would apply to politics: each application of force is met with a mirror image reaction thatpushes back with greater force.

Every poor politician believes that he can overwhelm his opposition with forceful action because such action works in military conflict. However, this is incorrect, or if correct, short lived. If you attempt to destroy your political opposition and they survive, you should expect them to develop a doctrine that seeks your own destruction at least to a level just greater than what you attempted on them. Macchiavelli's Prince understood this by pointing out that a tyrant needs to apply overwhelming force to prevent this type of back and forth. (Never forget Macchiavelli was a republican that wrote The Prince to show that despotism could never lead to healthy society. It was so successful in describing how despots work that it has become a how-to manual for those despots.)

Between Christianity and Islam, each side has tried to use Macchiavellian force to destroy the other. Since each has failed, they have only accomplished the Clausewitz corollary reflecting a strong, more strident response from the other side.

All of this leads to a simple point. Christianity can more easily move away from force of arms as a tenet of its orthodoxy than can Islam. Once the superimposed doctrines of force that Romans and medieval crusaders invented to support their unChristian action are removed, Christianity does not have any doctrine that supports aggressive warfare for conversion or conquest.

Islam on other hand is an entire religion that frames its own doctrine using vocabulary of struggle, conflict, and warfare. The history of Islam, beginning with Mohammed's own actions, reflects that this is more than mere literary license at work. Struggle against non-Muslims is expected and desired. Specially treatment is given the two Religions of the Book. They are not equals. They are to be protected from attack, but they are like wayward children who need to grow up. They are less than Muslims, but they are sufferable.

Once land become Muslim, once a church becomes a mosque, once a family becomes Muslim, none can return to a non-Muslim state. This is not tolerance. This is conquest preservation.

Crusaders are now seen among Christians as a disgusting and misguided attempt to comply with the Bible. We now see that there is no basis in the Bible for this action. Jihadists create a split in Islam, but it is harder to argue persuasively that military force is not to be used under the plain meaning of the Quran. The Quran is written in just that language. A Muslim must see that as a literary device and not a commandment in order to avoid a militaristic doctrine. This is difficult to do for even the most persuasive imam.

The Crusaders are a part of history that Christianity can disavow with credibility. Can Islam truly do the same with the Jihadists?

Insidious judicial activism - The Washington Times: Commentary

Insidious judicial activism - The Washington Times: Commentary

As an alum of the Indiana International and Comparative Law Review, I find the study of foreign law and procedure as well as their histoies invaluable. In my recent study of the English system of equity formerly embodied in the Chancery Court, I find the state of lawyer's understanding of their own history woefully inadequate.

What David Limbaugh writes about is another permutation of that inadequate understanding. In my experience on the law review, I found that there is little common methodology of analyzing international law. This means that looking at other countries' laws can be used to reinforce whatever law is espoused as the solution.

Without some methodology, we lose what of the most valuable aspects of the common law system which is its predictability. It is this growing loss of predictability that is destroying our system.

With no methodology and 150 or more different countries in the world, let alone their component states and provinces, a legal essayist or judge can probably point out a good standard for us to follow.

What about security of property? Well, in China, they can prevent terrorism easily because they have little protection of home and hearth. We need more security. Let's be like China.

What about freedom of speech? Well, in England, libel and slander laws are very tight. This prevents famous persons, including the Prince of Wales, from being spoken ill of in some respects. We need less libel and slander, so let's be more like England.

In fact, to make sure that libel and slander is reduced, we should be more like the Taliban . . . .

Clearly, with these examples, we can justify capital punishment for libel and slander and no protection against unreasonable search and seizure.

This debate about whether to consider foreign law is not new. Even professors on the history of equity debate whether Roman law may be considered to reach decisions in equity because the first chancellors (i.e., judges in equity courts) were priests and versed in Canon Law, an outgrowth of Roman law. See C.J.S. Equity sec. 3. There is no evidence of this assertion in the Chancery's records, because chancellors did not explain their decisions for centuries. McClintock on Equity sec. 1-3. They are just inferences. No historian worth his salt can back up this assertion.

This is just a simple example of how this problem of lack of knowledge about our own legal system exists. In future, I will write about why this lack of knowledge is dangerous. But imagine this lack of knowledge of legal systems can start running rampant through our own legal lsystem! What will that do the predictability of our law? Add that to lack of methodology, we have disaster.

A French Revolution in Iraq?

A French Revolution in Iraq?

This article needs further comment and reflection on the comparative residual attitudes and philosophies arising from the American and Glorious Revolutions against the French Revolution.

Particularly in the American Revolution, an attitude arose and developed of fear of institutions that ultimately leads to stable institutions by creating the institutions natural opposition.

In the French Revolution, the idea of partisan conflict controlling partisan authority created an inherent instability. This lead to five different republican constitutions, two imperial governments, and two installations of monarchs in the same period of time that America had one republic.

The French are very idealistic and found of pure, unmoderated ideas. Reality has little impact in the methodology of analysis taught in French government schools. Pure thought is correct thought.

In the British and American experience thought is empirical, when successful for long periods of time. How else does an idea arise, moderate, and fall without government-destroying revolutions?

The French recent political stability and liberty from Soviet nuclear threats has allowed a natural and almost inevitable philosophical divide between the slow evolutionary change that common law countries exhibit to conflict openly with the revolutionary, idealistic philosophies that the French have perpetuated.

Even so, we are not irreversibly on this course. The Gaullist movement to tear out broken Socialist patterns in employment rules, labor relations, and tax rates shows some evolutionary changes. This is particularly true since Chirac is doing this well into his term and not by sudden, revolutionary changes.

At the same, Chirac's Gaullist psychology (as replete with an inferiority complex -- should I say "Napoleanic complex" -- as it is) is screaming loudly. This is almost the last throes of a dying philosophy.

As the French evolve, may be they change.

Senate GOP Angles for Federal Marriage Amendment

Senate GOP Angles for Federal Marriage Amendment shows that news coverage of gay marriage is generating Congressional action.

I believe strongly that the definition of marriage should not change. I have struggled to make an explanation that is more than a gut reaction. I have thought through the history of Western marriage, and I understand how the gay activists suggest that marriage should not be limited to heterosexuals based on these legal trends.

Think about it. In medieval England, marriage was a specialized form of property conveyance. The woman was property being exchanged to the groom for hard assets like livestock and land. Add on top of this the political alignments that would follow reinforced the barter aspect. "I will give your son my daughter if you will give me political support and military resources."

In this context, even ignoring the religious prohibitions against homosexual activity, it did not make sense to have man capable of owning property thereby own another legally free man by a marriage contract.

The old notions of women as property have thankfully fallen away. Nevertheless, the religious prohibitions against homosexual activity prevented the issue of gay marriage from arising simultaneous to female freedom.

Only now after the rise of the "gay lifestyle" are we going back to re-examine the full legal ramifications of female equality in the marriage contract.

From the proponents of gay marriage, marriage is nothing but a contract. Why should gays not be able to participate in such contracts? Seems logical, right?

Being Protestant, I don't often get the opportunity to see the "old church" of Catholicism in action. I went to a Catholic wedding yesterday. That ceremony reinforced the old Catholic doctrine that creating and raising children is one of the central parts of marriage in the Catholic tradition.

While this doctrine is "old fashioned," it is practically sound. Without reciting research and practical examples of two heterosexual parent stability, children are better with male and female influence. Does that make it impossible for a gay couple to serve as good parents? No. Is it even necessary to have two parents? No. It is still the optimal solution when comparing healthy heterosexual couples to healthy homosexual couples.

In my observations of successful behavior, work, business, economics, and loving relationships, one common characteristic predominates: systematic and adaptive structure. In any of these cases, systems well implemented do not guarantee success. They merely increase the probability of success. We know from research that the most probable family structure that leads to good behaviour and healthy attitudes is the "traditional stay-at-home mother, father working" system. It does not have universal success. We are human.

