Judges and Francis Bacon

Francis Bacon has written eleven rules on how to be a good judge. Click here for more.

The first is this: "You should draw your learning out of your books, not out of your brain."

My favorite? "That you should be truly impartial, and not so as men may see affection through fine carriage."

Not Just Guantanamo Bay

If you believed America considered "due process" an imaginary term only in Guantanamo Bay, you'd be wrong. See this story, about Ali Al-Marri. The United States held him, a legal U.S. resident, "without charges for more than five years at a Navy brig in South Carolina." (See WSJ, 3/24/09, A7). Apparently, President Obama has finally ordered a trial.

I've said it before, and I'll say it again. The rule of law isn't America's saving grace--the law always arrives last to an important event. If I'm wrong, then Mr. Al-Marri would have had a trial at some point in his five years in jail. People who place their faith in the law do not have recent history to support them.

Incredible Romantic Movie

I highly recommend the 2005 film, Sweet Land. It's not a chick flick, but a sincere, heartfelt film about love in early America. Relevant links are below:

Movie's website: http://www.sweetlandmovie.com/

Interview with director: http://www.movienet.com/sweetland.html

The world really is a small place and, as we move around it and commingle, we have the ability to recognize our similarities, to go beyond tolerance toward acceptance, to redefine communities and humanity out of new combinations of people, sounds, stories and, of course, food.

Hamiltonian Wisdom

I've always favored Jefferson over Hamilton, but this Federalist Papers excerpt is making me reconsider my anti-Hamilton stance:

http://avalon.law.yale.edu/18th_century/fed01.asp

It has been frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force...

So numerous indeed and so powerful are the causes which serve to give a false bias to the judgment, that we, upon many occasions, see wise and good men on the wrong as well as on the right side of questions of the first magnitude to society. This circumstance, if duly attended to, would furnish a lesson of moderation to those who are ever so much persuaded of their being in the right in any controversy. And a further reason for caution, in this respect, might be drawn from the reflection that we are not always sure that those who advocate the truth are influenced by purer principles than their antagonists. Ambition, avarice, personal animosity, party opposition, and many other motives not more laudable than these, are apt to operate as well upon those who support as those who oppose the right side of a question. Were there not even these inducements to moderation, nothing could be more ill-judged than that intolerant spirit which has, at all times, characterized political parties. For in politics, as in religion, it is equally absurd to aim at making proselytes by fire and sword. Heresies in either can rarely be cured by persecution...

On the other hand, it will be equally forgotten that the vigor of government is essential to the security of liberty; that, in the contemplation of a sound and well-informed judgment, their interest can never be separated; and that a dangerous ambition more often lurks behind the specious mask of zeal for the rights of the people than under the forbidden appearance of zeal for the firmness and efficiency of government. History will teach us that the former has been found a much more certain road to the introduction of despotism than the latter, and that of those men who have overturned the liberties of republics, the greatest number have begun their career by paying an obsequious court to the people; commencing demagogues, and ending tyrants.

Hamilton's ideas triumphed over Jefferson's. As a direct consequence of Hamilton's writing and influence, America received its foundation for modern governance and economic regulation. Could Hamilton envision, at the time he was writing, the kind of country we have today? Of course not. He had, at most, general ideas with no specifics. He could not have known that he was putting in place a framework that would eventually produce the modern car, iPhones, eBay, and other economic wonders. It just goes to show you that when you're doing something, even if you know it's historic, you can never know the full panoply of potential ramifications.

It is a shame that The Federalist Papers are not required reading at every American high school. Unfortunately, it was not until after I graduated law school that I bought a copy and read it. How can we be graduating so many Americans who have little idea of their own country's founding principles? If the test of an enduring empire is whether its citizens know and respect its history, America's longevity may be in question.

Thoughts on Reno, Nevada

I just got back from Reno, Nevada. Some thoughts on my short vacation:

1. Not including the more isolated Peppermill and Atlantis hotels, the best downtown Reno buffet is El Dorado, especially if you have a sweet tooth. Their dessert options were incredible. Fruit tarts, cakes, little chocolate pies, flan, more tarts, and gelato.

