Law and Philosophy are Like Oil and Water- They Don't Mix.

For anyone who actually reads this blog, sorry I've not been posting much. I've had a lot of work to do.

I've been working on what's called a memorandum in opposition (MIO) to a motion for summary judgment (MSJ). For all you non lawyers, an MSJ is an attempt to win (or partially win) a case without going to trial. The idea is to convince a judge that the law, or the undisputed facts, entitle you to win with such clarity that the Court will decide that the other side is not entitled to a trial.

We do mostly Plaintiff's work, which means we bring suits against wrongdoers. One thing that frustrates me is that, in the complaints my boss files, he likes to assert every plausible claim (theory of recovery) he can think of and force the other side to get rid of them. When the other side moves to get rid of these claims, as in a MSJ, I have to write a legal memorandum defending the claims as best I can, based on the law and facts.

Trouble is, for some claims, there's no good argument and your client should lose. The law or the facts (or both) are simply against you. Yet, I have to come up with "something" for the memorandum. I am usally able to come up with "something" (not something that will win, mind you, but something that will at least fill the page with a semblance of legal argument). But for me, this process is excruciating.

And I know why. I trained in Philosophy for many years, and the practice of Philosophy ingrains in its devotees a deep adversion to bullshit! But now I'm paid to produce it on demand and I struggle.

Ironic?

Joe H.

The End.

This article provides a pretty good explanation of the origins of current financial crisis. Its suprisingly readable and personal.

Enjoy!

Joe H.

Habeas Corpus

I've been pretty busy the last few days working on a legal memorandum. I didn't have time to post about this when it happened, but its pretty significant.

Last Friday, federal judge Richard Leon ordered the immediate release of five Guantanamo Bay detainees. He reviewed the cases pursuant to a Habeas Corpus petition and found that the government had failed to present any credible evidence justifying their detention as "enemy combatants," even under the government's own definition of "enemy combatant." Judge Leon is a 2002 appointee of George W. Bush and a long time Republican operative. If there was any evidence to be relied upon, he surely would have relied on it. And yet our government repeatedly insisted that they knew these men were terrorists or aspiring terrorists.

Judge Leon was also the judge that initially ruled that these detainees lacked standing to file a Habeas petition, based on the Military Commissions Act passed by Congress in 2006. Judge Leon’s ruling was overturned earlier this year when the U.S. Supreme Court, by a bare 5-4 majority, overturned Section 7 of the Military Commissions Act that stripped the Guantanamo detainees of Habeas protection. The Boumediene decision can be read here for anyone who is interested. The syllabus is only the first eight pages and it will give you the basic facts and the Court's reasoning.

These five men were imprisoned at the Guantanamo facility for seven years without any charges being filed against them. Had it had been up to our 2006 congressional majorities (including a sizable number of Democrats) and Supreme Court Justices Roberts, Alito, Scalia, and Thomas, their cases could never have been reviewed by an independent federal court. They would have remained in Guantanamo indefinitely, at the will and whim of the President, without any legal recourse to challenge their detentions. Just like anyone else that the president, includng any future president, decided was an "enemy combatant."

And now it turns out that the evidence against these men was so thin that a political ally turned federal judge felt compelled to order the men released “forthwith” and to urge the government, in the name of fairness and humanity, not to appeal his decision and thereby delay the detainees' release. Wow!

Thank God for Justice Kennedy. He and the other four “liberal” justices saved the country from tyranny. Actually, they did more than that; they saved the country. They prevented us from changing from a political entity in which every imprisoned person has a constitutional right to challenge the legality of their detention before an independent and impartial tribunal, into a political entity in which the ultimate tyrannical power (the power to imprison) is invested in the executive, checked only by political concerns and the limits of secrecy. A country of the latter sort might still be called the United States of America. But it would not be the same country. It would not be a country that I could take pride in.

And thank God for Obama beating John McCain, who called Boumediene the worst decision in the history of the Supreme Court. I hope the country comes to understand that the Republican crazies and Democratic cowards of 2006-2008 almost sent us over the edge. We definitely need to build greater institutional firewalls to protect the constitution in times of panic and fanaticism.

Joe H.

Fanatics

Let me admit that I can't stop thinking about the judgment of Christians in the U.S. I keep trying to understand why we supported Sarah Palin despite her obvious intellectual and moral shortcomings, and why we continued to support President Bush despite his administration’s authorization of torture.