Every factor that moves away from that scenario increases the probability of a small problem having increased difficulty in the long term health and success of the children of that household.

Unlike many of my "religion dictates government rules" friends, I believe that we as a society should state what optimal family situation is desirable and structure the society to encourage optimal behaviour and attitudes. If we can set the vision of success, the likelihood of that becoming predominate increases. Laws are written accordingly. However, that does not mean criminalizing other views. To be extreme, law should not prohibit homosexual child raising. It should make it the less favored approach.

Lifelong heterosexual marriage with healthy relationships should receive the benefits of all doubts. It should be treated differently because the wider the application of that method of family building, the greater health of our society. That is is a fact.

Here's a thought exercise: will you as a driver never have an auto accident if you religiously change the oil in your car, rotate the tires on schedule, and replace the brake pads at the slightest sign of wear? Never say never. Other factors are signficant: other people on the road being just one. However, is your ability to avoid likely problems that lead to accidents? Absolutely. Desired systems of behavior make safer roads. The same with marriage and children.

Discussion of the matter without children is a discussion for another day.

Arnold is IN; Conservatives Should Welcome Him

Arnold is IN; Conservatives Should Welcome Him

Arnold may nearly rhyme with Ronald. He is not Ronald. That is wonderful for conservatives!

W. has said that he wants a big tent. Since the decline of the Rockefeller wing of the GOP, the communist wing of the Democratic Party (compare the Communist manifesto to the Democratic Party platform) has easily complained about the radical right.

Arnold can devestate the Communist non-sense. His victory with the support of the White House will help more moderate persons that feel more comfortable with GOP economics can feel more comfortable disagreeing with their new-found party over social issues. That is good.

Recent trends of philosophical communication and debate are showing that the GOP conservative wing is persuading more and more of the population to be conservative. Rush, Hannity, Michael Reagan, and one of my favorites Laura Ingraham are devastatingly insightful. Compared to what the left offers, this is good news for future growth.

The biggest problem in accelerating that growth is psychological reluctance. We are already committed to our ideas. Admitting that one is wrong requires internal struggle. In getting people to admit their error, a classic psychological comfort building technique is to show that the person is not unique. One nationally known sales guru David Sanders used to get up on stage and say, "Last night I was speaking and 20 people did not know how to solve this problem. How many here have the same difficulty?" Sanders could get half the room to raise their hands when most speakers would be lucky to get one.

Sanders demonstrated that you need to make it easy for some one to surrender.

Arnold is what the GOP needs to get more people to surrender their 1960's communist theology in favor what their rationale intellect says is correct.

Arnold is not ideologically pure. But is comfortable, familiar, and inviting. He is the man that you want at the door to your tent party. With him you will need a bigger tent. You will have more people listening to your persuasive policy wonks. You will have greater conservative influence.

Another apparent weakness that is helpful is the building of the legislative center. For Arnold to win what he wants legilslatively, he will have to win over Democrats. That will look bad to conservatives because social programs will grow. I don't like that. However, the current legislative momentum nationally is still strongly New Deal. To control the creek in your backyard, you are best not to put a Toyota in front of it. You are most likely to succeed in using the Toyota to move dirt into place to build a levee to push the water off its course. Nudge it from the side. Slowly you will move the creek as far as you want. You will make a lot of effort that does not seem productive at first.

A moderate Republican with great appeal is helpful to conservative because it is part of the process of moving dirt. Each person persuaded is a necessary step to turn the movement of the political waters.

Quantifying Qualities of Bureaucracy and of Entreprenial Effort

Quantifying Qualities of Bureaucracy and of Entreprenial Effort

I sat in sales class several months ago. The pitch line pushed was about being unique. The theory was that most sales persons are merely selling commodities. Each sales orgnaization must work to make itself unique in order to stand out with its commodity.

The solution proposed was to coin a new phrase, "I am different because I am an intrapreneur." The theme was that an intrapreneur does everything he can within the system to serve his client.

I was reading an article in the Washington Times this morning. The theme was that the State Department is broken because the inmates are running the asylum: the Foreign Service is running the Foreign Service.

At first blush, this seems inherently wrong in a democratic republic: why have elections and officials appointed by the elected if the elected can't run the system. The canned answer is that the system exists to avoid the patronage system that ran amok in the post-Civil War era.

So if I am to understand this argument, in the 21st century, we should keep an answer to 1880's problem. This is wrong.

Government has a very easy measure of good management -- are we stuck with the same people for years? The Washington Times article gives the stats. My conclusion: we are stuck with the same old Foreign Service. Why is this a problem?

Look at any private enterprise and compare. In private enterprise you can look at the system and you will find that the staff changes. Some due to death (yes, foreign service officers do die, this and sickness are about the only similarities), some due to better business offers at other companies for promotion or money or location, some due to the desire to create another new enterprise, some due to firing for incompetence or misconduct or incongruity with the new management. I have not studied enterprise in a systematic manner but I would suggest that the Washington Times is slightly off in comparison. I would bet ththat very few terminations can be explicitly identified as incompetence. Most of those terminations are by forced resignation to "spend more time with my family" or to "pursue other opportunities." Yet the numbers departing are probably far higher than in government service.

The biggest causes of change in personnel are that new management usually wants to seed the system with its own men and women. This seeding process is what is missing in the Foreign Service.

When a new president is elected, too few persons are appointed that want to carry out his agenda and too few can be terminated simply because they are not the new management's men.

This continuity of personnel is not healthy. The Foreign Service and the Civil Service need to have some risk of losing jobs when administrations change so that the president can more quickly and efficiently implement his agenda.

The problem is that the government is run by mostly members of the Civil Service who happen to be members of the largest union in the country, the federal government employee union. Who do you think they vote for and support? Easy, Democrats. Who do you think is going to fight to keep their personnel in place?

The Democrats don't need patronage. They already own the government. And you want to know why government does not work well whether in the Foreign Service or the Civil Service. We need a new system that has greater likelihood of change with new administrations. The greater the change in management, the better the result. Let the clerical and non-decision-makers stay, but be more at risk to termination and management change alone will be effective.

To Pack or Not to Pack: Getting Control over the Judiciary

I have little use for many of the innovations that FDR gave us. They innovated in how to steal American republican democracy from the people by legalizing macrobribery.

One of the ideas that FDR had that is usually pilloried is his plan to increase the size of the Supreme Court so that he can appoint new justices to the bench that would support his New Deal agenda. This idea went down in flames.

However, there may be some new value in that old notion. Even if pushing that idea has the same effect that it had in the 1930's -- scaring the Court -- it would be valuable.

Simply put, the Supreme Court could have an additional three members added to it. This would give Bush the ability to name more conservative justices and increase the rate of turnover in the Court. As it is today, our justices can stay on the bench for decades because our healthcare system is spectacular.

This increase in the size of the bench would allow more subtlety in opinions to be aired. It would allow the Congress to have a greater impact on the course of the Court's activities -- reinforcing the check and balance effect. It would force Congress to regularize and control the advise and consent process because higher profile nominations would have to go through more often.

The importance of getting one or two appointments to the bench per presidential term would diminish. As much as I would hate for Clinton to have had a greater impact on the bench, even his appointing more members would have been healthier, since each appointment would be less powerful.

Let's look at this mathematically how appointments to the Court have worked in practice over history. I am going to make some broad generalizations since I have not researched my understandings in depth, but the information is readily available by doing a detailed analysis of the historical composition of the Court.

When John Jay was appointed to the Court by George Washington, life expectancy for the segment of society that was put on the bench (the educated, wealthy, etc.) was better than society at large. I would hazard a guess that it was still only about 65. Persons when appointed were usually well established in the lives. So, ignoring the turmoil of the Court's membership and other neophyte aspects, Court members did not last much longer than 15 years. Even for a 6 member Court you could get a new court appointment every two out of five years -- a ratio of 2:5.

