I graduated from college a well-educated young adult most ideally suited to be a professional attendee at trendy cocktail parties; i.e and English major. Then, for lack of better options, I went to law school and became a trial lawyer.
More than 30 years after graduating college, I referred to my English degree, however, for a reason. Herman Wouk was and still is one of my favorite modern authors. His historical fictions, The Caine Mutiny and Winds of War, were great reading and both translated seamlessly onto the movie screen.
In particular, The Caine Mutiny stands as one of the great movies, not about war, but about men at war. It was a star-studded film, one my dad relished as much for the story as for the cast. Two of the standouts were Jose Ferrer, as Lt. Barney Greenwald, and Fred MacMurray, as Lt. Tom Keefer. ("Here's to the real author of the Caine Mutiny.. ---splashes wine in Keefer's face---.... If you wanna do anything about I'll be outside. I'm a lot drunker than you so it'll be a fair fight.)
Of course the star among stars was Humphrey Bogart and for two reasons: he was Bogart and his character was Lt. Cmdr. Philip Queeg. Queeg was the ill-suited Navy officer placed in a command above his abilities, neurotic, narcissistic, constantly plagued by doubts and perceived persecution and who, when nervous or threatened, would pull out two large ball-bearings and play with them in his right hand while talkng.
In the most memorable scene in the movie, during the court martial, Jose Ferrer, as Greenwald, conducted a cross-examination of Bogart, as Queeg. Artfully manipulating the questions and pushing each psychological button, Greenwald inexorably breaks Queeg down into a hunched-down, shaking volcano of nerves. Finally, he asks Queeg about a particular incident when Queeg earned the nickname "Yellow Stain."
In response to the question, Queeg, first takes out his ball-bearings and begins "clicking them", then launches into a lengthy, rambling recitation of everything that went wrong after he assumed command. He blames the prior captain for leaving him poorly trained officers and crew, blames the officers and crew for causing the various mishaps ( i.e. a cut tow line, The Strawberry Incident), and accuses the officers and crew of being disloyal and conspiring against him.
As the diatribe progressed and the camera pans around the room, the Board of Inquiry members become increasingly uncomfortable and concerned, exchanging glances and cocked eyebrows. Queeg's speech becomes more pressured and his leaps from topic to topic more disjointed and rambling. Finally, almost exhausted, he says.."I hope I've answered your question." Greenwald says "no further questions." It was, and still is, one of the great scenes ever filmed; on par with "To Kill a Mockingbird" and "Inherit the Wind."
By now, I am sure you have connected the dots; but let me elaborate. From my view, we have in the Oval Office a better-looking, more articulate Lt. Cmdr. Philip Queeg. A narcissist in ajob far above his abilities and plagued by insecurites, persecution and neuroses. Every psychological trait displayed by Queeg, during the Caine Mutiny and particularly in his courtroom tirade, has been shown to us by our sitting President. For example (and I paraphrase for brevity):
Refusal to take Responsibility/Prevarication and Exaggeration
Commander Queeg: I was left with a poor crew by the former Captain
Obama: I was left with a terrible economy by the prior administration
Commander Queeg: The error and mistakes were entirely the crew's
fault
Obama: The Wall Street collapse was caused by the failure of the prior
administration to regulate the financial markets
Persecution Complex
Commander Queeg: The officers and crew are conspiring against me
Obama: The Tea Parties are a collection of right-wing ideologues who
will stop at nothing to attack me and my administration
Commander Queeg: I was the only one who was competent among the
officers and I was completely in control of the
situation
Obama: The American people will grow to like the Healthcare Bill
because they have been confused and misled by right-wing lies
and distortions. I have been completely forthright and
transparent.
Now, these various clues which manifested themselves at various points in the past 18 months could easily be dismissed individually as aberrations or pooh-poohed as exaggerations.
When we least expect, however, a circumstance for some reason, perhaps no teleprompter or such close proximity to his less-than-worshipful audience, pushes a psychological button and all the repressed traits emerge. Watch last week's 17 minute rambling diatribe with a critical eye. You will see it all. In response to one simple question about healthcare and "over" taxation, the sitting President launched into a 17-minute evasive rant that no doubt had Herman Wouk laughing from on-high. Watch it carefully and you see every trait: insecurity, narcissism, persecution complex, refusal to take responsibility, denial.
It was a virtuoso performance; one for the ages. As both Queeg and Obama said at the end, "I hope I answered your question." Well Mr. Sitting President, you to took 17 minutes to not answer the question asked of you; but in those 17 minutes you answered so many others of far greater importance.
At least we now know the measure of the man in the Oval office -- and by his own words.
Tuesday, April 6, 2010
Sunday, March 7, 2010
The Real Story of the "MacDonald's Coffee Case" and Tort Reform
In my blog earlier this week, I referred to the now well-known but misunderstood verdict against MacDonald's several years ago as a result of which a woman received compensation for burns suffered when she spilled hot coffee in her lap. In urban legend, fostered by both lazy journalism and insurance company propaganda, the result has become synonymous with "frivolous" lawsuits and "runaway" juries. It has come to symbolize how the tort compensation system is somehow broken.
