Sunday, February 28, 2010

Miss Beverly Hills USA Ain't

Lauran Ashley, Miss Beverly Hills, is not from the 90210, 90211, or 90212 zip codes. She’s no more from Beverly Hills than Eddie Murphy was a Beverly Hills cop. For all we know, Ashley has never set foot on Rodeo Drive. She’s resides in plebian Pasadena.

No one would care, much less notice, except that she’s following in the footsteps of Carrie Prejean in expressing her Biblical views about gay marriage.

The Beverly Hills political establishment is shocked and chagrined that she will wear a sash stating “Miss Beverly Hills” at the Miss California USA Pageant.

Of course Lauren’s not from Beverly Hills. The population of 35,000 is roughly estimated to be 40% Persian American, and she is clearly not Iranian. A large number of residents live in rent controlled apartments (Check out “The Slums of Beverly Hills”).

Unfortunately for Beverly Hills, it has not copyrighted or trademarked its name. Since it doesn’t sponsor a pageant of its own, Lauren Ashley is privileged by the Miss USA rules to choose a city of her own.

Beverly Hills should choose an IP attorney of its own. For example, the University of Michigan has trademarked its symbolic Block M.

Beverly Hills should be celebrating Lauren, not for her views, but because she’s a consummate social climber. The 90210 zip code is full of Beverly Hills wanabes. Much of it lies outside the Beverly Hills boundaries. The 90210 residents pay a premium to get a Beverly Hills Post Office address. They may claim Beverly Hills to outsiders, but their services come from Los Angeles, and that’s where their taxes go.

Beverly Hills’ own record is not spotless. The city has outlawed oil wells everywhere within its boundaries except on the campus of Beverly Hills High School. I realize the school district and city won a lawsuit, but a fair reading of Joy Horowitz’s “Parts Per Millions: The Poisoning of Beverly Hills High School” (2007) leaves you wondering. BHHS has many distinguished alumni, but among these are Jack Abramoff, H.R. Haldeman, and the Melendez Brothers.

Why do we even care what Lauren Ashley’s thoughts are? We view these competitions by their historical name,” beauty pageants,” even if the Miss America Pageant now claims to be a talent competition. We should no more care about their political views than those of centerfold models.

We watch them for entertainment, as with a number of classic T & A shows, such as Baywatch and Charlie’s Angels. Hardly anyone watches the political talk shows on Sunday. Donald Trump doesn’t own the Miss Universe Pageant for its intellectual qualities. The original financing of Miss America and Miss Universe was by a swim suit company.

What we see is not always what we get anyway in these competitions. Anorexia and other eating disturbances, hair dye, breast enhancements (cf. Carrie Prejean) and other plastic surgery, hair spray, wd-40 go into the finished product.

Debra Maffett, Miss California/Miss America 1983, really wasn’t a Californian. She moved from Texas because the beauty pageants were too competitive “Deep in the Heart of Texas. “

Nor is virtue necessarily a prerequisite, although Vanessa Williams had to give up her Miss America 1984 Crown because of salacious photos that appeared in Penthouse.

Ignore Lauren Ashley; she’s had her 15 minutes of fame and will not be winning the Miss California Pageant.

Friday, February 26, 2010

The Political Stupidity of the Obama Health Reform Acts

Question: Why is the 2,000 page Senate Health Reform Bill politically stupid?

Incorrect Answers
1. It’s an e-coli case of sausage making
2. Blue Dog Democrats will bleed red in November
3. George who?
4. Jimmy Carter is looking better and better
5. The Democrats may do worse in this midterm election than in Clinton’s
6. Nancy Pelosi and Harry Reid are abysmal public faces of the Democratic Party
7. It daily reminds Americans of what they dislike about government
8. It sucks the oxygen out of the air of all the other Obama political initiatives
9. Doctors know best
10. Take 2 aspirin and see your Senator in the morning
11. Chicago rules don’t work well in America
12. Reconciliation usually doesn’t work in broken marriages
13. It’s generating too much carbon dioxide in D.C.
14. The pro-life/pro-choice battles are renewed
15. Win one for the Teddy
16. It breeds cynicism
17. It's simply socialism by another name
18. The elites always believe they know what's best for Americans
19. Reform doesn't work with convicts
20. Raising taxes during a recession/depression is a economic loser
21. Congress couldn't even run its cafeteria
22. The scores of tax increases will go into the general fund and not lockboxes
23. “It’s the economy, stupid”

Correct Answer

Both FDR with Social Security and LBJ with the Great Society front loaded the benefits and backended the taxes, which we are now paying. The Obama proposals front load the taxes and postpone the benefits until after the 2012 elections.

Taxation without benefits is a novel, indeed revolutionary, political approach. Medicine should relieve pain, not aggravate it. Three years of pain followed by the “cure,” will not survive the three years.

Wednesday, February 24, 2010

Fran Lee, R.I.P.

We take civilization for granted: hot and cold running water, electricity, food and drink, roads and streets, communications, education, art and culture, literature, music, recreation, public health, public safety, waste disposal, even the Olympics.
The closest most of us in our comfortable lives get to non civilization is to look at the pictures coming out of Haiti, or Somalia, or the like. Even our barrios and ghettos partake of civilization.