I’ve considered our well documented propensity for tribalistic loyalty. I’ve also considered our amazing ability to “see what we want to see.” These factors are easy to relate to because all sports fans experience them to varying degrees. Our loyalties and dreams of victory cause us, when a play is particularly close, to witness the events through the lense of our loyalties. “He was out!” “He was safe!” “That was a strike!” “It was ball!” “He caught the ball in bounds!” “No, he didn’t get his foot down!” “Michael Jordan pushed Bryan Russell in game six of the 1998 NBA finals before making his final shot - it shouldn’t have counted and the refs are cheats!

Sorry, I still have issues.

However, most sports fans, even in the heat of intense competition, remain sufficiently objective and dispassionate to acknowledge the obvious instances where the other team should have gotten the call. Only the most rabid fans are incapable of seeing and/or acknowledging the rightness of a call in favor of the other team, when the call is obviously correct.

But it seems to me that it is precisely this sort of fanatic rabidity that has overtaken scores of Christians in this country. Only a rabidly loyal fan can ignore manifest ignorance and monstrous evil in our leaders and continue to lend them support. Only those blinded by loyalty can so vehemently refuse to confront the obvious.

But how did Christians become so frenzied? How did we become so loyal to certain figures that we voted in mass to entrust our nation to an ignorant neophyte, and gave our unyielding political support to a man who authorized monstrosities in our name (and lied about it after it was revealed)?

I have some ideas, which I’ll be developing in future posts. But these questions are worth some reflection.

Joe H.

Torture Democracy

I don't want to sound authoritarian, but I think all Americans owe it to our country to watch this documentary in its entirety.

This is a documentary of our government's implementation of torture as its official policy towards terrorism suspects. The sources are impecable. High level officials within our own government document their observation of torture and their futile attempts to stop it.

The film was made for PBS.

I find it astonishing that evangelicals strongly supported president Bush and his administration even after much of this became known.

Joe H.

Evangelical Judgment

This article by Andrew Sullivan on the vice-presidential candidacy of Sarah Palin is a strikingly honest and brutal indictment of the modern political consciousness in the U.S. When all the facts are faced, it’s a remarkable thing that her candidacy ever happened.

Even more remarkable (and frightening) is the fact that despite our experience with President Bush, over 50 million of our fellow adult citizens were still willing to entrust the presidency to someone so stunningly unqualified. Mrs. Palin’s staggering ignorance, her completely unjustified confidence in her own readiness, her venality, her pathological lying - to the point of repeating lies long after they had been publicly exposed as lies, and her political viciousness (“our opponent sees this country as so flawed that he’s been out palling around with terrorists”) were manifest for all to see. But in the eyes of those 50 + million adult citizens, none of these things disqualified her from being our president.

But most remarkable of all was the fact that Mr. McCain selected Mrs. Palin to excite evangelical voters and Mrs. Palin accomplished this in spades. Don’t get me wrong. I understand her surface appeal. She’s ideologically conservative, physically attractive, and charming. She is also “one of us” and definitely not an “elite.” But evangelical support for Mrs. Palin persisted even after we learned about her record and witnessed her stunning lack of knowledge.

By contrast, a substantial number of evangelicals still refuse to believe that Obama is a Christian.

We need to come to terms with the fact that millions of evangelical Christians will excitedly support even the most manifestly unqualified candidate, and one evidencing a decidedly unchristian character, provided that she identifies herself as a believer and unwaveringly supports a set of conservative moral/legal positions related to human sexuality. We also need to come to terms with the fact that we’ll refuse to support a candidate possessing obviously superior qualifications (at least in terms of knowledge), who repeatedly identifies himself as a Christian and, for the most part, acts like one, unless he shares our moral positions on those same issues.

This is not a good state of affairs.

Joe H.

Forgive and Forget-No Way! Update

The calls for Democrats to resist the impulse to investigate and prosecute Bush administration officials for criminal conduct are already beginning. They key talking point will be "we shouldn't criminalize policy differences."

I agree and propose the following compromise. The Obama administration should publicly refuse to prosecute any policy choices that were not illegal when they were selected. Wait, the country should be magnanimous. The Obama administration should refuse to prosecute any policy choices that were not felonies when they were selected.

Honestly, the fact that anyone has to say that in defense of the rule of law shows how crazy things have become. And consider the insane logic of the "don't criminalize policy differences" argument. You can't prosecute leaders for policies that are not criminal. You can only prosecute leaders for offenses that have already been criminalized. It is, therefore, patently absurd to argue that prosecutions of political leaders "criminalizes policy differences." Any actions for which a political official could be prosecuted are already criminal. We have already deemed them illegitimate policy options.