First, I will not try to reinvent the wheel. Rather I will refer you to a comprehensive discussion of the case's factual and procedural history that has been published at a website dedicated to research on personal injury-related topics: http://www.hurt911.org/mcdonalds.html.
Having given attribution, I now feel free to quote extensively from this article as follows:
"Stella Liebeck, of Albuquerque, New Mexico, was a passenger in a car when she was severely burned by McDonald's coffee in February 1992. Liebeck, 79 at the time, ordered coffee that was served in a styrofoam cup at the drive through window of a McDonald's. After receiving the order, the driver pulled his car forward and stopped so that Liebeck could add cream and sugar to her coffee. . . . . THE CAR WAS STOPPED when Liebeck placed the cup between her knees and attempted to remove the plastic lid from the cup. As she removed the lid, the entire contents of the cup spilled into her lap."
"The sweatpants Liebeck was wearing absorbed the coffee and held it next to her skin. A vascular surgeon determined that Liebeck suffered full thickness burns (third-degree burns) over 6 percent of her body, including her inner thighs, perineum, buttocks, genital and groin areas. She was hospitalized for eight days, during which time she underwent skin grafting. McDonalds refused to pay the 79-year-old woman's initial medical expenses totaling $11,000. McDonalds actually countered with an offer of $800. And they also refused to turn down the heat on their coffee. Left with $20,000 unpaid bills, Stella Liebeck, a Republican who had never filed a law suit in her life, finally hired a lawyer. Liebeck sought to settle her claim for only $20,000, but McDonald's refused. A mediator later recommended the parties settle for $225,000. Again, McDonald's refused and the case went to trial."
"McDonald's representatives lied to the court and jury about the existence of other claims, but documents showing that they knew of more than 700 claims by people burned by its coffee between 1982 and 1992 were admitted in to evidence. Some claims involved third-degree burns substantially similar to Liebecks. This history documented McDonald's knowledge about the extent and nature of the intentionally created hazard. McDonald's even ignored a request from the Shriner's Burn Institute in Cincinnati to turn down the temperature of its coffee. McDonald's also said that based on a consultants advice, it held its coffee at between 180 and 190 degrees fahrenheit to maintain optimum taste. He admitted that he had not evaluated the safety ramifications at this temperature. Other establishments sell coffee at substantially lower temperatures, and coffee served at home is generally 135 to 140 degrees."
A chart introduced at trial showed that when skin is touched by liquid at 124 degrees it takes 3 minutes to cause a severe burn. When the temperature of the liquid is 156 degrees it takes one second. The speed at which the burn is caused continues to increase exponentially such that when Ms. Liebeck was scalded by coffee at about 180 degrees her full-thickness burns were instantaneous. Additionally, at lower temperatures, the potential victim has a chance to mitigate or avoid injury due to both time and the cooling of the liquid. In Ms. Leibeck's case the coffee was no different than napalm.
"McDonald's quality assurance manager testified that the company actively enforced a requirement that coffee be held in the pot at 185 degrees, plus or minus five degrees. He also testified that a burn hazard exists with any food substance served at 140 degrees or above, and that McDonald's coffee, at the temperature at which it was poured into styrofoam cups, was not fit for consumption because it would burn the mouth and throat. The quality assurance manager admitted that burns would occur, but testified that McDonald's had no intention of reducing the "holding temperature" of its coffee. McDonald's also claimed that customers buy coffee on their way to work or home, intending to consume it there, however, the company’s own research showed that customers intend to consume the coffee immediately while driving. McDonald's also argued that consumers known coffee is hot and that its customers want it that way. The company admitted its customers were unaware that they could suffer third degree burns from the coffee and that a statement on the side of the cup was not a "warning" but a "reminder" since the location of the writing would not warn customers of the hazard."
The jury awarded Liebeck $200,000 in compensatory damages. The jury reduced this amount to $160,000 because they found Liebeck 20 percent at fault for spilling the coffee (not because she was driving a car). The jury also awarded Liebeck $2.7 million in punitive damages, which equals about two days of McDonald's coffee sales.
After the trial and verdict, it was found that the temperature of coffee at the local Albuquerque McDonald's had dropped to a relatively safe 158 degrees Fahrenheit."
In fact, the trial judge, on motion of the defendant, reduced the punitive damages award to $480,000 under a procedure known as remititur. Thereafter, the parties entered into a settlement agreement, the terms of which were confidential.
Several points are illustrated by this case. First, this was NOT a frivolous case. Why is it that insurance companies want to portray cases where a trial has occurred, a verdict has been rendered and the defendant has been found by an impartial jury of the parties' peers to be negligent? Frivolous lawsuits are those that never should be brought, that are without factual or legal merit.
Second, this case illustrates perfectly that the tort system does work. The system has checks and balances and while, as in any system, there are aberrations, this was not one. Further, do not forget the scores of other cases, that would never attract attention, where a person with a legitimate claim is turned away by a callous, cynical jury as just another plaintiff with his hand out.