Yes, we take civilization for granted. We do not even think of those who made it possible. We may drive on streets named for them, or fly into airports named after them, but we hardly ever ask “who was that man or woman?”

Millions over millennia have brought us civilization, ranging from the famous to the unknown. For every William Mulholland or Robert Moses, hundreds of thousands of engineers, contractors, sandhogs, teamsters, carpenters, steelworkers toiled in anonymity to design, construct, operate and maintain the infrastructure of America.

For every John Muir, thousands of rangers and tens of thousands of volunteers implement the dreams.

For every Bill Gates or Steve Jobs, thousands design the actual product.

Planning commissions, zoning boards, building inspectors, public authorities play a role.

And then there are the Frances Lederman Weiss’, generally unknown to the public, but one of the greatest contributors to 20th Century urban civilization. Fran Lee died 11 days ago at age 99 in Jerusalem.

She had been an actress, a consumer advocate, a TV and radio personality, but mostly in the New York area. Most of us never heard of her; maybe Bess Myerson, because she had been a Miss America, but not Fran Lee.

We should be naming streets, and intersections, and neighborhoods, and animal parks for Fran Lee. City life has its advantages, but also its hassles. We tolerate them as the cost of living in the city.

All Fran Lee did was to lead the public efforts that led to adoption of New York City’s Pooper Scooper Ordinance.

Just think how much cleaner the Big Apple is, and all the other cities that have followed the City’s lead.

Fran Lee civilized the animal side of the city.

Tuesday, February 23, 2010

If Only the Olympic Luge Were in the United States

If only the Olympic luge track were in Vancouver, Washington and not Vancouver, Canada. A deluge of lawyers would have descended upon the luge.

Nodar Kumaritashvili’s estate would have already filed suit, Nodar’s relatives for wrongful death, and bystanders for emotional distress by watching the tragedy live, on the internet, or on the endless TV rebroadcasts. They will be consoling themselves with lawyers filing class action suits. Gloria Allred would be representing the champion woman luger who crashed the previous day. Congress will be scheduling hearings to do whatever Congress does in such hearings.

Since Canada, and the rest of the world, including all other countries with the English common law, do not have the same torts system we do, life will go on in Vancouver, except of course for Nodar, who has been laid to rest in Georgia, a martyr for the luge.

Georgia, the birthplace of Stalin, is upset at Canada, but any declaration of war would be futile in the absence of a navy or air force.

Lawyers though; let’s unleash the lawyers to wage wars of writs, interrogatories, subpoenas, pleas and motions, orders, appeals, and engage in discovery battles. Joint and several liability - that’s where the gold is at. Sue‘em all. Pile on the punitives.

Our personal injury tort system has become one of victims compensation and of a lottery system. When in doubt, cases should go to the jury to decide however it decides. That’s the lottery.

We were in Vancouver in 1986 for the World’s Fair. We found ourselves on Granville Island at an area known as “For kids only.” We ate lunch on a patio next to a water park. This Canadian water park was unlike any in the United States. Instead of dancing fountains, wave pools, and long slides, it was a “hilly” cemented plot fill of fire hydrants. Kids would hook hoses up to the hydrants and blast away.

Then the fun really began. A supervisor removed the hoses and capped the hydrants. As the water drained from the park, skate boarders roared on down. Just for a moment, think like a plaintiff’s lawyer.

Kids on skate boards are roaring down a wet hill, giant slalom style, dodging fire hydrants. If injuries are foreseeable on skate parks in this country (Check out the waiver forms for Van’s Skate Park at the Block in Orange) then how highly foreseeable are injuries in Vancouver? Would any insurer provide liability insurance to such a park in the United States?

Canada proves once again that it is not the United States.

The motto of the International Olympic Committee is “Swifter, higher, stronger.”

Speed kills. Lawyers sue.

Saturday, February 20, 2010

Dive Bombing the IRS in a Piper PA-28

Joseph Stack showed a strange way of leading a crusade against the IRS. He burnt down his house, posted a manifesto, and then kamikazied a 7 story building containing IRS offices.

An incredibly futile act of a mentally deranged (forget the euphemism “emotionally troubled”) nut job. Americans have no great love for the Infernal Revenue Service, but they will not follow a lunatic, a dead lunatic at that, in a futile Jihad against the IRS.

Many Americans were outraged by Ruby Ridge, Waco, and Elian Gonzalez, but they were not about to follow Timothy McVeigh in blowing up the Murrah Federal Building in Oklahoma City, killing 168, including 15 children in a day care center in the building, and three fetuses.

Faculty meetings can be painful, but academicians are not going to emulate Amy Bishop in shooting up a meeting.

High school can be an emotionally trying time for adolescents, but Columbine is not the answer.

Stack’s killing an IRS employee is as tragically futile as that other lunatic, the Unabomber, who also published a deranged manifesto. Both megalomaniac rants are a sure cure for insomnia, not a call for a mass uprising.

Attacking the IRS will be no more effective than Wesley Snipe not paying his taxes.