As John Marshall came to dominate the bench for his nearly 35 years on the Court, we probably had an average stay on the bench of 20 years. Effect 6 appointments every 20 years. (Bear with this unscientific approach, please.) Ratio 3:10.

During FDR's term, my recollection of history is that he appointed about 6 members to the 9 member Court over his eleven years in the White House. This is a 1:2 ratio. Since that time, we have entered a period of very long tenures on the bench. The current bench had its first members appointed in 1973 and 1975 or so. Since that time, the entire bench was appointed. (That is only one appointment per seat, if you ignore the technically very significant double appointment of Rehnquist first as associate justice and second as Chief Justice of the United States. In another context, this is not significant to votes since Rehnquist's vote counts either way.) The bench has been replaced been replaced as at a rate of 3:10 or nearly once every 3 years.

Looked at another way, four Congresses have had no voice about the composition of the Court. That is more than one whole Senate cycle that had no voice about the composition of the Court. We are now working our way to completing another Congress with no voice. (This one will likely only have a voice if a retirement is annouced before October 1, 2003, if one of the justices dies or retires due to health issues prior to the next election.)

The checks and balances on this Supreme Court have been woefully inadequate. The argument put forward by Scalia, Thomas, and the Chief Justice are falling on ears tired of hearing them. The middle is soft. The left is devoid of intelligent argument on some of the most important cases of the day (see, e.g., University of Michigan undergrad case).

With Scalia, Thomas, Bryer, Kennedy, and Souter so young, we could see Rehnquist, O'Connor, Ginsburg, and the elder Stevens be replaced in the next 5 to 10 years. Once that cycle is done, we might see the next Court stay together 15-20 years with no change, except by the intervention of God. This is a daunting prospect.

If the immediate need of Bush looks too self-serving, Bush should suggest that that Court size be increased in size to eleven or thirteen over the next two presidential terms -- the current one excluded. The benefits would be many:

1. More justices to cover the increasing number of Circuit Courts of Appeal;
2. More justices to divide the opinion writing between, hence allowing more cases to be heard;
3. More appointment opportunities to increase the checks and balances on the Court;
4. More chances for politicians to voice their opinion on the Court thereby dilluting the intensity of debate over any one appointment;
5. More openings for talented voices to enter opinions on the significant questions of the day;
6. More chance to debate the proper procedure for managing debate on appointments if the number of appointments is known over the transition period;
7. More chance for the debate over the Court to be spread through the grass roots and honestly reflect the opinions of the less political and probably more moderate portion of the country (contrast Schumer and Santorum to the middle of the country).

What was once a political chance to shift the middle of the Court for greedy president may be the answer to our current breakdown and failure in today's system.

Justice Thomas Hits a Home Run!

In the just-released racial quota in law school admissions case, Justice Thomas sums up the entire problem with the liberal position.

“'[D ]iversity,' for all of its devotees,,is more a fashionable catch-phrase than it is a useful term,especially when something as serious as racial discrimination is at issue.Because the Equal Protection Clause renders the color of one ’ s skin constitutionally irrelevant to the Law School ’s mission,I refer to the Law School ’s interest as an “aesthetic.” That is,the Law School wants to have a certain appearance,from the shape of the desks and tables in its classrooms to the color of the
students sitting at them.

"I also use the term “aesthetic ” because I believe it underlines the ineffectiveness of racially discriminatory admissions in actually helping those who are truly underprivileged.Cf .Orr v.Orr,440 U.S.268,283 (1979)(noting that suspect classifications are especially impermissible when “the choice made by the State appears to redound ...to the benefit of those without need for special solicitude ”)."

Dissenting opinion of Justice Thomas in Grutter v. Bolliner, 539 U.S. __, slip opinion at 6, n. 3 (2003).

He describes the liberal position as being entirely about appearances without regard to impact.

Let's up we can get through the batting line-up quickly. We need another case on this issue soon, so that this slugger can take another shot at the fence. Let's just make sure we have some new justices on the bench that are more likely to get on base than to cry about the pitches being too fast.

If Justice Scalia is to be believed in his dissenting opinion, this case opens up so many new issues for lawsuits that we just need to wait a few short years, then Slugger Thomas will be back at the plate!!!

Concerns about "Gay Marriage"

During my morning rant at the television embodying Howard Dean on Russert's program, my wife raised a question that stopped me cold.

"If gays can marry, what would keep two women living as roommates after college, for example, from deciding to 'marry' for benefits? One may have a job in big corporate America and the other employed by a four-person business. Now big corporate America would end up with another medical bill. Doesn't this seem like a huge invitation for fraud? How do you assure that the two women are lesbians or not?"

All I would add is that the biggest case of marriage for benefit and government observation is immigration. And we all know that the INS has terribly efficient at identifying marriage fraud in that case, right?

Life-Long Appointments vs. Tenure

Two of the biggest areas where arguments can impact the political debate have somewhat similar institutional protections: federal courts and universities. Judges are appointed for life. Professors are given tenure. The principle behind both is the ability to freely express opinions without fear of losing their jobs.

Once you dig beneath the surface, the similarities are not very strong.

Trial court judges may be guaranteed a job, but their ideas are not guaranteed to go unedited. The trial court judge can be appealed. This threat of being overturned has varying impacts on individual judges. Some judges take great pride in the percentage of cases that stand after appeal. Others issue their opinions without much consideration of the actions that the appellate court will take. At least, it may seem that way. However, even these judges must follow a set of rules and acceptable methodologies for issuing opinons. These judges who wish to stick their finger in the eye of the appellate court still need to hew to the line that the appellate system dictates, otherwise the appeal will knock over the trial court's action like puff of air gives flight to a feather. This tends to moderate nearly any opinion or action of a trial court.

That is not all that different from academia, right? When a professor writes a piece that sticks his finger in the eye of the university administration or the proponents of a conflicting idea, there is no moderating force on the loose cannon. The only way to put controls on a professor is if the professor violates a provision of the university's code.

The ideal promoted in academia is that tenure promotes the free expression of ideas. As is long since a widely known secret, for many years there is little freedom of expression on campus, unless the speaker hews the liberal line. Simply put, on many campuses, conservatives are not given tenure. In 1969, my law school at Indianapolis became a full-time institution rather than merely the night school branch of the other Indiana University law school. This anomoly of two law schools in one small state's university system arose in no small part because conservative professors rarely were given tenure on the Bloomington campus. To this day, nearly 25 years later, that political segregation still remains. This institutional division was necessary to truly allow nearly any expression of conservative position and obtain tenure.

The largest reason for this liberal dominance is that universities are one of the few insitutions that completely ignore the basic need in all human society to check outrageous behavior. The founding fathers manage to build into the Constitution the concept of checks and balances. This institutional concept has done more to preserve freedom than any status-conscious system ever has. Academia tries to preserve freedom of speech by a grant of privileged status. This is the equivalent of the king's favorite having freedom of speech.

Freedom does not come from institutional grants of status. Freedom comes from systems having separate institutions overlapping charges. Checks and balances. Universities have preserved the freedom of speech of only favored persons who tend say similar things.

Universities then end up with these protected persons rotting in place until retirement day. Only then does the institution receive a jolt of new thought.

Tenure may have made sense when Ph.D.'s were a rare commodity. They are not now. Universities need to have more potential for adaptation and moderation.

I am not actively involved in academia, so I am not well informed about the alternatives to fix the problem. The symptoms are all too clear. Academia is not immune to the hubris that develops without countervailing persons supervising or monitoring behavior. How many people do you know that can live up to the standard of morality of doing right even though no one else sees you? We have assumed all tenured professors can. Does this make sense?

Reforming the Concept of Judicial Reform

Every young Sunday school student knows the story of King Solomon and the baby. The story goes that two women presented themselves before King Solomon to settle a dispute. The two women claimed the same baby as theirs. King Solomon listened to stories presented by each woman. After some consideration, he called for his sword. He declared that he would split the baby in two and give each alleged mother half.

