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.
Saturday, June 28, 2003
Monday, June 23, 2003
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!!!
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!!!
Sunday, June 22, 2003
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?
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?
Thursday, June 05, 2003
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?
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?
Tuesday, June 03, 2003
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.
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.
Wednesday, May 28, 2003
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.
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.
Friday, May 23, 2003
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.
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.
Monday, May 19, 2003
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.
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.
Thursday, April 24, 2003
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.
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.
Sunday, April 06, 2003
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!!!
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!!!
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