As a computer engineer, Stack should have realized that the heart of the IRS is its servers, the ones that match the W4’s and 1099’s to your 1040. A magnet could destroy more than an armada of Piper Cubs, but I don’t recommend it. Man Against the Machine, not Man Against Man, should be the approach. Put the mainframes and servers out of service, and then you have accomplished something, but I don’t recommend it.

Being audited is as pleasant as a root canal without anesthesia, but I don’t fault the IRS agents.

Stack’s underlying problem wasn’t even with the IRS. The Agency was just the messenger for a stupid provision enacted by Congress decades ago. It essentially barred software engineers from acting as independent consultants.

So what if the hard copy version of the Internal Revenue Code of 1954/1986 is thousands of turgid pages long. Machiavelli and Kafka would revel in it. IRS employees don’t understand it. Lawyers and CPA’s master it. Politicians decry it, but Congress can simplify it anytime it wants.

But an army of Joseph Stacks can’t change it.

Nor can the random act of a psychotic.

Stack took it to the IRS.

Terry Lee Hoskins said come and get it.

Terry owed money to his bank and the IRS.

The bank was going to foreclose on the house and maybe his business.

Terry sent a message to the bank.

He bulldozed the house to the ground. Come and get it!

Customers show their support by lining up to purchase carpet from his his carpet business.

Monday, February 15, 2010

Have You Noticed California lacks a Lieutenant Governor?

The Constitutional office of Lieutenant Governor has been vacant for three months in California.

Have you noticed? No.

Has it made a difference? No.

Do you even know who the previous Lieutenant Governor was? For the record, it’s John Garamendi.

Who was his predecessor? Cruz Bustamante.

Lieutenant Governor Garamendi was elected to Congress on November 3, 2009, and immediately absconded to Washington on November 5. That’s all you need to know.

Just a heartbeat away from the governorship, and he wanted to be last in seniority in Congress.

California’s lieutenant governor actually has more powers than the Vice president of the United States. Every time the Governor leaves the state, every time the Governator flies to the opening ceremony in Vancouver, home to Austria, or to an annual body building conference in Ohio, the lieutenant governor becomes acting governor of California. He’s also a Regent of the University of California.

That’s why Lieutenant Governor Garamendi gave it up.

Imagine trying to deal with an absentee governor, broken budget, the wildfires, floods and landslides, a dysfunction legislature, and a financially strapped UC! The position is no longer ceremonial.

Since the Governor ofetn leaves California, who makes these critical decisions in his absence? By an amazing coincidence the powers devolve upon the California Attorney General, the once and perhaps future governor, Jerry Brown.

The state is saving money by not paying a lieutenant governor, but the salary is chump change compared to the $20 billion budget deficit.

The vacancy exists because Sacramento is broken. Decisions become pure politics, driven by the primary voters in each party and fears of future opponents.

Governor Schwarzenegger nominated Senator Abel Maldonado of Santa Barbara as Lieutenant Governor.

Senator Maldonado has two unique characteristics in Sacramento. First, he is a Hispanic Republican, the oldest son of immigrant farm workers. Second, he is a moderate Republican who’s willing to cross the aisle.

Senator Maldonado has two disqualifications. First, he angered conservatives and the two talk show hosts on KFI, John and Ken, by voting to raise taxes. Second, like most politicians, he is very ambitious. He’s planning to run for higher office. Democrats do not want to give the Hispanic Senator a statewide platform to run against them.

The California Legislature, in this case the Assembly, has shown why it is held in even lower regard than Congress.

Under the California Constitution, the legislature has 90 days to confirm or reject the nomination. Failure to act results in the nominee being confirmed.

The senate voted to confirm Senator Maldonado last week, but then the assembly voted 37-35 to confirm him last Thursday. The vote was 37-35 to confirm. All 35 negative votes were cast by Democrats.

37-35 looks like a majority, but under the legislature’s rules, a majority must be 41 votes, half plus one of the 80 seat Assembly. This, a majority is not a majority, which is what one has come to expect from Sacramento.

Governor Schwarzenegger thought of going ahead, assuming the senator was confirmed, and litigating if necessary.

Instead, he pulled the nomination last Friday, and plans on his return to the state tomorrow to reappoint the senator to the lieutenant governorship.

The 90 day clock runs anew, and the circus resumes.

Sunday, February 14, 2010

Will Cambridge, Massachusetts Out Berzerkly Berzerkly, California

Once upon a time, 1964 to be precise, the University of California Berkeley (UC, Cal, Berkeley) was rated the world’s greatest university, surpassing the elite east coast universities, Harvard, Yale, and Princeton. Forget U.S. News, by that standard Berkeley may still be the world’s best university,measured by the most units in the top ten of their disciplines.

Nobel Prizes flowed into Berkeley, followed by Fulbrights, Purlitzers, and MacArthurs. Memberships in the National Academy of Science and the National Academy of Engineering soared. Berkeley was truly the greatest.

And yet, at the pinnacle of academic success, Berkeley was transforming into Berzerkly, the only word that fully describes a city, university, and state of mind.

The reputation for student activism, riots, dope, hippies, and all around zaniness matched the academic reputation. Berkeley’s elected officials followed suit, and the Left Coast was established. The Bank of America near the campus has no windows.