Finally, taking this illustration, let us consider it in the context of my proposal for tort reform. Knowing these facts, I am absolutely confident that the plaintiff would have had little difficulty in finding counsel willing to post a bond for costs in this case. In fact, under my proposal, after Macdonald's lost the case and the parties began post-trial settlement discussions, the plaintiff and her attorney would be entitled to additional compensation for their costs and fees as part of the settlement discussions.
Again I say, tort reform is NOT what is being dangled by the White House in its farcical demonstration of false bipartisanship. Tort reform, particularly medical malpractice reform has been a spectacular failure in states such as Massachusetts. Massachusetts has had a so-called "tribunal" screening system for almost thirty years. Instead of helping, it only burdened the courts further by grafting another proceeding into the trial process that requires the time of a judge, lawyer and doctor as well as court personal.
My proposal will have the exact opposite effect. It will immediately and drastically reduce the number of cases filed in the system. It will assure that those using the system are responsible for the costs and fees they generate. As with any radical proposal, it will require vetting and analysis; but at its core it is simple, effective and fair.
I could be wrong; I have been before
Tell me what you think.
First, I will not try to reinvent the wheel. Rather I will refer you to a comprehensive discussion of the case's factual and procedural history that has been published at a website dedicated to research on personal injury-related topics: http://www.hurt911.org/mcdonalds.html.
Having given attribution, I now feel free to quote extensively from this article as follows:
"Stella Liebeck, of Albuquerque, New Mexico, was a passenger in a car when she was severely burned by McDonald's coffee in February 1992. Liebeck, 79 at the time, ordered coffee that was served in a styrofoam cup at the drive through window of a McDonald's. After receiving the order, the driver pulled his car forward and stopped so that Liebeck could add cream and sugar to her coffee. . . . . THE CAR WAS STOPPED when Liebeck placed the cup between her knees and attempted to remove the plastic lid from the cup. As she removed the lid, the entire contents of the cup spilled into her lap."
"The sweatpants Liebeck was wearing absorbed the coffee and held it next to her skin. A vascular surgeon determined that Liebeck suffered full thickness burns (third-degree burns) over 6 percent of her body, including her inner thighs, perineum, buttocks, genital and groin areas. She was hospitalized for eight days, during which time she underwent skin grafting. McDonalds refused to pay the 79-year-old woman's initial medical expenses totaling $11,000. McDonalds actually countered with an offer of $800. And they also refused to turn down the heat on their coffee. Left with $20,000 unpaid bills, Stella Liebeck, a Republican who had never filed a law suit in her life, finally hired a lawyer. Liebeck sought to settle her claim for only $20,000, but McDonald's refused. A mediator later recommended the parties settle for $225,000. Again, McDonald's refused and the case went to trial."
"McDonald's representatives lied to the court and jury about the existence of other claims, but documents showing that they knew of more than 700 claims by people burned by its coffee between 1982 and 1992 were admitted in to evidence. Some claims involved third-degree burns substantially similar to Liebecks. This history documented McDonald's knowledge about the extent and nature of the intentionally created hazard. McDonald's even ignored a request from the Shriner's Burn Institute in Cincinnati to turn down the temperature of its coffee. McDonald's also said that based on a consultants advice, it held its coffee at between 180 and 190 degrees fahrenheit to maintain optimum taste. He admitted that he had not evaluated the safety ramifications at this temperature. Other establishments sell coffee at substantially lower temperatures, and coffee served at home is generally 135 to 140 degrees."
A chart introduced at trial showed that when skin is touched by liquid at 124 degrees it takes 3 minutes to cause a severe burn. When the temperature of the liquid is 156 degrees it takes one second. The speed at which the burn is caused continues to increase exponentially such that when Ms. Liebeck was scalded by coffee at about 180 degrees her full-thickness burns were instantaneous. Additionally, at lower temperatures, the potential victim has a chance to mitigate or avoid injury due to both time and the cooling of the liquid. In Ms. Leibeck's case the coffee was no different than napalm.
"McDonald's quality assurance manager testified that the company actively enforced a requirement that coffee be held in the pot at 185 degrees, plus or minus five degrees. He also testified that a burn hazard exists with any food substance served at 140 degrees or above, and that McDonald's coffee, at the temperature at which it was poured into styrofoam cups, was not fit for consumption because it would burn the mouth and throat. The quality assurance manager admitted that burns would occur, but testified that McDonald's had no intention of reducing the "holding temperature" of its coffee. McDonald's also claimed that customers buy coffee on their way to work or home, intending to consume it there, however, the company’s own research showed that customers intend to consume the coffee immediately while driving. McDonald's also argued that consumers known coffee is hot and that its customers want it that way. The company admitted its customers were unaware that they could suffer third degree burns from the coffee and that a statement on the side of the cup was not a "warning" but a "reminder" since the location of the writing would not warn customers of the hazard."