One of the women, in tears, screamed, "Give the baby to her! I don't want half!"

King Solomon awarded this tearful mother the baby. His logic: only the real mother would love the baby enough to give it up in order to save it. (For a humorous re-interpretation of this story, see Joseph Heller's God Knows.)

This message has been interpreted many ways. As I understand the law of the era: disputed property was divided equally. (Let us lay aside the distasteful suggestion that a baby is property.) Let me suggest an interpretation that is particularly relevant today: forceful and rapid enforcement of rules leads to rapid resolution.

Many of the modern efforts to fix our out of control legal system are addressing the symptoms of the problems in our legal system. As a lawyer working in the courts, judges have been taught that the phrase "split the baby" means "find the middle ground between two arguments." Like the phrase Uncle Tom, the vernacular use of phrase is nearly completely the opposite of what the original story describes. We think of splitting the baby now as meaning compromising to avoid judicial action. In truth the story is about resolute judicial action invoking compromise.

Many of the court cases I have been involved in, the judge listens to arguments, delays making decisions, pleads for the parties to settle, makes meaningless and irresolute decisions, and complains privately of their overwhelming schedule.

The court rules were not designed for this treatment. The court rules are designed to question whether every case belongs in court. See, e.g., Federal Rule of Civil Procedure 12(b). The rules on this have been so watered down that situations exists where one of my clients has no idea who the person suing him is or what my client is supposed to have done wrong to end up getting sued. Yet the case law interpreting rules similar to FRCP 12, noted above, prevent this case from being dismissed because the court procedure is supposed to uncover this cryptic information. If a case is completely out of line, the attorney bringing the case could be sanctioned by the court. FRCP 11(c). This procedure is rarely used.

Next the court rules are supposed to inquire if after the plaintiff has stated his case and the defendant has answered that complaint, the court is supposed to inquire whether the case can be settled without further inquiry. See, e.g., FRCP 12(c). This rarely happens because the defendant always denies everything of relevance. Some judges have been heard to say in open court that the procedural requirement of answering a complaint is a waste of time. After judgments are entered, most reasonable persons wonder why the parties could not agree on more of the story at this early stage.

Next the court rules allow a procedure for exchanging information. The federal concept of this process of discovery is that everyone surrenders all of their evidence or information to the other side without any particular procedural requirements. Nevertheless, conflict that judges need to resolve happen often in cases. See FRCP 26 to 37. Failure to follow these rules is supposed to incur sanctions. FRCP 37. This threat is rarely carried out.

The next step is to find out if there is any legal reason why the matter needs to go to trial. This is done through the process of summary judgment. See, e.g., FRCP 56. The idea here is based around the delegations of responsibilities between the judge and the jury. The judge as the ultimate voice on law is entitled to resolve all issues of law. The jury is the ultimate voice to resolve what happened. If, at summary judgment, the judge does not believe that the key points of what happened are in dispute, he can decided as a matter of law who wins. While this is not always likely to happen, because there is usually a dispute about which direction had the red light, what promises were made to make a contract, or who committed adultery. Even in these cases, just deciding what the rules of the game are is helpful. If a judge limit the parts of the story that are in dispute because everyone agrees that the parties met face to face to make their contract and that no evidence contradicts that $50,000 was the onlyoffer of payment, why put to a jury the question of what amount of money was offered? We know $50,000 was offered. Now the jury can focus on what actions were promised to be performed in exchange.

This is where judges procrastinate and avoid making decisions. All too often judges just say, "No one wins at summary judgment. Let's go to trial." Now the parties have to argue in front of the jury about how much money was offered to be paid. Summary judgment is a game of logic. Too few judges are well enough trained on issues of logic to feel comfortable focusing the issues for the jury.

This is one of the most damaging parts of our legal process as practiced today. More cases should be meticuously focused on this stage. The sharper the judge's knife in carving out the details of the dispute, the less there is to dispute. If the matters to dispute are reduced by resolute decision-making, the parties can more clearly forecast their odds of winning at trial.

Since preparing for trial is among the most time-intensive parts of litigation, this is the best point to resolve to disputes out of court.

This is where most efforts to avoid trials truly begin in earnest. Many states are now requiring that parties be forced to bring in a third party, called a mediator, to supervise and manage face-to-face settlement discussions. The mediator can't decide any issue because his job is to facilitate. Since this process results in nearly 60-80% of cases settled, it has rightly been hailed as a successful addition to the repetoire of resolving cases short of trial.

The other solution offered is arbitration. Often arbitration cases are decided without the legalities of court. This is promoted as an improvement because it makes the process faster. (Note my prior comments on speed in the movement of money for a corroborating concept for this argument.) However, this is based on hiring an outside party to make a fast decision with less information available or considered. The worst part is that the arbitrator has little sense that anyone is truly supervising his activities. The courts by law have little recourse to fix erroneous decisions. This bothers me as lacking in checks and balances. Nevertheless, because the parties can cite their case as resolved faster and more cheaply, even if less reliably, this increases the number of cases settled short of trial. Hence, it is declared to be good.

Part of what this misses is that many ridiculous cases are settled in favor of the frivilous plaintiff because it is a better business decision to settle the dispute than go to a confused trial.

This problem arises because the judges are too reluctant to make resolute decisions earlier in the case. Admittedly, this is not only because judges are afraid to decide, although that happens all too often. Many times we have cases decided by appellate courts that overturn cases made on legal rules. The problem is this trend has lead to the increase of time-consuming and non-sensical cases.

I would propose a new standard to this process of focusing on resolved disputes short of trial. I would focus on increasing the number of cases thrown out of court through use of the above procedures. This would require a change of attitude rather than a new program. However, the costs to the system in new salaries, new computer systems, new courthouses, and additional billable hours would do more for helping than more arbitration, reduced punitive damage awards, picking and choosing parties immune from prosecution.

Using this standard, one of the more successful programs in the country is the Indiana medical malpractice review panel. The panel reviews all medical malpractice case before court cases start. The patient is not deprived of court, but he is forced to bring the science about why he should win very early. There are many other aspects of this law that I find helpful, but I would leave this for other commentaries. The net result the number of physicians that actually seek to practice in Indiana has increased dramatically over the past 20 years. The people of Indiana are blessed with one of the most talented pools of physicians in the country with unusually low medical costs. Granted the differences are not obvious enough because Indiana doctors participate in federal programs like Medicare and medical insurance that have regional and national effects on Indiana pricing. This decisive system reduces the incentive to sue doctors for questionable claims. It is a shame that this had to be grafted on to the court system rather done within the trial process.

The next problem is universal in the legal system. The number of persons that flat lie to the court is all too high. The reason for this is simple. With the growing number of people that take the oath to tell the truth, fewer and fewer feel a moral and religious obligation to tell the truth for fear of reprisals from God. So now we are faced with the need to judge those who lie on the stand as a matter of law.

This means that liars on the stand need to feel the heat for their lies. The only means are contempt of court procedures, which are poorly designed to handle this problem because the lie has to be too obvious, or prosecution for perjury.

Prosecutions for perjury are criminal cases that have to be brought by prosecutors. As elected officials in most states, prosecutors want high conviction rates for violent crimes. They don't want to spend their time and resources on prosecuting liars.

The consequences to the overall legal system are catastrophic and result in cascading failures and cascading lies supporting judgments by courts. The cascade is simple. A boyfriend is arrested for theft. The girlfriend comes to court to provide the boyfriend an alibi for the night of the crime. She lies. The jury finds reasonable doubt that the boyfriend was with the girlfriend. The boyfriend is acquitted and back on the street to commit more crimes.

Look at the girlfriend's decision-making process: she believes that she is better off with her boyfriend, so has an incentive to lie. Without a real threat of prosecution for perjury and without a fear of eternal damnation, she has no incentive to admit that he was nowhere near her on the night of the crime.

