A French Revolution in Iraq?

A French Revolution in Iraq?

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

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

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

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

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

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

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

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

As the French evolve, may be they change.

Senate GOP Angles for Federal Marriage Amendment

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Arnold is IN; Conservatives Should Welcome Him

Arnold is IN; Conservatives Should Welcome Him

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

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

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

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

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

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

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

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

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

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

Quantifying Qualities of Bureaucracy and of Entreprenial Effort

Quantifying Qualities of Bureaucracy and of Entreprenial Effort

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Justice Thomas Hits a Home Run!

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

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

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

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

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

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

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

Concerns about "Gay Marriage"

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

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

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

Life-Long Appointments vs. Tenure

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

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

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

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

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

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

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

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

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

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

Reforming the Concept of Judicial Reform

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Reform of Government by addressing Conflicts of Interest

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

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

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

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

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

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

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

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

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

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