Mario Savio and the Free Speech Movement triumphed.People’s Park became a rallying cry, and the great President Clark Kerr was fired by the trustees.

Those were the days, my friend, those were the days.

Thanks to U.S. News., Harvard and MIT have passed Berkeley in reputation, but Berkeley is still in a league of its own. Louis Gates and Sergeant Crowley in a Beer Summit do not compare to naked tree huggers protesting enhancement of the football facilities on top of the San Andreas Fault.

Just last month, Berzerkly residents filed a class action, public nuisance suit against 35 fraternities. Injunctive relief is sought, seeking to ban the serving of alcohol in the fraternity houses. They complained of loud parties, binge drinking, shooting of fireworks, harassment of passerbys,and public urination. Cambridge is too genteel for these problems.

But now Cambridge is going all the way; it is about to surpass Berzerkly; Cambridge is going green where even Berkeley does not go.

The city created last May the Cambridge Climate Congress in response to the “climate emergency” plaguing Cambridge. Since Cambridge’s weather hasn’t changed, the council members are probably inhaling Berkeley’s leftover California Skunk.

Borrowing from the old San Francisco based Friends of the Earth’s motto, “Think global, act local,” the Cambridge Climate Congress has drafted a plan for Cambridge, a plan that will out green any other city in America, if not the world. This city of 100,000 will unilaterally solve the global climate crisis of 6 billion humans, once it digs out, that is, from recent blizzards burying the east coast.

Let me add that these proposals are only recommendations to the City Council. Some are full proposals for action, some are simply suggestions for discussion, some go back to the energy shortages of the 1960’s, some are ideas from elsewhere, but the totality is a plan that echoes the Green Police ad by Audi (available on YouTube) at the super Bowl. If this is the future, we are in trouble; it is freaky, scary.

Some of the proposals are:

Congestion pricing to reduce car driving
Elimination of curbside parking
Tax paper and plastic bags
Ban plastic bags and bottled water in the city
Mandate restaurants and public schools institute “meatless or vegan Mondays”
Grow organic foods locally
Advocate vegetarianism and veganism
Institute a voluntary carbon tax
Attempt to tax carbon-intensive transport and usage in Cambridge
Create a Climate Emergency Resource Board
Set GHG(Greenhouse gasses) emissions reduction goals
Adaption plans
Community awareness and action plans
Create municipal jobs to address the climate emergency
Hire a community outreach coordinator
Additional funding to measure GHG’s
Implement lifestyle accounting
Full cycle accounting of emissions
Measure the emissions from growing the food and manufacturing the products imported into Cambridge
Long term goal(20 years)of turning Cambridge into a net emissions free,zero waste products city
Perform a vulnerability assessment for Cambridge and then develop an adaptation plan
Promote environmental justice so that policies can be adjusted to help people in disadvantaged situations
Support a community awareness program
Home composting
Expand use of alternative energy
Offer green power incentives
Create a more pedestrian and bike friendly city
Increase use of public transportation
Green infrastructure

Finally, to make it all work, train volunteers to go home to home.

Now that the Cambridge Climate Congress has solved Cambridge’s climate emergency, what is it going to do about the city of Somerville, which is only a few blocks from the back side of Harvard?

Did I mention that Boulder, Colorado, which is second only to Berkeley in the West when it comes to progressivism, just announced that its less restrictive plans to go green are falling substantially short?

What does Cambridge know that Berkeley and Boulder don’t?

Thursday, February 11, 2010

The Plague of Red Light Bandits

California executed Caryl Chessman at 10:00am on May 2, 1960, thereby killing, it thought, the Red Light Bandit. Chessman, an avowed petty criminal, was convicted in 1948 of placing a flashing red light on his car, and then impersonating a police officer, to pull over women and sexually assault them. Kidnapping and sexual assault were capital offenses then.

The Red Light Bandit was somnolent for 6 decades in California before a new, virulent form of red light banditry spread across the globe. Australia, England, Germany, Italy, Netherlands, Singapore, and the United States are afflicted. Cities and towns as diverse as Buffalo, Cedar Rapids, Charlotte, Irvine, New York City, and communities through California and Texas have caught the fever, not to mention Arizona and Virginia. 439 communities in 26 states and the District of Columbia have embraced red light bandits.

This Red Light Bandit is a camera, digitized and computerized, that snaps photos of cars driving through red lights, employing the famous "California rolling stop," or making illegal right turns on red without stopping.

Governments love the cameras, ostensibly to promote safety on the road, but are seduced by the revenues. Los Angeles is reaping $400,000 monthly just for the right turns on red, for which the fine is $381. With fees attached, it’s over $500, not to mention that it constitutes a moving violation on your driver’s record. Insurance do not like to see that. Running a red light is a $446 fine.

Some communities are so entranced by the revenues that they change the rules of the game. The normal yellow light lasts 4 seconds, but these communities lower it to three seconds to increase the number of tickets. We used to label those communities “speed traps.”

The new addition is to add speed censors to the cameras, thereby ticketing “speeders.”

