U.S. and Iraqi Polls

July 17, 2008

Today the New York Times published an article that seems to say that Iraqis do not favor U.S. troop withdrawal. Toward the end you read that there was an extremely limited sampling of opinions. The Times just published a more scientific poll that says the Iraquis want a withdrawal of U.S. troops by a 2 to 1 margin. This article also fails to mention that the Iraqi parliament, as well as Prime Minister al-Maliki, are calling for withdrawal. (The linked Christian Science Monitor article says that talks are on-going.) By all authority I have been able to find there has been ardent support for withdrawal among Iraqis since at least 2006 and strong support prior to that.

American polls are interesting. A strong majority has favored withdrawal for a long time. Bush’s handling of the invasion and occupation has for some time been viewed disfavorably by a clear majority. Almost 40% of Americans do not understand that McCain is against a timetable for withdrawal. Despite most people disfavoring his approach to the war, most Americans see McCain as the better commander in chief. Early polls on the two candidates are somewhat confusing.


Walls

July 16, 2008

I just read that a group out of the University of Texas recently petitioned the Organizatin of American States to condemn the wall between the U.S. and Mexico. It of course has already been condemned by Mexico and most of Latin America. While the wall can’t help but deter immigration, it’s overall utility is debatable. No one believes that the petition to the OAS will affect the building of the wall. Human rights considerations, and international law and opinion have not played a significant role in determining U.S. policy recently.

Our wall is to be 2000 miles long, as long as the low estimates of the length of the Great Wall of China. (Some estimate the other wall to be three times this length.)

Whatever your position is with respect to the wall, people agree that it is certainly symbolic of our era. It is a metaphor, a symbol, which for many replaces the Statue of Liberty. The welcoming beacon of freedom is replaced in the minds of many people with the blank expanse of the wall, like an extended palm signaling “halt.” For many people outside the United States our country is seen, not as a sanctuary, and champion, for the oppressed, but as a garrison, walled like a Medieval city-state.

Looking back, Bill Clinton’s euphoric descriptions of globalization (one of his favorite terms) seem naive and distant. The purpose of bridging cultures and identifying common interest has been replaced by phrases like “If you are not for us, you are against us,” “bring ’em on,” “we are on a crusade,” and the like. We have turned a blind eye to international opinion, like the balnk stare of the wall.

We have not just invested in walling our country, but in creating a honeycomb of walls within it. Political forces have converted the world’s melting pot into a fragmented society in which cultural identity is preserved in part for defensive purposes. We are becoming a society of gated communities which look out at others with distrust and fear.

Our government has a growing list of citizens identified a suspected terrorists. The number of people on the list has apparently passed one million. That’s about 5 for each thousand adults. If you go to BellSquare on a busy day, there should be maybe ten or twenty “suspected terrorists” among your fellow shoppers. We have built walls around airports, public buildings and public gathering places, access permitted by guards only after inspection.

These walls of course are not just metaphorical. We have by far the biggest prison population in the world. More people are in prison than there are in Phoenix, Arizona. A staggering number of our fellow citizens have been through the criminal justice system in one way or another.  Prison construction and management has been privatized to a large degree and has become a booming industry. It could become a college major in some schools like hotel and motel management.

These are the costs of security, as we see it. The cry of “security!” seems to be in the ascendancy. It’s good though to keep it in context.


Merit System in Washington Chopped Off

July 16, 2008

As you know, if you’ve been reading this a while, there was a bill last session of Washington’s legislature to adopt the merit system for the selection of judges to the Court of Appeals and the State Supreme Court. This is the system advocated diligently by Sandra Day O’Connor to eliminate the influence of deep pockets on judges’ decisions and to assure that the most qualified people are appointed to the bench.

The bill was sponsored by Jay Rodue, a Republican from the 5th District, Sherry Appleton, a Democrat from the 23rd District, Helen Sommers, from the 36th District. Here is a copy of the final form of the bill. The house report explained generally how it would work.

The bill made it to Frank Chopp’s Rules Committee, a death chamber for bills that do not advance the interests of the most powerful lobbies. He predictably killed the bill.

The people who sponsored the bill deserve accolades for wanting to improve our judicial system for the sake of the people here and not any special interest. The members of the House Rules Committee are listed here.

Our legislators need to know that we care about having the best court system that we can muster. I’ll write more when the legislature is in session.


A Little Like a Bee in a Jar

July 15, 2008

The Bush administration fancies itself a bold initiator of action. Here’s a bold move that was swept under the rug. After getting into office and terminating the anti-terror chair as a cabinet position, the Bush administration defied the nay sayers and gave $43 million to the Taliban. Here’s an old article about that, from the Nation. This indeed was a bold policy move, part of the administration’s marginalization of Clinton’s priorities. Sometimes the administration seemed to be motivated more by anti-Clinton sentiment than forethought.