2. When factoring cost, the best overall Reno restaurant is Harrah's Cafe Napa. I had a wonderful steak and shrimp scampi there ($9.99) and a rib-eye steak the next day. (The Peppermill would be a close second, but it's not really on the downtown strip).

3. I discovered a new drink, the "Brandy Separator." I don't usually drink at all--I order virgin pina coladas and mineral water with lime when gambling--but when I saw this milky concoction, I had to try it. Absolutely yummy. Otherwise known as "Gorilla Milk," it's 1 1/4 parts brandy, 3/4 part Kahlúa liqueur, and 3/4 part heavy cream.

4. The first two rounds of 2009's March Madness were fantastic. At one point, two games were in OT, and then one of them went to double OT. That, my friends, is why you want to be in Nevada during March Madness. You can watch all the games on the multiple casino screens instead of relying on CBS to switch you to a particular game.

One complaint? I hated the refereeing. Some calls were atrocious. Not to take anything away from Siena, but one foul call against an Ohio State player during the last twenty seconds might have cost Ohio State the game. (The player never touched his man.)

Best coached team? Utah State. Every single play was perfectly executed. If their two best players hadn't fouled out at the last minute, they would have won. (See comment about refereeing above.)

Softest team? Wake Forest, i.e. this year's bracket buster. Wake Forest had no defense whatsoever. They could shoot well, but couldn't guard anyone. Wake hasn't produced a Final Four team in several decades, despite counting Tim Duncan and Chris Paul as alumni.

Biggest heart? University of Northern Iowa. After barely making it to the dance (they had to mount a miraculous comeback in an OT conference game to get an invite), they pushed Purdue to the limit. If some calls had gone UNI's way, we'd be looking at a potential Cinderella.

UNI also has the player with the coolest name: Ali Farokhmanesh.

MVP so far? UNC's Ty Lawson. Without him, UNC would be at home right now, watching the games on television. At one point, he was the only UNC player who scored in a four minute time span, which stopped the other team's run.

5. Best Reno sportsbook? Club Cal Neva (not to be confused with Tahoe's CalNeva). Club Cal Neva, during March Madness, had everything a guy and his buddies would want. Two girls in skimpy outfits offering jello shots; huge nachos for five bucks; multiple pitchers of beer everywhere; three rooms of television screens and plenty of seating; and drawings for sports memorabilia. If it wasn't March Madness, though, I'd probably go to Harrah's. They have a classy joint, and it shows.

America's Defense Spending

Military-industrial complex, anyone? President Eisenhower is rolling in his grave.

Source: The Economist

Hat tip to http://nahnopenotquite.com/

No Posts from March 20 to March 22, 2009

I will be in Reno, NV enjoying March Madness. What's my Final Four, you ask?

Bracket 1: Missouri, Pitt, Michigan State, and Illinois.

Bracket 2: Villanova, North Carolina, UConn, and Louisville.

I have a good feeling about Missouri, which, given my horrible track record, means they will probably get bounced in the first round. I spent years choosing Kansas to go all the way, and then the one year I didn't pick them, they got the crown. Sometimes, life's funny like that.

Anyway, I will return to California on March 22, 2009 and will begin posting again.

Update on April 4, 2009: All the teams in my brackets above, except for Illinois, made it to the Elite Eight.

Paul Wolsfeld's Website

I am leaving for Reno, NV to watch March Madness in the comfort of a hotel room and/or sports book. I will be staying at Circus Circus and will return on March 22, 2009. Before I go, I wanted to introduce readers to Paul Wolsfeld. He has an interesting website, Corporate Trivia. If you click on the "Introduction" tab, you'll get some interesting facts, like these:

The headquarters of Federal Express (Memphis, TN) was an unmarked building near the airport.

No outside signs let you know you've found the headquarters of Warren Buffet's Berkshire Hathaway in downtown Omaha, Nebraska.

Most CEO's don't have a computer in their office. "Seven out of ten CEO's DO NOT have computers."