Governor Schwarzenegger, as part of his new budget proposal for California, a state which is at least $20 billion in the red, proposed installing speed sensors, assessing fines of $225 and $325, and earning the state about $500 million annually. Going 1 mile over the speed limit, let’s say 36 in a 35mph zone, would result in a $225 fine, plus additional fees.

The Governator’s proposal is stuck in neutral in Committee. Many states and communities, when citizens get to vote on these cameras, vote them down. Other states, such as Texas, have barred municipalities from installing speed sensors on their cameras, but they can continue with the red light cameras. In addition, the State of Texas can install the speed cameras, if it wishes, on its highways.

Public response, not including voting down the cameras, has been to result in some instances to vigilante justice. The cameras have been shot out, stolen, or otherwise damaged. The response to the equipment failures is to quickly repair (within a day) or replace the unit. Compare that to the response time in filling potholes, which can last years in some communities.

The processes afforded Caryl Chessman at arrest, arraignment, and trial fall far short of the Due Process standards imposed by the Warren Court in the years after his execution. Many believe that he was denied even the rights that existed in 1948.
Be that as it may, he had more rights than those caught by the red light bandits.

One of basic constitutional rights is to confront our accuser. How do you cross-examine a camera, much less one installed and operated by a private company which has a vested interest in maximizing fines, since these companies receive a large percent of the fines. We can cross examine the arresting or ticketing officer, and if the officer fails to appear, have the charges and tickets dropped. We cannot question or cross examine an inanimate object, one which lacks discretion.

Consequently, almost every pays without question these tickets.

But wait until the referendum!

(By way of disclosure, I have not yet received the dreaded red light letter, but since I live next to Irvine, which has a number of these cameras at intersections I drive through, it’s only a matter of time.)

Monday, February 8, 2010

President Obama Drove Through a Blizzard Saturday

President Obama drove five minutes through a blizzard Saturday to the dispirited and depleted DNC to rally the troops, warm them up, cheer them on, boost their spirits, push them, exhort them to "Win One for the Gipper," whatever you do to a disheartened political body.

President Obama remains cool under the coolest of circumstances as long as he has TOTUS.

Actually he didn’t drive. It was a full motorcade going just two blocks to the Capital Hilton, and one of the cars with reporters was struck by a tree on the way back. The carbon footprint stood out in the snow.

President Obama deserves credit. Even the postal workers took the day off on the “Smowmageddon” or “Snowpolcalypse.” So did many of the DNC members who couldn’t make it because planes and trains were cancelled.

DC can’t handle snow. They do great with hot air and bull, but not snow.

The supreme irony is that as DC digs out from its second monster blizzard in 1½ months, the Obama Administration is plowing forward with its plans to reshape America in its Crusade against global warming, except in blizzards when it is referred to as global climate change.

The Administration may or may not be fighting a global war against terror, but it is definitely fighting a stealth war against global warming, perhaps a phantom opponent.

The current public campaign is the unhealthy, and perhaps lethal for Democrats in November, health reform. The House also passed a cap and trade bill, which, even before Massachusetts, was going nowhere in the Senate.

Other Obama Administration priorities are financial reform, card check, closing Gitmo, jobs,nationalizing student loans, but only climate change measures can be unilaterally imposed by the Obama Administration without Congressional legislation, thanks to the 5:4 Supreme Court decision two years ago in Massachusetts v. EPA.

The Administration is using its full regulatory powers to implement carbon controls, cap and trade, and whatever else comes along.

Just today the Secretary of Commerce announced a new agency in the Commerce Department, the vaguely named Climate Service Agency. Secretary Gary Locke, apparently blinded by the 32.4 inches of snow at Dulles International Airport, and the mere 17.8 inches at Reagan-National Airport, proclaimed “climate change represents a major threat.” Forget the “change” part, he meant global warming because that is what the Obama Administration is acting against.

Forget the 16 inches of snow that fell on DC December 19, and the up to 2 feet expected later this week. Global warming remains a threat that calls for mustering all the Administration’s forces.

Ignore the fact that the IPCC 2007 Report, the gold standard which, along with former Vice President Al Gore, won the Nobel Peace Prize, is rapidly turning into fool’s gold.

The SEC wants worst case global warming impacts reflected in shareholder statements and the CEQ wants global warming considerations discussed in NEPA statements.

NASA may not be going to the moon again, but it will study the climate.

Who needs Congress when you have the agencies?

Saturday, February 6, 2010

Judge Brett C. Klein Censured for Exercising Common Sense in a Class Action Suit

The California Commission on Judicial Performance censured retired Los Angeles Superior Court Judge Brett C. Klein last Tuesday and further banned him from presiding over future cases. In short, the Commission defrocked Judge Klein.

You might be wondering what His Honor did, what heinous acts he committed, to warrant the judicial death penalty.

Did the judge accept a bribe


Did he accept illegal campaign contributions?

No; remember he’s retired

Did His Honor fall asleep on the bench?

No, but a California Supreme Court Justice was not censured for nodding off on the bench during oral arguments in the late 1960's and 1970's.

Is he suffering from dementia?