Let's change the prosecutor's policy on prosecuting perjury: aggressive prosecution even if low conviction rates are likely. Now consider the girlfriend's options. If she lies for her boyfriend, she may get him acquitted but at the personal cost of her own jail time. She now has a harder decision and the odds of the truth coming out increase.

Similarly in civil cases, if we return to the contract dispute, the businessman denying that he owed as much work to be performed is now facing jail time for misleading the court, even if he wins the contract case. Not all persons will change their decision toward telling the truth, but the reliability of witnesses increase marginally with each prosecuted claim for perjury.

The examples of indeciveness and lack of adherence to the rules results in a system that allows runaway ridiculous claims based on questionable testimony and evidence. Mediation gets the case resolution statistics higher, but this has the feel of Vietnam body counts: numbers that provide little evidence of the quality of action giving rise to the numbers.

These problems need to be addressed. Arguing about the value of strict constructionism are intellectually worthy and desirable, but they miss the real problem that exists at the trial court level.

The problems in our system is the gamesmanship that is allowed in the name of justice by the proliferation of cases and rules that, in the name of resolving disputes short of trial, increase the complexity and difficulty of actually deciding disputes quickly and accurately.

Reform of Government by addressing Conflicts of Interest

I saw an interesting article today. It plays into a concern that I have about modern government. Conflicts of interest.

As a lawyer who works on corporate issues both for businesses and charities and on estate planning trusts, I am intimately familiar with the concept of "conflicts of interest."

Since today's liberal society plays the concept of conflicts of interest as a club to batter Republicans with business experience and strong ideas (e.g., Dick Cheney and G.W. Bush in the prior lives running or owning oil businesses), Republicans are not comfortable using this claim against Democrats. Yet, the Democrats are some of the strongest users of conflicts of interest as political strengths. They have a very high proportion of their efforts done by union members whether trade, teacher, or government-employee unions.

The first thing these elected officials do is hire the partisans who placed them in office. Fine. Makes sense. Hire the reliable and similar thinking. That's good business. Why would it not be good office management, too?

But we have a severe problem growing in our society that Derbyshire in the above article only alludes to: the concentration of same thinking from a few unions. Think of it this way, how many union members are represented by the AFL-CIO president? How many managers are represented by the chairman of General Motors? Do GM, Ford, and Daimler Chrysler always agree?

How large a percentage of modern union membership is government employees? Why should these government employees be able to double dip in affecting your life. First, they make and enforce the rules you have to live by in paying taxes, the exhaust that emits from your car, the construction standards of your house, the working conditions of your business, the rules for how you withdraw money from your retirement plan, the rules for when your mother's nursing home is paid by government. These employees propose the government spending budgets, which always increase (even when we are told they have made cuts, a/k/a baseline budgeting). These same employees then get to organize as a union and make political demands from the government -- including active involvement in the elections process.

Don't get me wrong. Citizens voting makes sense. Government should enforce rules. However, the problem is the pervasive nature of the same people having so much voice being paid for by the other citizens.

In my world of law, conflicts of interest occur when the rights of one group require the rights of another group to come into conflict. For example, a member of a charity's board of directors cannot receive a grant from the charity of any significant size, otherwise the charity can be punished. A corporate board member cannot learn about a business opportunity at the board meeting and then start his own competing company to seize that business opportunity. To handle these conflicts of interest specific procedures are put into place. The usual means to resolve is to announce the conflict and take the person with the conflict of interest out of the decision-making process. The effect of not using the transparency is the board member can be punished and the company punished.

This system works well in small groups. It is difficult to apply on a governmental level. Yet, the idea is important. Transparency in these small groups is the key part of the process.

Government transparency is needed with these double-dipping unions. The default on these conflicts of interest need to be toward benefitting taxpayers when conflicts occur, rather than benefitting government employees.

Is there a cycle of violence?

In today's National Review Online, an article appeared questioning the commonly accepted wisdom of a "cycle of violence."

The article is correct. Terrorism is an attack on a civilian population the same way that harrassing actions are an attack on a military unit. The difference is the target. I find no moral basis for attacking civilians unless and until those same citizens take up arms as a militia, in the minuteman sense. Otherwise the attack on civilians is merely assault, battery, attempted murder, capital murder, and, oh by the way, suicide. These are not merely "homicides." Hitting a pedestrian who jumps in front of traffic is a homicide. Is rape intercourse? Yes, and so much more. Intentional homicide is homicide but it is so much more. It is murder.

Any first year student of criminal law can define the difference between a crime and an accident. Running a red light is illegal. It can lead to an accident. It is an accident if the driver was temporarily blinded by his passenger throwing a drink at the driver's face. There is no intent to harm or knowledge that the light had changed potentially leading to a collision.

It is the mind set of entering the intersection on red seeking to hit an old girl friend's car that is criminal. This mind set is typically illustrated in television crime stories with the refrain "means, motive, and opportunity." The mind set is the motive. Why did the suspect act?

In the Middle East, there is no end to the hatred on either side of the fence between Gaza and Israel. Since this is not a conflict with in one country or state, it is hard to say that this is simply a matter for criminal law and the justice system.

As I have mentioned before, criminal procedure and protection of life, liberty, and property are the benefits of living within a civil society. How a civil society should react to attacks from outside that civil society need to be clarified.

The Treaty of Westphalia makes the first stab at giving a nation state the absolute right to not be molested by outside forces. This gives increased growth to the modern notion of sovereignty. At sovereignty's core, the state will not be lorded over by another state. One state will not molest the other's internal affairs. This doctrine grew in its scope with the Treaty of Vienna in 1815, bringing the Napoleanic Wars to a close.

The idea of how to deal with rogue nations in this scheme has always been easy -- declare war, wage war until the other side sues for peace, and dictate the terms of the peace treaty. Effective treaties end the conflict permanently -- Japanese Instrument of Surrender. Bad treaties perpetuate the conflict -- the Treaty of Versailles. Admittedly treaties are only paper. Actions carrying out the victor's intent are the real magic. Nevertheless, the point here is that this traditional system works well between nations.

But how do we deal with persons outside the system? The Founding Fathers recognized an old fashioned method: Letters of Marque and Reprisal. Congress is given the power "To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water." These old techniques were interesting and effective. So effective that they were outlawed internationally in 1856. In their original character, they were meant to allow a country to sanction an individual to commit acts of bordering on military hostility in a foreign nation to right a private wrong. The notion of interest to me is not that an individual could be empowered to commit acts of war -- that is a privateer, a pirate in a white hat. The notion of interest is that the Letter of Marque was to focus on a non-nation target -- like an individual merchant.

Imagine what would happen in the Middle East if Israel could issue Letters of Marque against specific terrorists in advance. Then when the terrorist was found, his death would have at least been placed before the Knesset. This would look less like cold blooded killing. The Palestinian murdering bombers would more clearly appear to be the criminal thugs they are.

This false circle of violence would be shown to be what is -- continual escalating attacks by Palestinian terrorist with attempts to punish criminal where no criminal justice system can exist. No criminal justice system can be housed on border between Israel and Palestine.

A New Method to Analyze the Economy: Basic Accounting Principles

All too often the discussion about whether to raise taxes or lower taxes focuses on how best to stimulate the economy. It becomes a large question of Keynes vs. Laffler. This is highly esoteric. The real answer is buried in De Soto, not the explorer but his modern name sake.

Hernando De Soto suggests that speed of transactions are important to the success of an economy. That is not surprising. Accountants would have told you that a long time ago.

In a store, assuming that all other accounting is well thought out and implemented, the easiest method to determine if the store is profitable is how fast the inventory of the store is completely replaced. If the inventory turns once a year, revenues are x. If the inventory turns three times a year, revenues are 3x. Simple algebra. In economics the number of times a dollar goes through the economy in a given time period is said to have a multiplier effect. Inventory turns like this could be said to have a three times multiplier.