Enjoy, and have fun cheering for your favorite college basketball team!

Immigrants May Save Housing

Yesterday's WSJ had an excellent article from Richard Lefrak and A. Gary Shilling about America's housing problem. If you assume the problem is collapsing housing prices, then the solution--offering accelerated permanent residency in exchange for foreign housing investment--makes sense. We already sell stocks, preferred shares, leases, and government bonds to foreign countries to keep our markets liquid. Lefrak and Shilling's proposed program just adds an individual-to-individual option to increase liquidity.

Public Pensions Bills to Surge, Taxpayers on the Hook

The WSJ's Craig Karmin has an interesting article on pensions ("Pension Bills to Surge"):

http://online.wsj.com/article/SB123716064273635495.html

Everyone acknowledges we have to hire good teachers, police officers, and firefighters; however, to prevent the public sector unions from taking more taxpayer funds than necessary, taxpayers need to be ever-vigilant. After all, that's our money and our children's money they're investing and taking.

Public pensions are an especially difficult issue to resolve, because they represent a long-term taxpayer liability. Thus, taxes and services do not need to be immediately raised or cut even if a pension's actuarial projections are incorrect. This absence of a short-term trigger makes it harder to alert taxpayers to the slowly ticking time bomb of pension liabilities.

California's problems are acute because even if pension assets decline substantially, payouts do not change. For example: if a California public pension loses 20% of its assets in one year, retirees still get paid the same amount, even though the pension has to dip into its assets to make the payouts. Why is this a problem? Dipping into a pension's assets usually means the pension is underfunded and will need higher-than-normal returns or more taxes to keep paying retirees. So either taxpayers are on the hook for ever-expanding retiree benefits, GM-style, or pension funds have to take risky investing strategies to bridge the gap between payouts and assets. No incentive exists for prudence. It doesn't have to be this way.

Wisconsin has a prudent policy "of adjusting the amount of benefits paid based on the pension fund's performance." Although this policy causes to retirees receive a benefit reduction, it also creates incentives for conservative investments and fewer tax hikes. If a pension doesn't do well, at least retirees will complain and hopefully cause some changes to be made to sustain the pension without a call for higher taxes (yes, this is partly wishful thinking, but at least someone becomes accountable more immediately). The WSJ also points out that some state employees could be switched to 401k plans, which is something I've advocated in the past. (See here.)

No matter what the solution is to the pension liability problem, action needs to be taken. More of the same isn't acceptable.

Bonus: Shelby Steele writes a very interesting article on Republicans and race:

http://online.wsj.com/article/SB123716282469235861.html

Financial Transparency

Daniel Roth had an excellent piece in Wired ("Road Map for Financial Recovery") promoting financial transparency:

http://www.wired.com/techbiz/it/magazine/17-03/wp_reboot

But the volume of data obscures more than it reveals; financial reporting has become so transparent as to be invisible. Answering what should be simple questions—how secure is my cash account? How much of my bank's capital is tied up in risky debt obligations?—often seems to require a legal degree, as well as countless hours to dig through thousands of pages of documents. Undoubtedly, the warning signs of our current crisis—and the next one!—lie somewhere in all those filings, but good luck finding them...

That's why it's not enough to simply give the SEC—or any of its sister regulators—more authority; we need to rethink our entire philosophy of regulation. Instead of assigning oversight responsibility to a finite group of bureaucrats, we should enable every investor to act as a citizen-regulator. We should tap into the massive parallel processing power of people around the world by giving everyone the tools to track, analyze, and publicize financial machinations. The result would be a wave of decentralized innovation that can keep pace with Wall Street and allow the market to regulate itself—naturally punishing companies and investments that don't measure up—more efficiently than the regulators ever could.

Transparency and citizen-advocacy? Sounds positively American.

Universal Healthcare--A Different Perspective

Zeke Emanuel, Chair, Dept of Bioethics, NIJ Clinical Center, came up with a plausible solution to the health care crisis in this month's Commonwealth Club Magazine (page 43, March 2009). I don't have a link to share, but the title of the article is, "Scrapping the System." Mr. Emanuel has a book, Healthcare, Guaranteed.