His acts show too much wisdom for dementia

Has he acted injudiciously in sexually harassing someone in either his judicial or non-judicial capacity?

Not this judge

Has the judge practiced discrimination on the basis of race, sex, gender, sexual orientation, ethnicity, religion, national origin, or any other suspect classification?

If he has, it’s not in this case

Has the jurist exceeded his jurisdiction?

He’s a judge with general jurisdiction

So what did the Honorable Brett C. Klein do?

He exercised common sense.

The judge held that the attorney’s fees and payment in a class action suit should be paid in script, i.e., coupons, in multiples of $10.00, redeemable on purchases in defendant’s stores.

Defendant was accused of violating privacy laws in asking customers to show personal identification, information.

Class action suits serve a critical role in bringing justice to the less fortunate members of society and to individual claimants whose damages do not economically justify a regular law suit.

Some lawyers though abuse class action suits essentially to extort large attorneys’ fees from the defendants while delivering little benefits or justice to the victims.

Three examples illustrate these abuses. In one infamous Alabama class action settlement against the Bank of Boston, the class members received $8.76 each in a credit on their mortgages, but were assessed $91 each to cover the attorneys’ fees.

That reeks of some sort of fraud.

In another case, Cheerios purchasers received a coupon for a box of Cheerios, but the attorneys reaped $1.75 million in fees.

And then comes the classic Ford Explorer settlement. Class action suits were brought against Ford (and Firestone) for the safety issue of Explorers with Firestone tires rolling over at high speeds. A California suit was settled with the Explorer owners receiving a coupon for $500 off a new Explorer or $300 off any other Ford vehicle.

Why would you want to purchase a new Explorer, or other Ford product, if the one you’re driving is dangerous?

That common sense question did not bother the attorneys for the claimants. They received $25 million in fees, while few of the vouchers were redeemed.

Judge Klein was presented with a proposed settlement, giving $2,500 to the named plaintiff, $10 coupons to the class members, and $125,000 to the attorney.

He changed the settlement by holding both the named plaintiff and the attorney would be paid in $10 coupons. The site of the attorney receiving a stack of $10 vouchers adding up to $125,000 would be a great Kodak moment.

Judge Klein, quoted in the LA Times, explained the settlement “could only be fair if the lawyer was paid the same way.”

What a radical, but common sense, fair approach! Pay the lawyers in kind. If they reach a meaningful settlement, then their reward should be commensurate.

His Honor’s decision could be a wonderful precedence.

Unfortunately, the judge has been soundly rebuked for exercising sound judgment.

In addition, the reality is that the class action attorneys, as well as bankruptcy attorneys, go forum shopping for favorable jurisdictions, judges, and fees.

Friday, February 5, 2010

The Mugging of Toyota

Toyota has produced cars that pose a risk to life and safety. Accidents, fatalities, serious injuries, and tragedies have resulted.

For that Toyota is being pilloried in the media and attacked by politicians.

Perhaps Americans feel betrayed because Toyota has produced generations of safe, well designed, well built cars. Toyota was the gold standard of cars, but has quality issues in recent years.

Perhaps we are shocked that Toyota is no better than Detroit in quality.

Perhaps we cannot comprehend that Toyota is seemingly clueless and has no idea what is happening.

Perhaps it’s part of the phenomenon of rooting for the underdog, and then turning on the underdog once it’s been on top too long.

Perhaps in these economic times of trouble the people need to see large companies share in their misery, especially a foreign company.

And yet, GM built generations of poorly designed and poorly built cars, going back to the Corvair. Toyota’s success is as much due to GM’s quality problems as its own excellence.

Ford produced both the Pinto with exploding gas tanks and the Explorer, with or without Firestone tires. with rollovers. At least 27 died in the Pinto fires, and over 100 with the Explorer rollovers. The accident rate of the Ford vehicles exceeds that of the Toyotas. But no public and political tsunami ever swept over Ford.

GM produced from 1973-1987 about 9 million Chevy and GMC pickup trucks with side-saddle exploding gas tanks, but escaped public excoriation. Over 725 paid with their lives for the problem GM knew of since the beginning of production.

Chrysler had a long standing problem with transmissions, and still has a reputation for poor quality. It never received the Toyota treatment.

No manufacturer is immune from safety recalls.Mercedes and BMW had their problems.

Yet Toyota has won the fickle finger of fate award.

Here’s the reality.

Motor vehicles are complicated mechanized equipment with 10,000 parts and full of electronics.

The cost of the automobile is tens of thousands of fatalities annually.

Brakes fail.

Accelerators stick

Tires explode

Transmissions stick

Axles and transaxles snap

Batteries die

Lights burn out

Vehicles hydroplane

SUV’s roll over

Electronics malfunction

That’s not including driver error.

Tragic accidents happen

Yet Toyota is being mugged by the press and politicians.

Last week the UAW and Teamster unions picketed in front of the Japanese Embassy in Washington to protest Toyota’s closing of its plant in Fremont, California. The plant is Toyota’s only unionized plant in the United States. In addition, Toyota will be using non-union car carriers.

Unions have used such tactics in recent years in their battles with management.