The jury awarded Liebeck $200,000 in compensatory damages. The jury reduced this amount to $160,000 because they found Liebeck 20 percent at fault for spilling the coffee (not because she was driving a car). The jury also awarded Liebeck $2.7 million in punitive damages, which equals about two days of McDonald's coffee sales.
After the trial and verdict, it was found that the temperature of coffee at the local Albuquerque McDonald's had dropped to a relatively safe 158 degrees Fahrenheit."
In fact, the trial judge, on motion of the defendant, reduced the punitive damages award to $480,000 under a procedure known as remititur. Thereafter, the parties entered into a settlement agreement, the terms of which were confidential.
Several points are illustrated by this case. First, this was NOT a frivolous case. Why is it that insurance companies want to portray cases where a trial has occurred, a verdict has been rendered and the defendant has been found by an impartial jury of the parties' peers to be negligent? Frivolous lawsuits are those that never should be brought, that are without factual or legal merit.
Second, this case illustrates perfectly that the tort system does work. The system has checks and balances and while, as in any system, there are aberrations, this was not one. Further, do not forget the scores of other cases, that would never attract attention, where a person with a legitimate claim is turned away by a callous, cynical jury as just another plaintiff with his hand out.
Finally, taking this illustration, let us consider it in the context of my proposal for tort reform. Knowing these facts, I am absolutely confident that the plaintiff would have had little difficulty in finding counsel willing to post a bond for costs in this case. In fact, under my proposal, after Macdonald's lost the case and the parties began post-trial settlement discussions, the plaintiff and her attorney would be entitled to additional compensation for their costs and fees as part of the settlement discussions.
Again I say, tort reform is NOT what is being dangled by the White House in its farcical demonstration of false bipartisanship. Tort reform, particularly medical malpractice reform has been a spectacular failure in states such as Massachusetts. Massachusetts has had a so-called "tribunal" screening system for almost thirty years. Instead of helping, it only burdened the courts further by grafting another proceeding into the trial process that requires the time of a judge, lawyer and doctor as well as court personal.
My proposal will have the exact opposite effect. It will immediately and drastically reduce the number of cases filed in the system. It will assure that those using the system are responsible for the costs and fees they generate. As with any radical proposal, it will require vetting and analysis; but at its core it is simple, effective and fair.
I could be wrong; I have been before
Tell me what you think.
Thursday, March 4, 2010
What is Tort Reform???
For 23 years I was a "tort lawyer". When I started law school, I honestly did not know what a "tort" was. I thought it was a French pastry; rather than what I immediately learned was "a civil wrong." But what really is a "tort lawyer" and what really is "tort reform"???
The non-judgmental definition of a "tort lawyer" is: a trial attorney who practices in the civil court system and specializes in civil cases where one party seeks compensation for an injury suffered as a result of an act. Therefore, any lawyer who works within that framework is a tort lawyer. What is more clear to me today than ever before is that the tort law system is nothing but politics in a courtroom with the pretext of impartiality, reasoned judgment and fair results.
I was truly a trial lawyer first: for me which side I was on did not matter. Give me a side and let me go. I defended doctors -- good ones and bad ones-; I represented plaintiffs -- all kinds and colors. I sued doctors; I defended Wal-Mart and Sears. I understood my job to be advocacy and confrontation: cross-examination is the greatest engine ever invented for the discovery of truth and, no argument, I could and still can cross-examine.
What I learned as time passed was: it really didn't matter. At the beginning of my career everyone was in the the "compensate" frame of mind. It was described as the "litigation explosion" or the "tort revolution." We had the California courts giving us the concept of "strict liability" ...(for another day). What I understand now is that it really was something completely different: it was wealth re-distribution sanctioned by a liberal judiciary, underwritten by the insurers and promulgated by the jurors themselves: what was then the voice of the people.
I could go on ad nauseum about the various examples of juries running wild on damages in the name of compensation (although none of you may cite the infamous MacDonald's case as that is NOT an example of a bad jury -- another story for another day). I could also cite the scores of cases where jaded juries scoffed at legitimately injured fellow citizens (a defense verdict in a rear-end collision??) and turned them away from the system designed to compensate them ... with nothing. What we had and now have is a completely unpredictable, unwieldy and ridiculously expensive system that does not work as intended.
In this first essay I will leave the details to further elaboration. My earlier question was: "What is tort reform"? I will tell you first what it is absolutely not. It is not a "medical court". It is not a preliminary screening process for malpractice cases. It is not any tinkering with the existing methods of resolution within the context of the existing rules and procedures.
Do you know that there has been "tort reform" for medical malpractice cases in Massachusetts since the early 1980's. Did you know there has been a preliminary screening "tribunal" system in place since that time? Did you know there have been damages caps in place for verdicts in Massachusetts since that time? Do you know where the loudest screams about the cost of insurance come from..of course: Massachusetts.
So, what is tort reform? Here is an idea that will work: If you use the system, you pay if you lose. It has worked in England and Canada for decades if not centuries; but here is my wrinkle. To answer all those who say, if you impose costs, you shut the doors of the courthouse to those who are less fortunate. No you don't. You allow the lawyer to co-sign on the obligation to pay costs.