Bonus: Of course, there's a blog: http://www.healthcareguaranteed.org/blog.cfm

Love in the Time of Automobiles

This NYT piece, about one man's love for his wife, ought to be made into a film:

http://www.nytimes.com/2009/03/08/fashion/08love.html

This incredibly capable woman who loved to hike mountains, ride waves, and run marathons, who had cleared our sizable backyard of eight-foot-high brambles and helped me move all our furniture into three houses, suddenly couldn’t do any of those things, ever again.

Not long after getting home from the hospital, when we were having dinner by candlelight at our kitchen table, she burst into tears. “I don’t know if I can do this for the rest of my life,” she said.

All I could say was, “We’ll do it together.”

Kudos to Mr. Layng Martine Jr. for being a good man.

Stewart Takes on Cramer, Part 3

The Daily Show With Jon StewartM - Th 11p / 10c

Jim Cramer Unedited Interview Pt. 3

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Years from now, if anyone wants to see the aftermath of America's financial excesses, they should review these three videos (March 12, 2009, Daily Show).

The most salient part for me was this question, asked facetiously: "A CEO lied to you? Shocking." How did we get to a world where it seems like the last remaining honest CEO is Warren Buffett?

Cramer also makes a great point when he asks, "Where are the indictments for these people?" I remember many banking CEOs going on CNBC proclaiming the safety and financial position of their company. Stewart is right to be angry when he says that CNBC assisted Wall Street in putting the wool over Main Street's eyes. Indeed, where are the indictments?

Stewart Takes on Cramer, Part 2

The Daily Show With Jon StewartM - Th 11p / 10c

Jim Cramer Unedited Interview Pt. 2

Daily Show Full Episodes
Important Things w/ Demetri Martin

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Jim Cramer

Stewart takes on Cramer, Part 1

The Daily Show With Jon StewartM - Th 11p / 10c

Jim Cramer Unedited Interview Pt. 1

Daily Show Full Episodes
Important Things w/ Demetri Martin

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Jim Cramer

Calling All Bush II Supporters

To those of you who supported George W. Bush, WSJ letter-writer Mr. Concini has some words for you:

During the eight years of his administration the unemployment rate went from 4.2% to 7.2%; consumer confidence dropped to an all-time low; a budget surplus of $200 billion became a deficit of over $1 trillion; more than a million families fell into poverty; six million more people lost health insurance; gains of our economic growth went almost entirely to the rich, while middle- and low-income families lost ground; the unnecessary Iraq war caused huge suffering and detracted from the more serious threat in Afghanistan; and perhaps less quantifiably, we suffered a world-wide decline of respect, prestige and power.

Maybe not the worst, but certainly a contender.

Dino J. De Concini
Washington

Ouch. From what I remember, George Bush the First was a fairly decent man. Just goes to show you: monarchies and royal families, no matter their various permutations, don't work.

Gov Breaks Down Bailout Money

In case you're wondering where the bailout monies are going, the government has a breakdown here:

http://www.recovery.gov/?q=node/88

It's not a perfect breakdown--the government puts $8 billion into the category of "Other." As Krugman and other economists have pointed out, the stimulus may not be enough to create jobs, because around 20% of the monies are going to prevent government job cuts/layoffs. I would like to see a breakdown of which government employees/entities are receiving the $144 billion. That area is ripe for abuse and corruption, because the government is doling out money to itself.

The Peterson Foundation's analysis is below:

http://www.pgpf.org/newsroom/press/2010/

Disney's Annual Shareholder Meeting (2009)

The Walt Disney Company (DIS) had its annual shareholder meeting in Oakland at the Paramount Theater. Refreshments were minimal--tea, no-name coffee, and O.J. were available, but no pastries or other food items. Mickey and Pluto roamed the halls and signed autographs upon request. More Disney characters appeared after the meeting was over. Security was tight--rent-a-cop guards were everywhere.