Congressional hearings have been called. Congressman John Dingell, the Grand Inquisitor of Congress, will chair one of them. Congressman Dingell is from Michigan, and has long been known as an ally of Detroit. Dearborn Heights is in his Congressional District. Ford is coincidentally headquartered in Dearborn, Michigan.

It may just be another coincidence, but GM and Chrysler are now owned by the U.S. government and the UAW. Chicago Rules govern this administration from Chicago. Opposition, political until now, but perhaps also economic, may be crushed by any means possible. Toyota is a private, Japanese company. GM and Chrysler are nationalized American companies.

Toyota estimates that the cost of the recalls and lost sales will be about $2 billion. That does not include the costs of trial lawyers, class action suits, and the settlements for the victims.

Toyota is entering legal purgatory.

Thursday, February 4, 2010

Gays in the Military: Politics as Usual?

The Obama Administration just announced it will take a year to study the issue of gays in the military, and then report to Congress on changing the current policy of “Don’t ask; don’t tell.” A Congressional vote is necessary to rescind “Don’t ask, don’t tell” because Congress codified it in the Military Personnel Act of 1993, after President Clinton initiated a veritable war by attempting to rescind the military’s anti-gay policy through Executive Order.

There’s nothing to study. No detailed report are necessary. No nuance or splitting the difference; no grand political compromise will resolve the issue. Either gays serve, or they don’t.

The delay is simply political – to “kick the can” past the November election. Congress would clearly prefer not to vote on the issue during an election year. We expect courage from our military personnel, but clearly not from politicians.

But what is the issue? Is it military or political?

The simple issue is one of military preparedness. Sexual orientation has no bearing on military preparedness.

Baron Von Steuben, the drill master of the Continental Army, he who whipped the colonial army into shape, may or may not have been gay, but it didn’t matter. The Continental Army beat the professional British Army.

Just as “there are no atheists in a foxhole,” so too the military has often overlooked sexual orientation in wartime. The code then is bravery, not preference or religion.

Winston Churchill, twice First Lord of the Admiralty in England, is reputed to have once said the tradition of the Royal Navy is “rum, sodomy, and the lash.” England lifted its ban on gays in the military in 2000. Israel, perhaps the best military in the world, has no problem with gays in the military.

But we have to study it for a year? A further year will not tell us anything we do not already know. Ask England or Israel to fax over their policies. That’s all we need.

If the issue is political, then a grievous political misjudgment is at work.

The key issues in November 2010 will not be gay rights or defense of marriage. In the immortal words of President Clinton: "It's the economy stupid."

Economics, or Heaven forbid, a terrorist attack will drive the election.

A basic rule of politics is that in times of economic difficulty, voters vote their pocket books, but when times are good, they vote social issues. Abortion and gay rights will not be defining issues this election cycle.

If the Obama Administration, Secretary Gates, and the Joint Chiefs of Staff wish to end the policy, now is the time when the Democrats still control Congress, and the President retains some capital in the bank.

The November elections are 8 months away, which is an eternity in politics, but absent a sea change in the electorate, November will be a Republican rout. A conservative, Republican Congress will be less likely to change the existing policy than the current Democratic Congress.

The Congressional Republicans were in shell shock a year ago. They would have beat a strategic retreat on the repeal of “Don’t ask, don’t tell.”

Our perspective has changed on gay rights, or LGBT rights, since 1993.
Eventhough a majority of the public opposes same sex marriages, they support civil union statutes - close but not the equivalent of marriage.

Police, fire, clergy, Hollywood, students, teachers, professors, lawyers, doctors, dentists, accountants, executives, reporters, publishers, editors, labor leaders have come out of the closet.

Even politicians have come out. Democratic politicians are more likely to be open about their sexual preferences, but Michael Huffington, Steve Gunderson, and Jim Kolbe were not, and are not, the only gay Republican Congressmen. Presumably Larry Craig was not the first, last, and only gay Republican Senator. Governors and mayors have come out of the closet.

Indeed, probably only among LGBT athletes on team sports is there a reluctance to come out, as least while still competing.

Senator John F. Kennedy penned a classic best seller in 1955, Profiles in Courage. He detailed the stories of eight Senators who displayed great political courage.

Sadly, many of today's legislators find their courage in campaign contributions, focus groups, and polls.

If repeal fails, it will simply be another casualty of the health reform battles, and that rests on the President. Upon assuming office, President Obama had to pass some sort of economic stimulus plan, address the bankruptcies of GM and Chrysler, and further shore up the financial institutions of America.

Beyond that though, he subordinated his program, cap and trade, card check, “Don’t ask, don’t tell,” to health reform, losing health reform, his political capital, and the remainder of his program in the process.

Perhaps the reason the Obama Administration has revived the military policy now is to reestablish his connections with his base. If so, that is especially cynical, and politics as usual.

It doesn’t have to be.

Monday, February 1, 2010

The SEC Discovers Global Warming

The SEC was created in 1934 to regulate the securities exchanges and to protect securities investors from fraud and market manipulations. President Roosevelt was of the view that “it takes a crook to catch a crook.” (The same perspective as Joseph Peter Simini, my auditing professor in college). Therefore he named as the first Chair of the SEC one of the biggest manipulators of the 1920’s – one who had the brains to pull out of the market before the Great Crash, Joe Kennedy, the patriarch of the Kennedy clan.