The biggest problem in our economy today, is that so few persons in politics are lawyers and completely devoid of knowledge of economic theory and history. These lawyers learn early to read financial statements by looking at the bottom line. Unfortunately they do not understand how that bottom line number can be achieved.

Simply put, the government needs to stimulate business in ways that cause an increase in the speed of revenue generating transactions.

A little-known, dirty secret is that money paid to the government has a lower multiplier effect. Think about it. An employee has taxes withheld. In the average, small business, this money is held in a separate "tax account." The money may be deducted and saved for the first two-week pay period of the month. When the second pay period comes, the IRS payment deadline comes quickly thereafter. The employer deposits the money for the two pay periods with the IRS by various banking means. The first money is held for two weeks outside the economic system. This money is slowed down and has an impact on the overall mulitplier effect.

Once the money gets to the government, the money does not get dispersed immediately. Large chunks of money come in on January 15th, April 15th, July 15th, and October 15th from estimated taxes. Similar chunks come in from the above withholding on a monthly basis. Each of these chunks need to be dispersed. Large portions of this money are dispersed in Social Security and similar entitlement payments at the start of each month. This means chunks of money are kept out of economic circulation for at least 2 weeks. This has a braking effect on the overall economy.

The braking is even worse if you consider that a large number of tax refunds have to be issued each June after tax returns are filed. What does this tax refund money come from? Assuming that additional treasury bond issues are not a different analysis, the money is being held out of the economy, too. Another brake on the economy.

This problem may be unavoidable. I don't know. I am no CFO.

Suffice it to say, does it not make sense that the system could be helped by reducing the amount of money that is being temporarily taken out of the system?

The unspoken advantage of reducing tax rates is that it puts more money into the economy each pay period. If an employee had a 1% reduction his tax rate on his $100 bi-weekly tax withholding, that means that each month he has $2 immediately going to his pocket. This continues 13 times per year. Now this person can reliably change his behavior. He can reliably predict that he can afford $26 to be spent that he could not afford before to, say, go out to dinner.

Now the restaurant owner has another diner. Of course, if everyone in the neighborhood is getting $26 more in their pocket, the restaurant owner is likely to have many more diners. Is the restaurant owner paying taxes either income or indirectly with greater employee withholding? Can he afford not to put another waiter on his staff to turn the tables faster and thereby increase the restaurant's revenues -- and hopefully profits?

The restaurant owner can now afford to buy a new car. So can many other restaurant owners and even their waiters. Will the government make more taxes from autoworkers' wages and withholding?

The autoworkers can afford more college education for their children. The professors can afford more travel. The pilots can afford more mortgage payment. The realtor can afford a new car. The autoworker can afford not just tuition but a new barbeque. The retailer moves another grill off his shelf.

The system needs these fast movements of money. Electronic banking has the ability keeps this moving faster and faster. Why not make tax policy allow money to move faster?

An example of slow money braking the system can also be seen in business. Many of the litigation cases that I handle for clients are to collect on their accounts receivable. This means the businesses are owed money. Until the money is paid to my clients, my clients must either borrow money (increasing their costs through the cost of interest paid to the bank) or wait for the money from their tardy client. This means that construction companies that want to put crews to work this summer may not be able to afford as many workers on the payroll. Businesses that have fast payment from clients are able to hire new workers faster. This idea of speeding up the circulation of money to increase the multiplier effect is crucial to understanding how business works.

The government cannot change the behavior of the business's clients, but it can make more money move through the system. Less taxes will put more money into play and allow some businesses to pay their accounts receivable faster. And so the benefit of lower taxes continues.

High taxes slow the economy. Literally. Talk to your accountant about what turning inventory means to a store. Soon you too will want the IRS to move money faster. Even better have IRS play a smaller role.

Economics of War Come to Congressional Budgeting

The Republican Party is the home in America of more astute and insightful economic analysis and the grass roots level. This is growing more and more true as radio talk show hosts become better able to articulate the information. They manage to reduce complex ideas of reducing marginal tax rates creates increased family welfare down to the bumper sticker phrase, “It’s not your money, Senator!”

This same ability to reduce complex ideas down needs to go beyond Economics 101 concepts of guns versus butter or supply and demand. If we do not, we still end up fighting bad Democratic ideas like socialized medicine, spend-now-pay-later social security, etc., on terms that only the Democrats and “all politics is local” pork barrel politicians of both parties can win. Most of this can be accomplished by applying the principles of the dismal science of economics to conflict.


Pork and Islamic Terror
Will any pork barrel politician like being called out as the equivalent of an al-Qaeda terrorist? The politician is more motivated by his single issue pork barrel project than the common good. An al-Qaeda terrorist is more interested in pushing his single issue of Islamicistic domination than the common good of the world’s citizens.

In essays on the economics of war, one professor makes economics and war as much a part of his studies as the pricing of a loaf of bread. There is a demand curve and a supply. The supply is of wealth (i.e., booty or production for war and peace, respectively) versus the demand for conflict.

He claims that his analysis applies equally well for armed conflict or terrorist attacks as for Congressional budget fights. It seems true.

Not being the economist myself, I can only refer to his graphs and analysis for why some of the following points are true. However, common sense and a little observation of human nature bears these “maxims” out.

Because the return on investment is much greater, it is more economically efficient for a small group to push for its single issue than it is for the majority to oppose it. Think about it. A town needs a bridge. They convince their Congressman to get money for the bridge. The Congressman increases his campaign contributions from the townspeople and the benefiting businesses for himself and for his PAC to finance other candidates. He increases his re-election chances by pushing for the bridge. If the bridge is not paid for out of the federal budget, the Congressman gets a lot of good press at home. But if he succeeds in getting the bridge, he might even get his name on it. Then the town will never forget who its benefactor is. (Not much different than Alexandria, Egypt can never forget that it was founded by Alexander the Great nearly 2300 years ago.) If the Congressman has a child who wants to go into politics, the young politician will be able to milk that bridge for votes for generations.

The Congressman on the other side of the country might even vote for this bridge in a town he has never heard of, if he too gets to build something – say, library named after him in his hometown. (The Congressional equivalent of the Carnegie Library – who built those libraries, by the way?)

Now let’s turn to the terrorist. He is motivated to bring down a government. Very few in the community support him. Mao Tse Tung suggested that the terrorist could easily win with a small force. All he needed to do was be highly motivated and smart. So in Mao’s world, you attacked the population that you wished to persuade. As the police and army respond, they respond by repressing the population: restrictions on movement, increased security, reduction of rights to free speech, imposition of higher taxes to pay for more security for the ruler, etc. The population begins to resent the ruler for these impositions. The population begins to fear participating in society for fear of being hurt or killed by terrorist attacks. It is easier for the citizens to stay, not to participate in the economy, and to resent the government. The support for the terrorist grows and feeds into a new cycle of violence.

Both the terrorist and the Congressman feed off of systems that reward the instigator with greater returns than would come from more traditional efforts. Each of these is a highly predictable, economically efficient action for the desired goals.


How to Resolve the Dilemma?
Just because we understand the motivations, does not mean we as average citizens need to approve of that behavior. To overcome either self-centered manipulation of the economics of war, the economist will tell you is dependent on the ethos that permeates the particular society. Why do Republicans and Democrats who dislike each other not fight personal wars through duels, fight factional (see the Federalist Papers for application) wars through armed conflict, or tear apart the Constitution through outright treason and sedition when the minority party in Congress? Simple. The ethos of America does not find such actions acceptable. In Kentucky, the governor must swear at his inauguration that he has never fought a duel. These principled positions survive because the morality of the country requires it not because the law requires it. Law only functions when morality permits it.

Why is Afghanistan war-torn? Because the ethos created by conflict, escalated by the later intervention of the Soviet Union and the U.S.’s support of the opposition, did more to support single issue warlords than it did for civil government. Why is recovery going to be difficult? Warlords still have single issues to promote – themselves. Altruistic behavior and capitalistic commerce will occur in small doses, but only after the courage of the majority to resist warlords through armed conflict becomes strong enough will the warlords disappear.