The Chairman of the Board, John Pepper, started the meeting. He mentioned Disney's very-timely Pixar acquisition and Disney's #1 ranking (among entertainment companies) in Fortune magazine's most admired companies. After a short speech, he introduced the Board of Directors. Steve Jobs, Disney's largest individual shareholder and a director, was not present.

Next, Disney treated shareholders to an upbeat video presentation that highlighted its diverse product lines. Most people associate Disney with classic films like Cinderella, as well as theme parks and Mickey Mouse, but Disney is really a media company. It derives most of its net revenue from advertising. As a result, Disney has its hands in music (Jonas Brothers), cable (Disney Channel), broadcast (ABC), sports (ESPN), and almost every form of media imaginable. Showing shareholders a short video of Disney's products reminded shareholders that their company was a force to be reckoned with.

After the short video presentation, CEO Robert Iger introduced, for the first time, a trailer for the film, Up, a comedy about a 78-year-old curmudgeon and an 8-year-old boy scout who travel together on an unexpected adventure. Disney then presented an unfinished scene from an upcoming film, The Princess and the Frog. Both sneak previews received vigorous rounds of applause from the audience and can be found on the Internet/Youtube.

After the video presentations, CEO Iger emphasized Disney's commitment to social responsibility. He mentioned Disney's focus on environmental conservation; reducing the influence of cigarettes in the media; and accommodating disabled guests (note: a sign language interpreter was present at the meeting). More information can be found at this website.

The much-hyped "Are You 23?" turned out to be an official online community for Disney fans. See this this link for more information. The "23" refers to the date Disney was founded, i.e., 1923. After all the build-up, I was a little disappointed. I expected more than another vehicle for Disney to stay in touch with their fans.

CEO Iger then turned the meeting over to Chairman Pepper, who introduced and countered various shareholder proposals. All shareholder proposals opposed by Disney failed to pass. There was some controversy relating to the non-DVD-release and non-distribution of the film, The Path to 9/11. For more information, readers can check out the film, Blocking the Path to 9/11: The Anatomy of Smear. One audience member, who self-identified himself as "independent," made comments that supported Disney's refusal to distribute The Path to 9/11. His comments seemed to be well-researched but rehearsed, almost to the point where he seemed like a Disney plant.

Several shareholders lambasted CEO Iger's compensation package. One shareholder was unhappy with the Board's oversight on executive compensation, saying that after Enron, Lehman Brothers, AIG, and Bear Stearns, "The days of 'Just trust us' are over."

AFSCME, an association of government employees, asked Disney to eliminate "golden coffins," i.e., where guaranteed benefits are triggered by an executive's death. AFME's representative pointed out the obvious: "golden coffin" compensation arrangements lack a "pay for performance" connection. There was some irony in having an organization of public employees demand that the private sector rein in unreasonable benefits. After all, public employee pensions are a major source of concern because of incorrect or unreasonable actuarial projections. More on this issue here.

After the shareholder proposals were discussed and voted upon, Disney moved on to the Q&A session. No question really stood out except for one shareholder mentioning that Disney ought to protect itself in case Steve Jobs was unable to vote his numerous shares in the future. Various shareholders also asked Disney to continue its direct direct stock purchase plan to facilitate gifts to their grandchildren.

After the meeting, both CEO Iger and Chairman Pepper spoke with shareholders who did not have a chance to ask questions publicly. This willingness to talk to all shareholders is a welcome change from the norm. Generally speaking, after most shareholder meetings, directors and executives flee outside, flanked by investor relations personnel. This practice is disturbing, because small shareholders can only meet corporate executives at annual shareholder meetings, and companies know this. Thus, a company's willingness to communicate with small shareholders at the annual shareholder meeting is a small but important test of its culture and humility. One day a year is not much to ask from corporate boards and executives. Disney seemed to understand this basic idea. Kudos to Chairman Pepper for setting the tone.