Tort Reform Can’t Muster Enough Signatures to Get on Ballot in Oregon.

July 15, 2008

Tort Reform is an initiative sponsored by largely by insurance companies with two main goals: Blocking access to the courts and reducing awards to people who have been found at trial to have been wronged. In Oregon an initiative fell short of the required number of signatures to get on the fall ballot.

This initiative was a very clever attempt to deprive many of the people who cannot afford a lawsuit from bringing claims by putting limits on contingent fees. The initiative would limit fees to 25% for awards of $25,000 or less and then to 10% of amounts in excess of $25,000. This would effectively deprive many of any opportunity to have a trial because lawyers would not be able to afford many contingency cases.

Here is what is not commonly known. First, contingent fees are most commonly charged in personal injury cases to people who cannot afford a lawsuit. Without a contingent fee, they could not go to court.

States already have limits on what a lawyer can receive as compensation. If a person thinks that a lawyer received too much as a contingency fee, they can ask the bar association to review the fee. Bar associations are rather diligent about this and at least in Washington have the power to reduce the fee but they will not increase it. The bar association does in fact reduce fees it determines were too high.

The purpose of the initiative is to further reduce compensation so as to deter lawyers from taking cases that promise hard work but involve limited damages.

This cap would put the injured person at a severe disadvantage in most lawsuits with insurance companies which routinely pay a great deal more for defense than what the plaintiff’s lawyer could hope to receive. It would tilt the playing field rather dramatically in favor of the insurance company.

I would guess that a fairly routine trial takes at least 200 hours of time for a lawyer. It is not uncommon to invest 500 hours or more on a trial. So for a lawsuit that involved a claim that was $25,000, the lawyer would receive a maximum of about $35 an hour if he or she was successful. If the claim was challenging, perhaps half of that, maybe less. If they lose, then there is no compensation. Meanwhile insurance companies pay their litigators four to eight times that amount (sometimes more than that) on an hourly basis.

In order to cover overhead, personal injury lawyers would have to limit the number of smaller contingent fee cases they took on.  On the face of it, the only segment of society that would benefit by this would be the stock holders of the insurance companies. To the degree that people who cannot afford a lawsuit are denied an opportunity to go to court (this would be most of the middle class), the society as a whole is destabilized.

It would be potentially economically disastrous to take challenging cases that took a lot of time, even if the claim was substantial. On a claim for $1 million the maximum allowed to a lawyer would be about $104, 000. If it took 1000 hours to win, then the lawyer would receive about $100 per hour. This is about half to a third, or less, of what an experienced trial lawyer would charge. It would be enough to cover overhead and leave a profit but it would be devastating to most firms to lose or receive a smaller award. So the economic incentives would not be high for taking on a large challenging case.

Again, the system would work much better and insurance companies would save significant a amount of money if they settled cases promptly instead of being highly adversarial from the beginning. John Ladenburg’s statistics from Pierce County show this quite clearly. (See my entry on June 20.) Instead of trying to create a system that prejudices the rights of injured people, the insurance companies could achieve actually a better result for their bottom line by just investing their efforts in prompt, reasonable settlements. This would have the added benefit of reducing the role of trial lawyers in the system and thereby give more money to the injured person.


Factoring in Experience

July 15, 2008

In considering the candidates, one must consider Obama’s lack of experience in national and international politics. But how much wieght does this carry and how do you evaluate it?

President Bush represents one worst case scenario. As a fledgling president, he came under the control of a small group of people with a minority, highly militaristic view and through him they were able to implement views that were generally regarded as far fetched. In conjunction with that Vice President Cheney filled the vacuum of power created by neophyte president, and assumed primary control of domestic energy policy as well as p.r. responsibilities for the drum beat of war.

The undue influence of the neocons certainly contributed Bush’s rush in the direction exactly opposite to that which he promised. Bushes campaign, if you recall, included an unconditional promise to unite the nation and under no circumstances would he permit us to engage in nation building. Exactly the opposite of course has become the defining character of his presidency.

Predictability of policy is certainly a risk in choosing a president without experience. Clinton with his talk about national health care raised hopes for a liberal administration, but his policies proved to be directly in line with Reagan’s. Actually he succeeded in balancing the budget, a classic conservative goal that has been long abandoned by the Republican Party, at least during Republican presidencies of the past half century or so.