At any rate, you can read a couple of very good articles on the issue here and here. These guys state the case for the rule of law as well as anyone. I hope the nation listens.

Joe H.

Feeling the Pinch

On a past episode of the Simpsons, I recall the T.V. news anchor Kent Brockman commenting on a Springfield recession as follows: "Its not just philosophy majors anymore, useful people are feeling the pinch!"

I'm looking for a new job right now. Thankfully its not because I got canned (like the last time), but because compensation for Plaintiff's work is too eratic (bordering on non-existent in some years). You might quarrel with who I consider "useful," but for those of you who know me, doesn't it like seem God is toying with me?

But hey, things are a lot worse for a lot of people.

Joe H.

Hit The Road Jack!

Here's someone who knows how to say good bye!

My sentiments exactly.

Joe H.

Forgive and Forget - No Way!

One temptation we should resist with every fiber of our being is the temptation to let the past eight years recede from memory without insisting upon public accountability for Bush administration officials.

I understand that Americans are currently concerned with what seem like more pressing matters. But here's just one reminder of what Bush officials did, in our names, and how they nearly destroyed our constitutional order in seeking to aggrandize executive power. I could provide many more examples.

Fortunately, the U.S. Supreme Court overturned portions of the Military Commissions Act and restored the writ of habeus corpus, and congressional complicity with the assault on our constitutional order appears to have been politically punished. But that's not nearly enough.

Torture needs to be exposed and repudiated. Government lawlessness needs to be exposed and repudiated, officially and publicly. We need to read those secret legal memoranda authorizing "enhanced interrogation techniques" and other executive actions to see the extent to which the administration used the OLC to write its own laws without congressional input or judicial review. We need a full investigation into the politization of the Justice Department. We need a full account of the initial surveillance program that was so patently illegal that the entire leadership of the Justice Department and the FBI threatened to resign in mass unless the program was altered. We need a full account of these and many other matters, and we should demand such an account.

None of this is nice, and its easy to smear those calling for accountability as vindictive. But if we don't do it, we can expect all of this to happen again during the next crisis - perhaps by a more ruthless and competent administration, and one that will be able to cite Bush administration actions as precedent for its own.

Joe H.

Obama Saves Us

Here's a quote from President-elect Obama during his comedy speech to the Al Smith dinner in New York City last month:

"Contrary to the rumors that you've heard, I was not born in a manger. I was actually born on Krypton and sent here by my father, Jor-El, to save the planet earth."

Hey, either way dude. Just get on with it!

There is one area where the Obama's are going to be influential without effort. I predict they're going to subtely rehabilitate the institution of marriage just by their good example. Their mutual affection is genuine and obvious. They see and treat each other as equals. Michelle is a whole (non-stepford) person, but also gracious and charming.

I predict they're going to provide an eight year object lesson on how to do marriage well. And yes, I'm predicting right now that Obama will win a second term. The right fired all of its smears (Moslem, terroist, socialist, radical) in this cycle and still lost by six million votes. None of those accusations will be available in 2012 after Obama has been our president for four years. If he does even moderately well, he's a cinch.

Joe H.

Bloodythirsty Faith?

I found this article this morning on Obama and McCain's discussion of evil with Pastor Rick Warren last August. The author takes the position that Jesus would not support our efforts to "defeat" evil by killing people. He quotes Jesus' words convincingly.

Personally, I've consistently believed that there are some people who are so unreasonable and so dangerous that killing them is the only option, other than allowing them to kill us. But maybe (just maybe) the pacifists have a point for those of us who claim to follow Christ.

Joe

Andrew Sullivan on Obama and the Rule of Law

This is worth reading.

Joe H.

The Flat Tax "Fariness" Hoax

I guess the "redistributor in chief" accusation coming from the McCain campaign is getting to me. It's been a long time since progressive taxation has been attacked as socialist. I guess the gloves are off. So, perhaps its worth examining the flat tax supporters' "fairness" argument.

The fairness argument, in a nutshell, claims that the flat tax treats all tax payers alike, while the progressive tax unfairly burdens high earners in comparison to low earners. Is this correct?

At the risk of sounding dismissive, the answer is "no."

First, with regards to specific levels of wage income, everyone is already taxed at precisely the same rate as everyone else. A person with a taxable (wage) income of $20,000 is taxed at exactly the same rate as a person with a taxable income of $50,000, $100,000 and $500,000, on all the taxable income that they share in common. The first $20,000 of a six or seven figure taxable income is taxed at the same rate as the entire $20,000 of a $20,000 taxable income.