After the meeting, I shook Chairman Pepper's hand and was very impressed with the way he ran the meeting. He personifies confidence, tact, and professionalism. CEO Iger also answered all questions competently and seems to have a firm grasp of the company's business. I overheard various shareholders saying privately that CEO Iger seemed more uptight than Chairman Pepper. After the meeting, shareholders were given a gold-colored D23 pin to commemorate the official launch of Disney's online community.

With its diverse line of businesses, Disney appears poised to rebound once the economy improves. I wish the company would try harder to appeal to adults, especially men, in their 20's and 30's. Outside of ESPN, Disney seems to be ignoring the adult male consumer. For example, it did not get the "March Madness" media contract and seems to be focusing exclusively on children, parents, grandparents, and teenage girls. That's an impressive customer base, but it seems strange to have a major media company ignore younger adults, who are a large segment of the national and international population.

Disclosure: I own an insignificant number of shares in Disney (DIS).

Update on March 12, 2009: Check out this story on the March Madness contract. Apparently, Disney might be able to bid on the tournament rights after next year.

Nationalization Satire

Looks like The Onion has some competition:

http://www.newsmutiny.com/pages/Communist_Reeducation.html

Gotta love the made-up Marx quote. I'm surprised more people didn't pick up on the Caufield reference.

McCain's Daughter's Hilarious Dating Life

I didn't vote for McCain, but you have to admire a dad who produces a daughter with this much spunky intelligence:

http://www.thedailybeast.com/blogs-and-stories/2009-03-02/looking-for-mr-far-right

Of course, she has a blog:

http://mccainblogette.com/

Mark Cuban is Right about Madoff's Investors

As usual, Mark Cuban makes a fantastic point--this time, about Bernie Madoff and his investors:

http://blogmaverick.com/2009/02/21/was-madoff-a-better-investment-than-your-mutual-fund/

Basically, compared to the average investor, the Madoff investor might end up doing better. In addition, Madoff's investors will be getting tax deductions because of their portfolio "losses." Any way you dice it, Madoff's investors got about the same as the average investor over the last ten years. Yet, no one is trying to bail out the average stock market investor.

I said essentially the same thing here, but Cuban has more stats to support his view.

Both Parties Love Big Government

Yet another reason America's two party system doesn't work:

http://news.yahoo.com/s/mcclatchy/20090305/pl_mcclatchy/3182084

Exactly what I said before here:

In fact, Democrats like Reich and Krugman are stealing a page from the GOP's playbook. In the old days, Republicans would spend trillions of dollars on wasteful defense projects and then scapegoat poor single mothers on welfare. Now, Democrats are demonizing bankers and Wall Street to divert the public's focus from their own act of generational theft (America's future generations will be paying for the recent stimulus package). So while Republicans ran up deficits to increase the military, Democrats are running up deficits to send taxpayer money to their core constituents--education, local and state governments, and unionized interests. In the end, government gets bigger under either administration--it's just a matter of where the dollars go.

Religious Biases Coming Back?

Brad Greenberg writes a great article on racism and religious bias:

http://www.csmonitor.com/2009/0227/p09s01-coop.html

Though some Jewish money managers have proved to be scoundrels at best, like Shylock, it is not because they are Jewish – just as Christianity did not inspire Ken Lay to cheat Enron's shareholders. Indeed, Jews may be the easy historical target, but scapegoating misses the moral of our own failures. The real responsibility lies with all of us.

More from Mr. Greenberg can be found here.

Also, from the NYT, here are some interesting survey results about American Muslims:

http://www.nytimes.com/2009/03/02/us/02muslims.html

One excerpt, showing the diversity within Islam:

But American Muslims are not one homogeneous group, the study makes clear. Asian-American Muslims (from countries like India and Pakistan) have more income and education and are more likely to be thriving than other American Muslims. In fact, their quality of life indicators are higher than for most other Americans, except for American Jews...

American Muslims are generally very religious, saying that religion is an important part of their daily lives (80 percent), more than any other group except Mormons (85 percent). The figure for Americans in general is 65 percent.

By political ideology, Muslims were spread across the spectrum from liberal to conservative, with about 4 in 10 saying they were moderates. By party identification, Muslims resembled Jews more than any other religious group, with small minorities registered as Republicans, roughly half Democrats and about a third independents.