The Solution of Political Morality
The only way to stop terrorist activity and pork barrel politics is by changing the moral culture that allows it. How? The bumper sticker could say, “Only criminals have pork barrels.” We need to define a moral principle that local funding should be done by states unless many states benefit. The Interstate System benefits all states. If I want to go to Denver from Indianapolis, I am happy to have an interstate through Kansas (even wiser a turnpike, but that is for a different day). If trucks on interstates are not the epitome of interstate commerce, I don’t know interstate commerce.

We need to raise the cost of single issue politics. Only when it is almost more expensive for single issues to win than it is for the majority to oppose will single issues truly die. The politics of theft by Congressional committee needs to be called what it is – criminal. Having worked with groups of people, I know that work only gets done when fewer than two people apply themselves. Groups slow down work. Yet groups are the only way that work can be broadcast. Oh, the paradox!

Controlling lobbying won’t work. Destroying Congressional staffing won’t work. Breaking down doors to executive sessions to committees won’t work.

I am frustrated because I can clearly describe the problem, but I don’t know how to solve for the law of economics in conflict.

In War in the Shadows, the author suggests that guerilla warfare (which terrorist rely on) can only be won by the larger (probably governmental body) group if the larger group abandons the idea that it must seize and hold all territory. The war must be won by establishing fortified areas where the warriors can retreat for recuperation and re-supply among the guerillas. Then the security perimeter can be expanded through cooperative, non-repressive efforts. The population must feel that the government is responsive and protective of the population.

I suggest that this is the way that pork barrel politics at the federal level must be fought. Attorney Greg Garrison has started his own fortified position in Indiana. He is calling out the Congressmen from Indiana on pork barrel politics. Now, I admit that to date most of his examples of pork barrel spending have focused on out-of-state expenditures. For his stronghold to be successful, he must focus on the local population. He needs to identify wasteful spending in Indiana that each Congressman directly benefited from. To attack Pence, the attack must be on spending in Muncie. To attack Carson, the spending must be in Indianapolis. Only when these attacks change the moral culture for voters toward their own Congressmen will the morality truly change.

National attacks on local expenditures is even less effective than local attacks on out-of-state expenditures. Single issue politics is the equivalent of terrorism and its techniques of guerilla warfare. They must be handle the same: so says the law of economics.

Republican for Raising Taxes

As the Indiana legislature and other states' legislatures are closing in on writing their budgets for this budget cycle, we are hearing the typical question of raising or lowering taxes. As with any debate written within the past sixty years, the language of the debate has traditionally been written and dictated by liberal democrats. This has allowed the Democrats to control the emotional response to the message.

As the conservative movement has been able to find its voice after the Reagan and Gingrich revolutions in the White House and House, respectively, it is slowly learning how to choose words that better reflect the true debate.

For example, the debate over estate taxes has been using the language favored by the Democrats. Admittedly Teddy Roosevelt, as I understand it, first pushed the estate tax for the purpose of preventing the super-wealthy of the era from creating a caste system of wealth. He wanted to prevent the Rockefellers and Vanderbilts from controlling America in perpetuity by the power of wealth. He made the faulty assumption that once wealth is created in America, it would stay in the same family forever. Who could argue that huge estates should remain in place forever? How anti-American!

He looked at the history of Europe and its historical wealth and assumed that the "Robber Barons" were accomplishing the same thing by different means. The Democrats of the New Deal thinking picked up the populist notion and ran with it for nearly a century. They kept pointing out how anti-American passing estates from one generation to the next were.

Then the Republicans of the conservative movement learned to change the vocabulary. This tax was imposed when a person died. Without that triggering event, no tax was "recognized" (lawyer word for the reason for a tax being owed). So they changed the debate from the tax on the wealthy (which no one in America feels that they are) to a tax on the dead. This gave the tax a bad taste, even for Democrats.

This change of vocabulary may have the feel of George Orwell's Winston Smith in the Ministry of Truth in1984. Changing the words changes the truth, right?

Never fear changing words if they move toward the truth.

The truth is, as I have pointed out in a previous posting, the estate tax is an optional tax that even Bill Gates can avoid. The tax is imposed on the dead uninformed.

Why not call it what it is the uninformed middle class death tax? Well, the Republicans came up with the shorter version: death tax. This changed the entire debate. Now Democrats had to explain why the name "death tax" was an inaccurate description. This opened an old debate subject to previously undiscovered information. The Democrats had a hard time selling a 55% tax rate on the dead. Add to this the last 25 year push for old people to retire on the wealth of their retirement plans rather than guaranteed income streams of pensions, and everyone could be taxed at death. The American dream of wealth for all, the death tax for all.
Even Hillary had to at least support changing the death tax system.

Let's get back to my point: the current budget debates.

The current debate about tax cuts makes the Republicans look stupid. Why "lower taxes" when huge expenditures for war are foreseeable into the future?

The Democrats have made complete mud of this debate, too. Let's pull the definition of words apart and examine this further. I looked up the word "tax." It means, "A contribution for the support of a government required of persons, groups, or businesses within the domain of that government." American Heritage® Dictionary of the English Language, 4th ed. (Houghton Mifflin Co. 2000). It can also be defined as "A charge, especially a pecuniary burden which is imposed by authority." Webster's Rev'd Unabridged Dictionary (MICRA, Inc. 1998). So a tax is the payment to the government and not the calculation method.

So if we look at history a tax cut occurs when the amount of money that a taxpayer pays to the government is reduced. Where do these tax cuts occur? Since the income tax is based on the amount of income a taxpayer has received that year, a tax cut would occur when the size of the check for the taxpayer is reduced. Lower income means bad times. Bad times occured in 1970's and early 1980's. This despite high tax rates. So the Democratic ideal of high tax rates lead to low taxes. The Democrats cut taxes and increased spending (which I knowingly assert without support and will address at a later date). For more information on high tax rates and lower taxes received by the government see the works of Dr. Thomas Sowell, Professor Walter Williams, or Professor Arthur Laffler.

The Democrats have pushed the Karl Marx notion that the best means of taxing a population is by taking for the wealthy and giving to the poor. (No, this is not Robin Hood. The Robin Hood story is based on taking money from the crooked despot King John. So crooked that even his lords found his taxes outrageous and demanded the King sign Magna Carta.)

Despite my respect for Karl Marx's descriptive talents, we ahve yet to find many of his proscriptive and theoretical solutions to work well at all. So maybe we should proactively call this fallacy of cutting tax rates is the equivalent of reducing the taxes flowing to the government.

Presidents Kenney and Reagan have proven that reducing taxes increase taxes.

Let's see the Republicans call a spade a spade: President Bush should call for increased taxes -- by reducing tax rates. By pushing the notion that he is trying to reduce taxes, he is perpetuating the fallacy that tax rates are an accurate proxy for taxes generated. They are not.

Let us destroy one more "fact" of the Orwellian Ministry of Truth. Republicans must raise taxes!!!

Did Arnett Commit Treason?

Like many Americans today, I am angry. My gut reaction is that Peter Arnett, if he be a U.S. citizen, committed treason yesterday. As a lawyer, I feel uncomfortable uttering those words, not knowing how treason actions really work. So I did some research. Surprisingly, I feel even more adamant that he committed treason.

How did I come to that conclusion? Well, let' look at the law.

Constitutional Mandate
First, the U.S. Constitution, Article 4, Section 3: "Section 3 - Treason: Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

"The Congress shall have power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted."

Did not everyone in the world witness these statements? Need we have more? Did not Arnett confess to making the statements in his apologies on the "Today" show? Under Federal Rules of Evidence, such a statement against interest is admissible and not subject to exclusion under the rules for hearsay at Fed. R. Evid. 801 to 803.

Congressional Input
Second, U.S. Code article 18, section 2381: "Treason: Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States."