What would happen at the outset of a case is the court will convene a costs hearing. It is in essence a "put up or shut up" proceeding. The defendant would have the same obligation: post a bond for costs or pledge assets. If the defendant is insured then this is not an issue. In the case of the plaintiff, the issue is more problematic. Now it is very safe to say that if, for example, the case involves a situation where the plaintiff in a medical malpractice case had the wrong kidney removed..any attorney would be happy to "post bond" for that case. On the other hand, a more tenuous case, involving a plastic surgery gone wrong...well maybe that would be a different issue; but if the lawyer, who stands to make anywhere from 25% to 45% of a verdict, is not willing to stand up and "post bond" then maybe that case really isn't that good a case.
What better way to filter out "frivolous" lawsuits than make the lawyer stand behind the filed claim??? Then what you really do is create a "risk-driven" market for litigation bonds. The lawyers will pool their assets and be required to stand behind what they do. This is true reform; not cosmetics. It would make the users of the system shoulder the cost of using the system as well as the risk. It would immediately relieve the state of a substantial amount of the cost and clogging associated with the personal injury system. If it is personal injury, then the cost of use should also be "personal".
Additionally, if the lawyer's bond is at risk then the negotiations at the "nut-cutting" point of litigation would be far more realistic and also control compensation --and thereby insured-- costs. When a case is in doubt, the value of "pain and suffering" --an intangible damage-- is far less rhetorical and far more practical if the lawyer, betting on an unseen, unselected jury, is also at risk.
I think I have something here. Maybe not.
I have been wrong before; I will be again.
Please tell me what you think...I welcome ideas.
The non-judgmental definition of a "tort lawyer" is: a trial attorney who practices in the civil court system and specializes in civil cases where one party seeks compensation for an injury suffered as a result of an act. Therefore, any lawyer who works within that framework is a tort lawyer. What is more clear to me today than ever before is that the tort law system is nothing but politics in a courtroom with the pretext of impartiality, reasoned judgment and fair results.
I was truly a trial lawyer first: for me which side I was on did not matter. Give me a side and let me go. I defended doctors -- good ones and bad ones-; I represented plaintiffs -- all kinds and colors. I sued doctors; I defended Wal-Mart and Sears. I understood my job to be advocacy and confrontation: cross-examination is the greatest engine ever invented for the discovery of truth and, no argument, I could and still can cross-examine.
What I learned as time passed was: it really didn't matter. At the beginning of my career everyone was in the the "compensate" frame of mind. It was described as the "litigation explosion" or the "tort revolution." We had the California courts giving us the concept of "strict liability" ...(for another day). What I understand now is that it really was something completely different: it was wealth re-distribution sanctioned by a liberal judiciary, underwritten by the insurers and promulgated by the jurors themselves: what was then the voice of the people.
I could go on ad nauseum about the various examples of juries running wild on damages in the name of compensation (although none of you may cite the infamous MacDonald's case as that is NOT an example of a bad jury -- another story for another day). I could also cite the scores of cases where jaded juries scoffed at legitimately injured fellow citizens (a defense verdict in a rear-end collision??) and turned them away from the system designed to compensate them ... with nothing. What we had and now have is a completely unpredictable, unwieldy and ridiculously expensive system that does not work as intended.
In this first essay I will leave the details to further elaboration. My earlier question was: "What is tort reform"? I will tell you first what it is absolutely not. It is not a "medical court". It is not a preliminary screening process for malpractice cases. It is not any tinkering with the existing methods of resolution within the context of the existing rules and procedures.
Do you know that there has been "tort reform" for medical malpractice cases in Massachusetts since the early 1980's. Did you know there has been a preliminary screening "tribunal" system in place since that time? Did you know there have been damages caps in place for verdicts in Massachusetts since that time? Do you know where the loudest screams about the cost of insurance come from..of course: Massachusetts.
So, what is tort reform? Here is an idea that will work: If you use the system, you pay if you lose. It has worked in England and Canada for decades if not centuries; but here is my wrinkle. To answer all those who say, if you impose costs, you shut the doors of the courthouse to those who are less fortunate. No you don't. You allow the lawyer to co-sign on the obligation to pay costs.
What would happen at the outset of a case is the court will convene a costs hearing. It is in essence a "put up or shut up" proceeding. The defendant would have the same obligation: post a bond for costs or pledge assets. If the defendant is insured then this is not an issue. In the case of the plaintiff, the issue is more problematic. Now it is very safe to say that if, for example, the case involves a situation where the plaintiff in a medical malpractice case had the wrong kidney removed..any attorney would be happy to "post bond" for that case. On the other hand, a more tenuous case, involving a plastic surgery gone wrong...well maybe that would be a different issue; but if the lawyer, who stands to make anywhere from 25% to 45% of a verdict, is not willing to stand up and "post bond" then maybe that case really isn't that good a case.