The poll shows that American Muslims tend to be diverse, highly educated, religious, and Democratic.

Jon Stewart is a Genius

The Daily Show With Jon StewartM - Th 11p / 10c

CNBC Gives Financial Advice

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The 4th Amendment and the Exclusionary Rule

Philip Kushner's letter on the 4th Amendment is one of the best legal letters I've seen--thanks in advance to the WSJ:

Paul H. Rubin complains that the exclusionary rule "hinders" law enforcement in detecting and prosecuting suspected crimes ("The Exclusionary Rule's Hidden Costs," op-ed, Feb. 28). He is probably right. The Bill of Rights contains many such provisions that restrict government's ability to detect and punish crime, including the right to be secure against unreasonable searches and seizures, the right to be arrested only upon probable cause, the bar against double jeopardy, the right to counsel, the right against self-incrimination, and the right to due process of law. Evidently, the Founding Fathers believed that there is a higher value than efficient law enforcement.

As for Prof. Rubin's claim that the exclusionary rule "encourages criminals to increase their illegal activity," that is far-fetched. Exclusion of evidence is extremely rare; exclusion of evidence that prevents prosecution and conviction is even rarer. Who engages in criminal conduct based on the assumption that the exclusionary rule will prevent their prosecution? Few citizens, including criminals, can predict when evidence will be suppressed. After the Supreme Court's recent decision in Herring v. U.S., which instructs lower court judges to engage in a kind of cost-benefit analysis in deciding whether to exclude evidence, no judge can say with confidence when evidence will be excluded either.

We have constitutional rights, many of which protect us from the government, also called law enforcement. Either we have remedies for violations of these rights or we do not. A right without a remedy is worthless.

Philip S. Kushner
Cleveland

Mr. Kushner, I have just one question: when is President Obama going to appoint you as a federal judge?

Interactive Unemployment Chart (2009)

The NYT published this interactive unemployment chart, showing rates of unemployment nationwide:

http://www.nytimes.com/interactive/2009/03/03/us/20090303_LEONHARDT.html

The Steve Nash Paper

I love basketball. As an attorney, I handle discrimination claims. What do these two things have in common? Well, some researchers just answered that question:

Using data from the National Basketball Association (NBA), we examine whether patterns of workplace cooperation occur disproportionately among workers of the same race. We find that, holding constant the composition of teammates on the floor, basketball players are no more likely to complete an assist to a player of the same race than a player of a different race. Our confidence interval allows us to reject even small amounts of same-race bias in passing patterns. Our findings suggest that high levels of interracial cooperation can occur in a setting where workers are operating in a highly visible setting with strong incentives to behave efficiently.

http://www.nber.org/papers/w14749

In other words, it's the Larry Bird/John Stockton/Steve Nash paper. But was there enough of a sample size to create credible results? Other than Steve Nash, Kevin Love, Kyle Korver, and the Gasol brothers, who else would they have covered? Surprisingly, The Arsenalist--a site named after the popular soccer team--answers my question (click on "The Arsenalist"). I can't believe I left out AK-47.

Speaking of interracial cooperation, here is a post featuring a must-see link--it leads to a video featuring "twins" Steve Nash and Baron Davis. Enjoy.

Credit goes to Marginal Revolution for the NBER paper link.

A Smart Counterargument to Libertarians

The Green Bag, a legal journal, just published a fantastic Almanac and Reader (2008). Law students and lawyers should read the excerpt, "Making Your Case--The Art of Persuading Judges," by Justice Antonin Scalia and Bryan Garner. Although I majored in English and took legal writing courses in law school, Scalia's excerpt is a must-read for anyone who wants to write effectively. 