But we may be guilty of treason for not pointing it out 18 USC sec 2382: "Misprision of Treason: Whoever, owing allegiance to the United States and having knowledge of the commission of any treason against them, conceals and does not, as soon as may be, disclose and make known the same to the President or to some judge of the United States, or to the governor or to some judge or justice of a particular State, is guilty of misprision of treason and shall be fined under this title or imprisoned not more than seven years, or both."

Another twist is 18 USC sec. 2387: "Activities affecting armed forces generally
"(a) Whoever, with intent to interfere with, impair, or influence the loyalty, morale, or discipline of the military or naval forces of the United States:
"(1) advises, counsels, urges, or in any manner causes or attempts to cause insubordination, disloyalty, mutiny, or refusal of duty by any member of the military or naval forces of the United States; or
"(2) distributes or attempts to distribute any written or printed matter which advises, counsels, or urges insubordination, disloyalty, mutiny, or refusal of duty by any member of the military or naval forces of the United States -
"Shall be fined under this title or imprisoned not more than ten years, or both, and shall be ineligible for employment by the United States or any department or agency thereof, for the five years next following his conviction.
"(b) For the purposes of this section, the term ''military or naval forces of the United States'' includes the Army of the United States, the Navy, Air Force, Marine Corps, Coast Guard, Naval Reserve, Marine Corps Reserve, and Coast Guard Reserve of the United States; and, when any merchant vessel is commissioned in the Navy or is in the service of the Army or the Navy, includes the master, officers, and crew of such vessel."

US Supreme Court
Third, the US Supreme Court in its major case on the subject, Cramer v. U.S. Particularly, its implicit proposition that speech can be treason, even though its point was there must be more: "On the other hand, a citizen may take actions, which do aid and comfort the enemy- making a speech critical of the government or opposing its measures, profiteering, striking in defense plants or essential work, and the hundred other things which impair our cohesion and diminish our strength- but if there is no adherence to the enemy in this, if there is no intent to betray, there is no treason. " Cramer, 325 U.S. at 29. The Court's point is that there must be intent to betray over and above the speech. Speaking to the enemies' people? Calling the enemy successful?

Conclusion
We have a legal duty to prevent our government in form and action from being undermined. Now, suffice it to say I do not fear that our government will fall because a small-minded person like Arnett has spoken, but these is tragic.

Should we restrict protest? No! No! No! The professor at Columbia University has spoken his mind that we should suffer a thousand Mogadishus. This statement is far less damaging because of its location and circumstances. It was not done in manner that will knowingly help the enemy. It is a loud mouth. Have him make the same statement in front of an Iraqi audience when Iraq is the enemy then a crime is committed.

Arnett should be prosecuted. Otherwise, we all become felons, guilty of aprising treason.

An Angry Father or Not All as It Seems

Over the weekend I saw the sad story of the first Marine casualties in our war. My heart aches for them. One of the disturbing videos on CNN was of a distraught father mad at the President for, paraphrasing, "taking my son away from me." The clip had no setup other than "heeeeeere's the distraught father" type summary.

The father was Mr. Waters-Bey. I do not recall his first name -- my apologies to the gentleman.

The name ending in Bey reminded me of a pro-bono case that I worked on as a law clerk where a federal prisoner was complaining of cruel and unusual punishment violations. I couldn't remember much about the name other than the supervising lawyer told me that it is a religion common in prison. I could remember nothing else.

I decided to do some cursory research. I found a website that described the religion. According to this website the religion is related to the Moorish Science Temple of 1913 and its progeny the Nation of Islam.

I do not know much about this religion, and one website's research does not make doctoral research. Nevertheless, based on impressions alone, I wonder about the motivations and the emotional source of this rightfully distraught father's anger. Why this analysis? Simple, once again the press (especially CNN, here) puts a person on camera with no analysis of the basis for a person's statements. This failure to fully disclose readily ascertainable information concerns me.

This father is entitled to his mourning, his outrage, and his religion. The press is not entitled to a free pass when it provides no context for the press conference. The American people deserve reporters who question seemingly out of place from the expected.

Estate Taxes Good?

In the midst of war, the Washington Times ran an editorial about Bill Gates' position on estate taxes.

Since this is well within my professional expertise as an estate planning attorney (trained in multi-millionaires' planning techniques by the Esperti Peterson Institute at Michigan State University), let me make a simple point: multi-millionaires can easily pass the entire assets of their estate to their children intact. One oft-used technique is the Charitable Lead Trust linked with a charitable foundation. The millionaire or billionaire can pass his entire estate tax-free. Admittedly, he must put restrictions on the money for 18-22 years, but it works. (If you are curious about how this works, send me an email at jheck@hecklaw.com.) Most estate planners consider the estate tax an "optional tax." Good planning eliminates the tax in its entirety.

Simply put, while I do not question Bill Gates' personal altruism (since most published reports indicate his children will only be decamillionaires and not billionaires, by Bill's and Melissa's estate plan). I do question the soundness of their logic. If the estate tax can be so simply circumvented, why puts so much emphasis on giving money to the government as sound policy.

Where I do see the value of the estate tax is as a motivator. My professional experience is that most persons do not plan for a future that is more than 15-20 years away. The estate tax in its pre-reform model was an excellent motivator for the middle class and upper class to spend time thinking about the next 10 to 50 years, no matter the person's age. The value of this is that it allowed these persons to creatively provide for family members according to the family member's individual skills and problems and to seriously consider healthy doses of long-term charitable planning.

With the loss of a real threat of estate taxes for the middle class and a serious bear market, the numbers of persons considering these altruistic aspects of planning have plummeted.

I will skip further comment on this matter until the war closes. Suffice it to say, beware of the wealthy seeking more taxes; there is usually more to the story.

You gotta read this article from Canada.

Despot or Street Thug: Saddam's Criminal Trial

Last night President Bush left no doubt that we can, should, and will go to war against Saddam if Saddam does not go into immediate exile. Even this morning I hear debate that focuses on our burden to prove that Saddam has weapons of mass destruction. This is non-sensical.

Burdens of proof are legal principles for courts of law. In our hierarchical, modern thinking, we think of the results of certain actions as being on a range from frivolous, fun, benign, negligent, reckless, intentionally dangerous, destructive, to war. As we go through this range, the legal bent of common society is that any person who wishes to move from benign into more catastrophic and deadly force of war needs to have made a strong case for his action. This is patently ridiculous.

Long ago in Greece, a trilogy of dramas made the point. King Agamemnon returns from the Trojan war and is killed. His son Orestes seeks revenge on his father's killer, as is right by custom. His father's killer, though, is Orestes's mother. The Furies, gods of vengence, chase down Orestes for killing his mother. The godess Athena intervenes and appoints the world's first jury to sit in judgment of Orestes.

This story is instructive. Only within society subject to the rules of participatory justice is there a right and obligation of burdens of proof. Where there is no willing submission to these rules, why should a tyrrant have the right to claim that parties with little or no access to information should bear the burden of proof?

Despite claims of the existence of international law, there is little in the way of law that applies internationally. There are no established rules other than those dictated by the Security Council. That bears little or no resemblance to the legislative or judicial function of a parliament or court, respectively. It is an international brawl.

If Saddam were to submit to the jurisdiction of a body with a judge having the power to impose enforceable injunctions (i.e., orders to act) against Saddam, Saddam would be able to claim that the United States or other party has the burden to show that Saddam is wrong. Then the United States could seek recourse to the judge to seek permission to access specific areas or order certain documents produced. Similar to the Federal Rules of Civil Procedure 26 through 37.

Since Saddam has not submitted himself to the jurisdiction of any court, the rules of brawl apply. Let's not be deceived by socialist calls for an international body to impose order on the world. This is just a way to bring the Soviet's Comintern back to life.

Saddam is not responsive to any other person, organization, or law. He is a despot. Let's not act like he is a misbehaving street thug that can be thrown in jail.