What better way to filter out "frivolous" lawsuits than make the lawyer stand behind the filed claim??? Then what you really do is create a "risk-driven" market for litigation bonds. The lawyers will pool their assets and be required to stand behind what they do. This is true reform; not cosmetics. It would make the users of the system shoulder the cost of using the system as well as the risk. It would immediately relieve the state of a substantial amount of the cost and clogging associated with the personal injury system. If it is personal injury, then the cost of use should also be "personal".
Additionally, if the lawyer's bond is at risk then the negotiations at the "nut-cutting" point of litigation would be far more realistic and also control compensation --and thereby insured-- costs. When a case is in doubt, the value of "pain and suffering" --an intangible damage-- is far less rhetorical and far more practical if the lawyer, betting on an unseen, unselected jury, is also at risk.
I think I have something here. Maybe not.
I have been wrong before; I will be again.
Please tell me what you think...I welcome ideas.
Tuesday, February 9, 2010
Here's what I don't understand. A lot of us, me included, have "cribbed-sheeted". (I have invented a verb for my dramatic purpose.) Now some of us have been caught; some of us have not. But shame on those of us who cannot admit at some point that we have done something like that.
Fine, or as my stepson says "Whatever" (just before he needs a disciplinary discussion behind the woodshed.) What is with the high horse? I cannot believe it, the Princess of the Far North scribbled a crib sheet on her left palm.
Get over it. Good for her. I never thought of that..I was shackled to my I-Phone and my tele-prompter for my cues. But my I-Phone got dropped and my teleprompter fell over...but no one erased my hand.
You know there is something refreshing about a palm crib sheet. I learned how to do it in 8th grade. I was outed by my Physics teacher in 9th grade; shame on me.....
When all is said and done, this is what matters about this really petty, liberally-generated focus on form and not substance:
My words are on my palm. I cannot delete them. I cannot erase them. I stand by them.
Please read my words.
These words I did not need to have written:
This is my country, the land of the home and the free. This is my country and that is all that matters.
I could be wrong; I have been before.
Fine, or as my stepson says "Whatever" (just before he needs a disciplinary discussion behind the woodshed.) What is with the high horse? I cannot believe it, the Princess of the Far North scribbled a crib sheet on her left palm.
Get over it. Good for her. I never thought of that..I was shackled to my I-Phone and my tele-prompter for my cues. But my I-Phone got dropped and my teleprompter fell over...but no one erased my hand.
You know there is something refreshing about a palm crib sheet. I learned how to do it in 8th grade. I was outed by my Physics teacher in 9th grade; shame on me.....
When all is said and done, this is what matters about this really petty, liberally-generated focus on form and not substance:
My words are on my palm. I cannot delete them. I cannot erase them. I stand by them.
Please read my words.
These words I did not need to have written:
This is my country, the land of the home and the free. This is my country and that is all that matters.
I could be wrong; I have been before.
Tuesday, February 2, 2010
Why is Everybody Missing the Real Problem with Fannie and Freddie??
OK..Correct me if I'm wrong (and I am sure you will).
When I was much younger and living in an entirely different world, I applied for a mortgage. As a newly minted member of the legal profession, I had no credit, no references and a small mountain of debt. My earnest and cloying "mortgage facilitator" suggested that I obtain a co-signer or guarantor. Even as a novice barrister, I didn't understand what that entailed. I learned very quickly and, after a chorus of "no", I signed a lease for a most comfortable apartment.
So, do I digress? Perhaps, but I think not. Fast forward to the Fannie Mae and Freddie Mac crisis. What is it really about. Here's what I think.
The folks in Congress, and out front with Barney Frank, decided that I --and you and the rest of us -- were going to guarantee a bunch of mortgages. They set it up so that the Federal Government, in the name of stability, would stand behind the mortgages that FM/FM would "acquire". Now, I am not immediately and unalterably opposed to the feds creating vehicles to stabilize a market -- the bankruptcy courts come to mind. Bankruptcy Courts work because the rules are on the table, published and agreed so that the credit markets and those extending credit know the consequences of a bad debt and can plan accordingly.
Here is where it gets seriously wrong...and I mean wrong. The Feds decided that everyone gets a house...."affordable housing". The banks are strong-armed into rules that demand "100%" lending and then the Feds decide, without asking me, that I will be a guarantor of a bad loan. You say..it is not me that is guaranteeing the loan..it is the government. I have two things to say to that. First, do you think that the 40-60% of value you have lost on the biggest investment of your life -- your residence -- is a sufficient guarantee for that bad loan? Second, the federal government is YOU.
When Barney Frank and his minions vote, they are voting for you. We all forget that Washington is us. And when they pledge our guarantee to FM/FM they pledge each of our names just as if it was the mortgage I looked for in a time when I couldn't get one ....if only I had been on the market thirty years later.
Understand folks..they don't think of you and me...it is an abstract notion when they create rules that ultimately come back to hurt you and me. You cannot create a system in which the government guarantees loans that were guaranteed to be bad loans from their initial application without completely divorcing yourself from the people and from their voice. If you cannot hear the people, their voice is meaningless...