Reagan had no experience but gave what he promised, as did Carter. So I guess that it is fair to say that an inexperienced president creates a greater risk of heading in a direction that could not have been anticipated from his campaign.

Another risk is that a president might panic in a crisis. Despite the fact that most of the presidents we have elected in recent years have had little experience, we have not seen much panic, other than perhaps seeing a president decline to interrupt reading a children’s book when told we were under attack, then disappearing for a day while the vice president ran the country.

Kennedy’s willingness to launch a nuclear war over the Cuban missile crisis may perhaps have been due to a lack of experience. Recent revelations have certainly been shocking. But all in all there has been little evidence of anyone become overwhelmed and panicking while at our country’s helm.

It is interesting to think that Obama with one plus years in the Senate has more national political experience than any first term president since 1968, Nixon’s first term, with the exception of George H. W. Bush.

My conclusion is that, with the caveat that we cannot predict as well what he will do, there is not much risk in choosing a president who has little national political experience.


FISA, Immunity, Pardons, and Luthor Collins

July 11, 2008

The recent discussions about immunity in the context of the FISA bill have stirred up a great deal of frustration among people who have been shocked or disapproving of the Bush administration’s apparent cavalier attitude to complying with the law. This resentment no doubt provides some of the fuel for the populist movement that seems to be carrying Obama along. Both Republicans and Democrats have expressed to me frustration that there is not even any meaningful investigation of the charges. The administration does not have immunity but it does seem to operate with impunity.

Part of the public’s outrage about FISA relates to the appearance of hypocrisy. The same law-and-order people who advocate strong criminal sentencing standards advocate immunity for the corporate officials whose conduct apparently involved violation of constitutional rights on a massive scale. The sense of hypocrisy is heightened by the color and class distinctions between the criminal justice defendants and the corporate miscreants.

This frustration is very deep and involves what appears to be a failure of our system of checks and balances. The Republican Congress during the first six years of the Bush administration is widely seen as having allegiance to party over country or over the citizens of the country. During this time effort seemed to be directed to covering up the regularly occurring scandals. The two years of Democratic control of Congress have not been signifiantly different in terms of rendering people in the executive branch accountable for their transgressions. The FISA bill in granting immunity for illegal domestic surveillance was profoundly disillusioning for many. It went beyond disregarding disreputable behavior to condoning it.

FISA’s defender’s chant “national security” and to my knowledge there is nothing more than this rather empty slogan to support the position, a slogan that I had thought was used so much by the Nixon administration that it would not be heard again in connection with domestic activity. This slogan has also been used to justify the treatment of detainees and has been gradually rejected by the courts. Without anything to back it up it is just a slogan famously used around the world throughout the twentieth century. People need more substance to the claim for it to have traction outside of Congress.

The defenders of FISA point out that the guilty can still be prosecuted for crimes that were committed but few doubt that Bush will pardon everyone before leaving office. He, however, can only pardon for federal crimes and at least in theory any enterprising attorney general could investigate and prosecute under state law for crimes committed against its citizens. I doubt that anyone believes this will happen.

Bush is likely to pardon everyone in his administration, making the investigations promised by Obama unlikely. If McCain is elected he would not conduct investigations at all, at least as far as I know. The only way the Bush could be prevented from pardoning everyone would be for him to be impeached. If he were impeached, he could not grant pardons during the process. There appears to be no chance that this might happen.

Thus it appears that this itch to see criminal conduct exposed, or at least investigated, and punished will go unscratched regardless of the party favored in the next election. This rather sorry state of affairs is not without local precedent.

Civilization came to the Seattle area in the middle of the nineteenth century. Settlers first arrives on Alki, then some came to what is now the downtown area. A few located near the mouth of the Duwamish River between the two camps. Civilization, as everyone knows, requires government and the settlers were quick to elect a commissioner: Luthor Collins, our first governmental official. Two years after his arrival he was arrested for lynching a Native American. His civic leadership may have contributed to the dismissal of the charge. Later, having rooted himself in the administration of local affairs, he lynched two Native Americans and presumably it was his his august stature that prevented charges from being made.


The Exxon Valdez Decision and Punitive Damages

July 9, 2008

Exxon Shipping Co. v. Baker (the Exxon Valdez decision) provides an interesting look at our Supreme Court, particularly since so many of the members were selected by our country’s first administration composed of former oil executives.

The decision derives from the worst environmental disaster in our country’s history, when millions of gallons of oil were leaked into Prince William Sound in Alaska. The oil came from a supertanker (over 900 feet long) whose drunken captain had left the vessel in the hands of an unlicensed third mate who could not negotiate the passage. The ship ran aground on a reef. Wildlife was destroyed, a habitat rendered toxic and all the people who depended on Prince William Sound for their livelihood, including fishermen in Alaska, Washington, as well as elsewhere, were ruined. The devastation was overwhelming. Even now nineteen years later, oil stained gravel and sand lies just below the surface on the shore.