The entire book can be found here. The Almanac has other wonderful articles, including one by J. Harvie Wilkinson III, "Toward One America--A Vision in Law." [page 296] Although I am inclined towards libertarianism, Wilkinson made me see why others are against the view that individual rights and self-interest reign supreme: 

Let's restore a constitutional respect for community. It is futile to expect a healthy nation in the absence of a health sense of community. Community instills within us the sense that we live for something larger and more meaningful than just ourselves... Communities are built around shared purposes and values, one of which is surely a respect and appreciation for individual rights. But there must likewise be the sense that individuals contribute to, as well as take from, this larger whole of which we as single persons are but parts... 

It must still be asked whether the notion of free-floating, i.e. non-textual, constitutional rights of personal autonomy has not helped to deprive us of a sense of connectedness that is indispensable to the formation of a collective identity. There is a limit to which individual intimacies should be at the sufferance of majorities, but there are likewise limits to the extent that democratic majorities in a state or nation can be deprived of the communal right to promote cherished values. To enshrine a sanctity of self in our founding charter without textual or historical warrant may be just as pernicious as the attempt to enshrine discrimination against those whose personal choices may for good and legitimate reason fail to conform to the majority's own... 

When we next drive through the countryside or take a moment's pause, we might reflect on what we get from living in society. We did not build our own home; make our own car or clothes; or invent the computers, phones, lights, or appliances we not take so much for granted. Left alone, we could not enjoy a concert, educate our children, put out a fire, raise capital, or take a trip. We would, in short, be miserable and helpless. [Green Bag Almanac and Reader, 2008, at 303-304] 

Wilkinson makes some good points and ultimately claims the middle ground. Continuing on the topic of good writing, he demonstrates the most effective writing style--moving your audience to a reasonable middle ground. However, I still disagree with the idea that communal rights should trump individual rights. The foundation of freedom is built upon two principles: 1) limitation of government power against its own citizens/residents; and 2) respect for the minority. Establishing a community sounds fine in theory, but when push comes to shove, the minority view is usually drowned out, and the government may run roughshod over their rights. Yet, that's precisely when the law and the courts should enter--at the inconvenient time when the majority, already backed by their elected representatives, are attempting to limit the individual's or the minority's freedom. 

The law is designed for inconvenient times. When it's heart-wrenching and difficult, that's when the court's pen should be unsheathed to calm the masses and to protect the individual. When the Jehovah's Witnesses are being persecuted and beaten in the schools for not taking the oath of allegiance, that's when the Court should intervene. When a political party is castigating a minority group for a nation's troubles, that's when a strong judge must use the law and remind citizens to let others alone. When the government and the majority see outside threats and want to use torture, that's when the courts should immediately remember why they exist--to use the consistent, steadying rule of law to prevent individual oppression. (By the way, federal judge Jay Bybee and UC Berkeley Professor John Woo encouraged the Bush II administration to define torture as "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." [p. 545] I'll take my individual rights now, please--I don't want any part of that community.) 

Viewing his ideas in this light, Wilkinson sounds more like he's arguing for fascism than freedom when he talks about courts respecting the community. In times of prosperity, I would agree with him; however, it's when stress and conflict enter the picture that the rights of the individual are too often ignored in the interests of community and safety. Sadly, in almost every major conflict between community and the individual, courts have initially sided with the majority at the expense of the individual. See segregation (Plessy v. Ferguson); refusing to take the pledge of allegiance (Minersville School District v. Gobitis); Guantanamo Bay (it took seven(!) years for a court to finally reject this executive order); Chinese Exclusion Act (1882); and free speech rights (Dennis v. United States). In tough times, I wouldn't put my faith in the community--not with that historical record. 

Speaking of the middle ground, Judge Henry Friendly apparently embodied it. He was said to have the "gift of moderation," the "silken string running through the pearl-chain of all virtues." [Id. at 379, Michael Boudin, "Judge Henry Friendly and the Mirror of Constitutional Law."] As an attorney, Judge Friendly seems like my kind of judge--someone who personifies moderation. We have a local judge who embodies this moderation principle, too. I have never seen him lose his temper. Even when he has gotten irritated with my inexperience, his irritation has been swift and has not prevented him from briefly explaining what I am doing wrong. I don't like to name names when it comes to judges, but Santa Clara County is lucky to have a judge like him.