In this two-party system, if the Democrats are deaf and morally bankrupt after having put us on the verge of bankruptcy, then the GOP is the only voice of meaning for the people. It must be the mission of the GOP to give a controlling role to the voice of the people....be it new, be it different...it is still the people's voice.
I could be wrong; I have been before..
When I was much younger and living in an entirely different world, I applied for a mortgage. As a newly minted member of the legal profession, I had no credit, no references and a small mountain of debt. My earnest and cloying "mortgage facilitator" suggested that I obtain a co-signer or guarantor. Even as a novice barrister, I didn't understand what that entailed. I learned very quickly and, after a chorus of "no", I signed a lease for a most comfortable apartment.
So, do I digress? Perhaps, but I think not. Fast forward to the Fannie Mae and Freddie Mac crisis. What is it really about. Here's what I think.
The folks in Congress, and out front with Barney Frank, decided that I --and you and the rest of us -- were going to guarantee a bunch of mortgages. They set it up so that the Federal Government, in the name of stability, would stand behind the mortgages that FM/FM would "acquire". Now, I am not immediately and unalterably opposed to the feds creating vehicles to stabilize a market -- the bankruptcy courts come to mind. Bankruptcy Courts work because the rules are on the table, published and agreed so that the credit markets and those extending credit know the consequences of a bad debt and can plan accordingly.
Here is where it gets seriously wrong...and I mean wrong. The Feds decided that everyone gets a house...."affordable housing". The banks are strong-armed into rules that demand "100%" lending and then the Feds decide, without asking me, that I will be a guarantor of a bad loan. You say..it is not me that is guaranteeing the loan..it is the government. I have two things to say to that. First, do you think that the 40-60% of value you have lost on the biggest investment of your life -- your residence -- is a sufficient guarantee for that bad loan? Second, the federal government is YOU.
When Barney Frank and his minions vote, they are voting for you. We all forget that Washington is us. And when they pledge our guarantee to FM/FM they pledge each of our names just as if it was the mortgage I looked for in a time when I couldn't get one ....if only I had been on the market thirty years later.
Understand folks..they don't think of you and me...it is an abstract notion when they create rules that ultimately come back to hurt you and me. You cannot create a system in which the government guarantees loans that were guaranteed to be bad loans from their initial application without completely divorcing yourself from the people and from their voice. If you cannot hear the people, their voice is meaningless...
In this two-party system, if the Democrats are deaf and morally bankrupt after having put us on the verge of bankruptcy, then the GOP is the only voice of meaning for the people. It must be the mission of the GOP to give a controlling role to the voice of the people....be it new, be it different...it is still the people's voice.
I could be wrong; I have been before..
Wednesday, January 20, 2010
When Did the GOP Become the Voice of the People: Watch Out Scott
Coming of age at the tail end of the Vietnam-era protests and in the context of the anti-establishment protests, especially living in Massachusetts, I was saturated with the sentiment that the GOP was the party of the the elite who drove Cadillacs while sipping champagne served by the chauffeur. I remember vividly my teenage friends across the street, whose father was a staunch Republican (I now remember he was also a small business owner who employed scores of people for decades delivering heating oil and who donated thousand of gallons of fuel to the needy...but that didn't matter then), sipping ginger ale that was labeled "Gold Water" during the end of the 1964 presidential campaign (could there have been a more unfortunate name for a GOP candidate with the possible exception of Silverspoon). There was a palpable dislike for those associated with the GOP. It may have been my environment that perhaps exaggerated the feeling; but I don't think I am too far off.
Of course we also forget that Barry Goldwater was a Major General in the U.S. Army Reserve, a staunch defender of individual rights who absolutely rejected the so-called New-Deal Coalition that perpetuated the Roosevelt-era expansion of government. We forget he was known as "Mr. Conservative." We also forget that he was pilloried by the left as a radical reactionary who was out of touch and out of the mainstream. He was trounced by Johnson in the 1964 election and was marginalized by the left as a wing-nut "libertarian." What we also forget is that his efforts became the foundation upon which Ronald Regan based so much of his ideology and personal positions -- positions which catapulted him to the White House as a consummate outsider. Listen up Scott.
The election in Massachusetts sets up a perfect storm for both parties and for Scott Brown. Since when did a pick-up driving, National Guard serving, direct speaking Republican become a man of the people? Well Scott Brown did in the past ten weeks; but he is simply the right person at the right time, perhaps like Ronald Reagan. The seeds for the wave that brought him to this point were sown by years and terms of Democratic entitlements and imperious behavior. It seems to me that while Democrats were bestowing entitlements on the "people" they somehow decided that they, too were entitled. Entitled to tell us what we needed, what we wanted and what we deserved. More importantly they decided they were entitled to their position of power.
And they squirmed during the Reagan and Bush eras. Tax cuts? Largest peacetime expansion of the economy in history? That meant the people were controlling things; not government. That meant there were winners and losers; that the free market functioned. They argued against strong national defense; against aggressive foreign policy, Yet Germany was freed; Russia disintegrated. After 9/11 our borders were secure -- until this year.