The captain had a history of alcohol abuse and was still intoxicated eleven hours after the incident. Exxon was found by a jury to have acted recklessly, and the jury awarded $5 billion in punitive damages. Exxon appealed, questioning on a number of grounds the punitive damage award.

Before arriving at the Supreme Court, the case was considered by the Ninth Circuit Court of Appeals. That court upheld the jury’s right to award punitive damages, but cut the amount of the punitive damages award in half.

Exxon petitioned the Supreme Court for review hoping to convince it that punitive damages were in appropriate and failing that that even half of the jury’s award was excessive.

Washington’s Attorney General, an ardent tort reform proponent, who campaigned against large jury awards, saw an opportunity for publicity. While actually claiming to his constituents that large jury awards and excessive litigation costs prevented the State of Washington from correcting to the conduct that gave rise to the litigation against the State, he undertook to champion the cause for punitive damages to the Supreme Court. He argued for the right to punitive damages and asked that the $5 billion award be restored.

In a very unusual decision, the Court announced that it was evenly divided on the question of whether punitive damages could be awarded against a corporation under maritime law. The Court said that it would not render a decision on that point, leaving the decision of the Ninth Circuit in place. (With nine members you might wonder how the Court could be evenly divided. Justice Alito recused himself, presumably because of some association with Exxon, creating an even number of justices deciding this case.) In the next few years from two to four of the members of the Court will be replaced and a reconstituted Court could then decide this issue.

The Court, without examining the right to punitive damages under maritime, law chose to consider whether such damages were prohibited by the Clean Water Act and, if not, whether the award was excessive. What is odd about this is that the Court left open the opportunity for it to later decide that there were no punitive damages available under the maritime law, undercutting the entire decision.

This very narrow ruling is becoming a trademark of the new Roberts Court. The new Chief Justice attempts to avoid sweeping decisions and tries to limit them to the facts of the case while seeking to avoid fractious split decisions. In this decision he selected issues that were less divisive than the question of whether punitive damages were available under maritime law.

The Court, after finding the the Clean Water Act did not preempt maritime common law, discussed the roots of punitive damages, tracing it back to English common law, codes from the Middle Ages and even the Code of Hammurabi. The decision quotes from an 18th century American decision where punitive damages were awarded against the Secretary of State for an unlawful search of someone’s papers. (They apparently had different sensibilities then, although maybe not in the case of the Attorney General.)

The Court said that punitive damages were “wildly” accepted by American courts by the middle of the 19th century. At that time they were called “exemplary damages” a more favorable term, and were invoked in cases involving extraordinary wrongdoing. Their purpose was said to be to set an example for the sake of deterence. They were also said to compensate for intangible injuries that were not a part of the legal definition of compensatory damages. The court noted that the concept of compensatory damages has broadened so that this justification no longer applies. Today the Court said that punitive damages serve the purposes of retribution and deterrence and are reserved for outrageous conduct that is recklessly indifferent to the rights of others or otherwise deplorable.

In Nebraska punitive damages are barred entirely. In Washington, Louisiana, New Hampshire and Massachusetts they are permitted only when authorized by statute. (In Washington this nearly amounts to a bar on them as the legislature disfavors this aspect of the common law.) Two states have limited the type of rewards which may be recovered as exemplary damages and several have limited the amounts.

In an interesting and uncharacteristic detour the Court examined the laws of several other countries on the question of punitive damages and found that they were generally subject to tighter control than in American Courts.

The Court rejected the contentions of the tort reformers who claim that punitive damages are becoming extravagant. It stated that neither the amount of the awards nor the percentage of cases with punitive damages awards has increased over time. The Court said that the figures show restraint with respect to this type of award.

The Court though found fault in the lack of predictability of the amount of the awards and the lack of consistency in determining an appropriate amount. It announced that it would create criteria so that this element of damages would be rendered more predictable.

The Court noted that the criminal justice system’s sentencing function has the same purposes as a jury assessing punitive damages: retribution and deterrence. It found it noteworthy that the “indeterminate” sentencing system had been rejected and suggested that it would do the same thing for punitive damages awards, avoiding the “deserts of uncharted discretion.”

The court cited studies showing that the ratio of punitive damage awards to compensatory awards was less than 1:1, meaning that actual damage awards were on average more than the accompanying punitive damage award. Without much more discussion the Court decided that in maritime cases the limit on punitive damages would be the amount of the compensatory award.