The SEC did a great job in the 1930’s in cleaning up the markets. It acquired a reputation as one of the best of the best of the federal regulatory agencies. The agency promulgated Rule 10b-5 and initiated the crusade against insider trading, well known to generations of law students. The SEC was also given increasing powers and responsibilities while its resources lagged. In other words it had to do more and more with less, while in reality it did less and less as it was perusing prospectuses, proxy statements, and utility holding companies for material omissions and misstatements.

The SEC’s ability to detect and thus protect investors was severely compromised. It missed the Great Salad Oil Scandal of 1963, which almost sank American Express, and cost AmEx, Bank of America, and Bank Leumi $150 million. It was clueless about Black Monday, October 19, 1987 when the Dow Jones plunged 22.6% because “sophisticated” investors practiced “Portfolio insurance.”

It was utterly surprised by the near bankruptcy of Long Term Capital Management in 1998. This hedge fund was a warning to come of 2009, but the SEC did nothing.

The SEC was blindsided by the corporate defalcations of Adelphia, Enron, Global Crossings, Peregrine Systems, Tyco, and WorldCom a decade ago. Sarbanes-Oxley was Congress’ response.

Indeed, even if you waved a securities fraud in the SEC’s face, it might miss it, as shown by the Madoff $50 billion Ponzi scheme. The SEC had the chance as early as 1992 to shut Madoff down, but ignored warnings and conducted incompetent audits and investigations of Madoff for almost two decades.

One of its early goals was to shut down boiler rooms, bucket shops, “pump and dump” and penny stock frauds, but it took 16 years to shut down Robert Brennan and his First Jersey Securities. You may remember the effrontery of Brennan, who in television ads, used to alight from a helicopter exclaiming “Come grow with us.”

And now the SEC, the same SEC that has trouble stamping out securities fraud, is joining the crusade against global warming. President Obama’s SEC on a party line 3:2 vote proposing issued standards requiring publicly traded corporations to disclose business risks and opportunities related to climate change.

The President’s Council on Environmental Quality (CEQ) tried a similar idea three decades ago. President Carter’s CEQ issued regulations in 1977 mandating “worst case” analysis in NEPA statements, in other words, the classic “What if ….”
Let’s think for a moment about worse case scenarios:

A magnitude 9.5 earthquake, The really “Big One,” is centered in downtown LA or San Francisco at noon on a Monday (The San Francisco Earthquake of 1906 is estimated to be between a 7.7 and 8,3).

An earthquake in the Tennessee valley similar to that of the series of three quakes on the New Madrid fault between December 1811 and February 1812. The quakes two centuries ago, of magnitudes over 8.1 to 8.3, caused church bells to ring on the East Coast.

A Category 5 hurricane directly strikes Boston (The last major hurricane to strike New England was the Great New England Hurricane of 1938). New England is overdue.

Planes crash into the Empire State Building and Twin towers (both happened.

Mount Rainier, an active volcano, erupts with the fury of a Krakatoa.

40 days and nights of rain fall on Iowa.

SARS spreads rapidly around the globe.

Directv crashes.

Needless to say, we don’t run our lives from worst case scenarios eventhough disasters and catastrophes occur.

President Reagan’s CEQ rescinded these regulations in 1989, and the Supreme Court held in 1989 that no duty existed for a worst case scenario.

The SEC, which is having trouble discovering material misstatements in securities documents, is now acting on a “science” which has been manipulated by some academicians and politicians.

The “Gold” standard internationally on global warming, now referred to as global climate change, as we are experiencing an unusually deep, cold, and wet winter, is the periodic IPCC Assessment Report. The fourth edition was issued in 2007.

It asserts for example that the Himalayan glaciers will melt in 30 years and that “up to 40% of the Amazon rain forests could react drastically to even a slight reduction in precipitation” The rain forests would most likely be replaced by ecosystems such as tropical savannas. These were alarming, headline grabbing "scientific" statements.

The IPCC claim is that the report was based on sound science and peer review.

We now know through the leaked East Anglia emails that some of the science is questionable.

We also learn that the estimate for the decline of the Himalayan glaciers is off by at least 300 years, and is not based at all on scientific studies.

The report cited a 2005 study by the World Wildlife Fund, which cited a 1999 article in the New Scientist magazine, which in turn quoted an Indian glacier expert in saying the glaciers could disappear in 40 years. He denies ever making that statement. So much for peer review of the science.

The rain forest claim is just as tenuous. It was also based on a WWF report. The 40% figure came from a letter published in Nature Magazine. The letter discussed harmful logging activities. Once again the gold standard was based upon some dramatically short of any peer review.

And now we learn that Dr. Rajendra Pachauri, Chair of the IPCC, knew of the Himalayan inaccuracies before Copenhagen, but said nothing. He had previously rejected as “voodoo science” a report by the Indian Government which questioned the validity of the IPCC statements about the glaciers.

The SEC is ironically basing its regulation on false and misleading material omission and misstatements.