And now after just 12 months to the day, what have we seen? The epitome of entitlement: we need to use our majority to consolidate our power by ransacking the treasury, nationalizing the economy and running up debt while telling the world we are sorry we were once powerful. Every response this administration has taken has involved the annexation of power. Most recently, a teenage moron is almost able to blow up a plane. What to do? Create more government agencies. Cap and Trade? Whether its good policy aside (and its not), more agencies, more regulation. Every power grab alienates the people more and more.
So where does that leave Mr. Brown? In a strange and dangerous position. It is very heady to have accomplished what he has; he and his family should be proud. In a very real way, he has been thrust into the role of Mr. Smith going to Washington...as a man of the people (perhaps not as gullible as the movie character but certainly as untainted). Less than an hour after the Mr. Brown challenged the president to a game of two-on-two basketball, GOP pundits were suggesting the newly-crowned senator as the person to offer the GOP reply to Mr. Obama's state of the union address.
Both parties will and have already started to try to co-opt him. What the GOP and Mr. Brown (and he may already) need to understand and to remember is that this win comes from beyond the GOP base. Only in a state with 45% independents could such a groundswell of non-party generated enthusiasm have occurred in such a short time. Unlike his opponent, Mr. Brown was not a hand-picked party ideologue ready to tow the Pelosi line.
Mr. Brown needs to govern his actions with that in mind and the GOP needs to listen to people who gave him the power to act. This does not preclude bi-partisan cooperation -- the foundation of a two-party system. What it demands is that the effort to move this country forward must again be with the voice of the people in mind. The GOP has to embrace its new and unfamiliar role as that voice and it needs to constantly to remind the Democrats that they have been consistently deaf to that voice -- in the past year and for a very long time.
I could be wrong; I have been before.
Of course we also forget that Barry Goldwater was a Major General in the U.S. Army Reserve, a staunch defender of individual rights who absolutely rejected the so-called New-Deal Coalition that perpetuated the Roosevelt-era expansion of government. We forget he was known as "Mr. Conservative." We also forget that he was pilloried by the left as a radical reactionary who was out of touch and out of the mainstream. He was trounced by Johnson in the 1964 election and was marginalized by the left as a wing-nut "libertarian." What we also forget is that his efforts became the foundation upon which Ronald Regan based so much of his ideology and personal positions -- positions which catapulted him to the White House as a consummate outsider. Listen up Scott.
The election in Massachusetts sets up a perfect storm for both parties and for Scott Brown. Since when did a pick-up driving, National Guard serving, direct speaking Republican become a man of the people? Well Scott Brown did in the past ten weeks; but he is simply the right person at the right time, perhaps like Ronald Reagan. The seeds for the wave that brought him to this point were sown by years and terms of Democratic entitlements and imperious behavior. It seems to me that while Democrats were bestowing entitlements on the "people" they somehow decided that they, too were entitled. Entitled to tell us what we needed, what we wanted and what we deserved. More importantly they decided they were entitled to their position of power.
And they squirmed during the Reagan and Bush eras. Tax cuts? Largest peacetime expansion of the economy in history? That meant the people were controlling things; not government. That meant there were winners and losers; that the free market functioned. They argued against strong national defense; against aggressive foreign policy, Yet Germany was freed; Russia disintegrated. After 9/11 our borders were secure -- until this year.
And now after just 12 months to the day, what have we seen? The epitome of entitlement: we need to use our majority to consolidate our power by ransacking the treasury, nationalizing the economy and running up debt while telling the world we are sorry we were once powerful. Every response this administration has taken has involved the annexation of power. Most recently, a teenage moron is almost able to blow up a plane. What to do? Create more government agencies. Cap and Trade? Whether its good policy aside (and its not), more agencies, more regulation. Every power grab alienates the people more and more.
So where does that leave Mr. Brown? In a strange and dangerous position. It is very heady to have accomplished what he has; he and his family should be proud. In a very real way, he has been thrust into the role of Mr. Smith going to Washington...as a man of the people (perhaps not as gullible as the movie character but certainly as untainted). Less than an hour after the Mr. Brown challenged the president to a game of two-on-two basketball, GOP pundits were suggesting the newly-crowned senator as the person to offer the GOP reply to Mr. Obama's state of the union address.
Both parties will and have already started to try to co-opt him. What the GOP and Mr. Brown (and he may already) need to understand and to remember is that this win comes from beyond the GOP base. Only in a state with 45% independents could such a groundswell of non-party generated enthusiasm have occurred in such a short time. Unlike his opponent, Mr. Brown was not a hand-picked party ideologue ready to tow the Pelosi line.
Mr. Brown needs to govern his actions with that in mind and the GOP needs to listen to people who gave him the power to act. This does not preclude bi-partisan cooperation -- the foundation of a two-party system. What it demands is that the effort to move this country forward must again be with the voice of the people in mind. The GOP has to embrace its new and unfamiliar role as that voice and it needs to constantly to remind the Democrats that they have been consistently deaf to that voice -- in the past year and for a very long time.
I could be wrong; I have been before.
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