Justice Scalia and Thomas separately concurred. Justice Thomas often seems to follow Justice Scalia’s views almost like a shadow. Scalia said that the reasoning here was correct but he disputes cases cited in the opinion that put a constitutional limit on punitive damages.

Justice Stevens dissented from the part of the opinion that imposed a limit on maritime punitive damages. His dissent shows the shallow, if not outright ignorant use of the term “activist judges,” Tort reformers often rant against judges usurping the role of the legislature and attribute that to “liberal judges.” Justice Stevens, sometimes called a liberal justice, opined that it is not the role of the Court to devise a formula to impose on juries. He said that this is a legislative function that ought to be reserved for Congress.

Justice Ginsburg, generally regarded as particularly thoughtful, shared Stevens’ aversion to the Court legislating damage limits. She pointed out that the majority acknowledged that there was no perceived urgency requiring the court to break from the common law tradition. She pointed out that the data that informed the decision showed that the traditional “abuse of discretion” standard by which punitive damages are traditionally reviewed functioned perfectly well. She also pointed out a number of unanswered questions about the decision.

Justice Breyer also filed a dissent, saying that he had no particular problem with the imposition of a ration like the one adopted but that it should not apply in extraordinary cases. He went on to point out the high degree of scrutiny that this award had received at the trial court level and what the Ninth Circuit Court called the “egregious” nature of Exxon’s conduct. As a special case exception he would have sustained the Ninth Circuit Court’s decision.

There are a number of interesting features to this case which I’ll discuss on another occasion. One quick observation. Broadly speaking punitive damages and criminal law address the same sort of conduct, as suggested by the Court in this decision. That is conduct that is deplorable or which recklessly endangers others or their rights. Punitive damages and sentencing have exactly the same purposes, to punish the guilty and to deter such conduct. You would think that people supportive of strong or harsh sentencing standards would support strong or harsh punitive damages standards. It turns out of course that generally speaking the people who support incarceration over rehabilitative purposes in sentencing favor the abolishment of punitive damages. There are racial and class distinctions between the two groups of defendants. Hopefully there is some other explanation for this apparent inconsistency.


County’s Hands Tied on Excessive Forest Clearing

July 9, 2008

RCW 82.02.020 is an example of the ways in which the stong hand of special interest lobbies in Olympia affect folks in Washington. This law says in pertinent part that

no county, city, town, or other municipal corporation shall impose any tax, fee, or charge, either direct or indirect, on the construction or reconstruction of residential buildings, commercial buildings, industrial buildings, or on any other building or building space or appurtenance thereto, or on the development, subdivision, classification, or reclassification of land.

Meanwhile King County adopted its Clearing and Grading Critical Areas Ordinance in 2004 pursuant to the Growth Management Act (RCW 36.70A.060(2)) which required it to adopt regulations to protect its critical assets. Generally speaking the ordinance prohibited clearing more than 50% of rural lots with a number of qualifications and exceptions.

Before adopting this regulation the County undertook a number of studies and consulted with experts to verify that excessive clearing had negative impacts on stream health, wildlife, and critical aquifer recharge areas in the County.

The ordinance was challenged by a property rights groups that contended that the blanket prohibition against clearing was an improper indirect charge under RCW 82.02.020.

The County said that this was not a tax but a justified regulation, presenting 24 journal articles and several experts who identified the harm sought to be avoided and vouched for the efficacy of the regulation in terms of avoiding the harm.

The trial court sided with the County but the Court of Appeals did not. In Citizens Alliance for Property Rights v. Ron Sims

the court held that the bar against excessive clearing was prohibited by statute. The decision seems quite sound to me, relying on well established pro-development case law. Without disregarding precedent, the court could do little else. (Personally I would like to see the court start whittling away at the existing law.)

What is important here, I believe is that local decision regarding the environment, urban sprawl, habitat, and water issues are fairly commonly thwarted by the state legislature which in turn is rather shockingly influenced by special interests, particularly the building industry which pushed through the legislation giving developers a preferred tax status.


Osama Bin Laden and Nostradamus

July 8, 2008

Remember ten years ago? When the price of gas was $11 a barrel? That was one of the things that ticked Osama Bin Laden off. (He of course was in the minority of people who supported the invasion of Iraq, as it would eliminate a sworn enemy, Sadam, destabilize the region and inspire opposition to the U.S. As we know, according to our National Intelligence Estimate these things have come to pass.)

But before the invasion the price of gas irked Bin Laden. When asked what the price should be he responded $144 per barrel. It seems that even this ambition has been realized, as the price is now at Bin Laden’s prescribed level.