The same is true for every other taxpayer at every other level of income. For every dollar of taxable income that any taxpayer shares with any other, their tax rates are identical. Thus, a flat tax already exists with regards to comparable incomes. Taxpayers are treated equally by the progressive tax rate schedule on all (wage) income they share in common. That is, they are treated equally to the extent that they are equal.

Thus, in reality, flat tax proponents are not urging us to treat "all taxpayers alike." They can't be, for this is something we already do. Flax tax proponents are actually urging us, on grounds of fairness, to tax higher levels of wage income at the same rate as lower levels.

Tricky tricky. :)

The real issue, then, is whether fairness requires us to tax higher levels of income at the same rate as lower levels of income? Does it?

Again, the short answer is "no."

There are at least two arguments suggesting that progressive tax rates are fair in a more compelling sense than the simple "percentage uniformity" that flat tax proponents rely upon. The first concerns the fact that those with higher incomes are benefiting more from our system of cooperation than those with lower incomes. Progressive tax rates simply shift some of the burden of sustaining the system upward, onto those who are benefiting more from it, and off those who are benefiting less.

This "higher benefit/higher ability to pay" conception of fairness, reflected in progressive tax rates, is far more defensible than the pure percentage uniformity conception embodied in a flat tax. After all, if I benefit more from our system of cooperation, how can it be unfair for me to contribute more to its upkeep, when "more" merely refers to a slightly greater percentage of my higher level of benefit?

The second argument concerns the well understood feature of money's "declining marginal utility" ("DMU"). DMU is a fancy term describing the fact that each additional income dollar contributes less to a person's well-being than the previous income dollar, up to a point where additional dollars offer no utility at all. That is, up to a point where "its just another buck."

DMU implies that extracting dollars from those with relatively low incomes harms them more than extracting dollars from those with relatively high incomes. This is because the goods that individuals purchase with non-discretionary income are more important than the goods that individuals purchase with discretionary income, in terms of their (and their family's) well-being.


Thus, in order to balance the (real) disutility that taxes impose on taxpayers, which the Republicans are constantly bemoaning in their worries over the tremendous tax burden on American families, a progressive tax is a necessary condition of fairness. Without a progressive tax, the real disutility of taxpaying falls most heavily on those with the smallest taxable incomes.

And this argument ignores the fact that capital gains, which are the main source of income for the wealthy, are taxed at far lower rates than most wage income.

So give me a break on this "progressive taxation is socialism" crap.

Joe H.

The Flat Tax "Simplicity" Hoax

Taxes have been an issue during the recent weeks of the presidential campaign. For this reason, I want dispel at least one tax myth that has always irritated me. What ever else might be said in its favor, a flat tax is not simpler than a progressive tax.

To see this, the following four definitions will be useful.

Flat Tax: A system taxing all income at the same rate;

Progressive Tax: A system taxing higher levels of income at higher rates;

Pure Tax: A system taxing all income without allowing for exceptions, deductions, and/or credits (unrelated to actual payments);

Impure Tax: A system (1) exempting some income from taxation, (2) allowing deductions to one’s taxable income, and (3) offering tax credits for certain sorts of behavior.

Currently we have an “impure progressive” federal income tax, i.e., we have a tax structure involving exemptions, deductions, and credits in which higher levels of income are taxed at higher rates. However, the complexity of our system arises entirely from its impurities. It arises from our need to factor in the exemptions and deductions to determine our taxable income. Further complexity arises from the need to identify and assert any applicable credits and add them to our prepaid taxes to determine how much tax we have already paid.

To the contrary, no complexity arises out of the progressivity of our tax rates. That is because progressivity is built into the tax schedules. Once we know what our taxable income is, we simply look up our tax liability in the schedule. What could be simpler than that? And once we know how much tax payment we should be credited for (via employer withdrawals and applicable credits), we merely subtract that amount from our total tax liability. Simple Simon!

What flat tax proponents fail to see (or mention) is that a “pure progressive” tax would be just as simple a “pure flat” tax. They argue as if our only option were to institute a pure “flat tax.” But because the flatness contributes nothing to the simplicity, those concerned about simplicity should be indifferent between the “pure progressive” and “pure flat” tax structures.

Of course, they are not indifferent. This suggests that all the talk about the flat tax allowing us to “fill out our tax returns on a post card” is a smokescreen for arguments that are more difficult to defend.

Joe H.