Brent Nyitray
Fairlington Blade
Let the mutherfuker burn!
jnc4p
Kevin S. Willis
Michigoose
lmsinca
markinaustin
Arcanaut
novahockey
quarterback
ScottC
yellojkthttp://www.freep.com/assets/freep/pdf/C4181508116.PDF
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The Sandusky Indictment
Posted on November 10, 2011 by markinaustin
The Conservative 9th Circuit
Posted on November 8, 2011 by markinaustin
The Supremes are about to hear a wonderful (read: law school exam problem, argue both sides) new search and seizure case. Can police attach a GPS unit to your car for a month at a time without a warrant? The liberal 9th Circuit said “yes”, the leaning conservative DC Circuit said “no.” The case was so well covered by Nina Totenberg this morning that I am laying out the whole NPR report. You non-lawyers may think this one is fun. For an aficionado of the Supremes, like Mike Teng, this case points up how original intent often just does not get us very far with new technology. I tend to think the government position on unreasonable search is stronger here, but I am bothered by the secondary argument about “seizure“, as are many prosecutors, according to NT’s story. If you found a police GPS bug on your car and you removed it, I think you would be within your rights, and not obstructing justice. But does that mean police need a warrant to place it? Is it an unreasonable seizure of your car? Read on.
DoPolice Need Warrants For GPS Tracking Devices?
Yasir Afifi/AP
The Supreme Court considers whether GPS monitoring devices like this one may be affixed to suspects’ cars without a warrant from a judge.
November 8, 2011
The U.S. Supreme Court, an institution steeped in tradition, steps into the turbulent world of new technology Tuesday. At issue before the court is whether police must get a warrant from a judge before they can attach a GPS tracking device to a car so they can monitor a suspect’s every movement for an indefinite period of time.
The case could have enormous implications for privacy rights in the information age.
Police, quite naturally, want to use new technology to get the goods on the bad guys, and citizens, quite naturally, think that when they leave their homes, they still have some zone of personal privacy in their cars. This case presents that clash in vivid terms.
In 2004, a joint FBI-Washington, D.C., Metropolitan Police task force began investigating suspected drug kingpin Antoine Jones. First they got a warrant and wiretapped him, but Jones was careful about how he spoke on the phone. So then they put a GPS tracking device on his car, and for 28 days, every time that car moved, its location was tracked by satellite, with the information sent every 10 seconds to the FBI. The tracking led to Jones’ arrest, plus the seizure of 97 kilos of cocaine and $850,000 at a stash house. Jones was convicted of conspiracy to distribute drugs, but a panel of conservative and liberal judges on the U.S. Court of Appeals in Washington unanimously threw out the conviction because the tracking device had been attached without a warrant. The court said that tracking a car for such a long period without court authorization violates the Fourth Amendment’s ban on unreasonable searches.
The government appealed to the U.S. Supreme Court, contending that no warrant is required when a car is on public roads. And the Supreme Court hears arguments Tuesday in the case.
“It’s critical to understand that this case is not about whether law enforcement can use GPS devices. It’s about whether they should get a warrant,” says lawyer Walter Dellinger, who represents Antoine Jones.
“If the Supreme Court gave a green light” to warrantless GPS tracking, he adds, then “any officer can install any GPS device for any reason on anybody’s car, even if the officer thinks it would be interesting to know where Supreme Court justices go at night when they leave the courthouse. No one would be immune from having a GPS device installed on their vehicles.”
The government, however, contends that the Fourth Amendment only bans warrantless searches of private spaces, like the home, or the interior of a car, or a locked office desk. And the Supreme Court has previously held that searches on public streets — of trash put out for pickup, for instance — do not require a warrant. In addition, the government asserts that the GPS device is just an electronic extension of old-fashioned human surveillance.
Pat Rowan, a former federal prosecutor and assistant attorney general in the Bush administration, supports that view. “There’s no Fourth Amendment implication for what a person is doing out in the public space, whether they’re walking down the street and being observed or whether they’re driving down the street and being observed,” he says.
Rowan concedes that everyone has what he calls “an instinctive reaction” that warrantless GPS tracking goes too far. But, he adds, “you are talking about a very clear line that the Supreme Court has laid down over a very long time, that what the police can observe in public, the individual doesn’t have a reasonable expectation of privacy in. And this is the functional equivalent of having the police do a very effective covert surveillance of an individual over a long period of time.”
Rowan does say as a practical matter that it would be next to impossible to conduct surveillance for a month without being detected. That’s why the GPS is a game changer and, as Rowan puts it, a “terrific boon” for police. So why not get a warrant first? Because to get a warrant, police have to show they have probable cause to believe a crime is occurring or has occurred. And the government says GPS tracking is particularly useful at the early stages of an investigation — before probable cause can be established. “You have a lead against a person, but it’s not corroborated,” says Rowan. “You don’t know what they’re up to. This is a low-cost device that would allow the FBI or any law enforcement agency to gather a great deal of information about their movements without having to go to a judge and justify their investigation.”
That’s exactly the point, counters Dellinger, the defendant’s lawyer. “The government’s position is that any law enforcement officer, in his completely unfettered discretion, can choose to put this device on anyone’s car and track what medical appointments you go to, what religious groups you meet with, what political activities you drive to. This is really an extraordinary undertaking and one where the critical protection would be that a neutral magistrate would approve in advance whether there is actually some probable cause to believe someone has committed a crime before you install a GPS device,” he says.
Dellinger has a second argument, not addressed by the appeals court, but that is before the Supreme Court. The Fourth Amendment to the Constitution bans not only unreasonable searches, but also seizures of a property. He argues that placing the GPS device on the exterior of Jones’ car interfered with Jones’ right to exclude others from using his car, and that planting the device constituted a trespass on Jones’ property. That argument does appeal to former Assistant Attorney General Rowan, who opines that “it just doesn’t sound right” that there is no expectation of privacy when a device is covertly affixed to a car.
Indeed, an unscientific sampling of prosecutors shows a real hesitation about how far to push the envelope with GPS devices.
David Kelley, the former U.S. attorney in New York, who spent nearly 20 years as a federal prosecutor, says he always assumed that a warrant was needed for a long-term tracking device. “The four corners of the car is yours,” he contends. “And you have a reasonable expectation of privacy in that.”
Kelley concedes that requiring a warrant will mean some bad guys get away. “Tough luck,” he says. “Go find another way to get the guy. And if you can’t get probable cause, you know what? Maybe you have no business getting into that car to put in that device.”
While today’s case involves GPS devices, it could have enormous repercussions for other devices in the information age. What about cameras that photograph people on public streets? What about cellphones that can be tracked whenever they are on?
Defense attorney Dellinger maintains those are different: The cameras are stationary, and the cellphones can be turned off.
The Supreme Court is usually reluctant to rule boldly on matters of new technology. It has learned, the hard way, that the reach of new technology is hard to predict. In the 1920s, when law enforcement began wiretapping suspects, the court ruled that no warrant was required.
Nearly four decades later, in 1967, the court overruled that decision and said a warrant is required.
The court’s only ruling on any sort of a car tracking device was in 1983. In that case, the court approved the placement, without a warrant, of a beeper in a large container that suspects put in their car. Police then followed the sound of the beeper for a single day. The court, however, specifically left open the question of whether any longer-term tracking device would require a warrant.
In recent years, the lower courts have split on the question.
In Washington, D.C., Judge Douglas Ginsburg, writing for a unanimous appeals court panel, said a warrant was required in the Jones case because of its intrusiveness. “A person who knows all of another’s travels can deduce whether he is a weekly churchgoer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups.”
The likelihood that police could conduct such a monthlong, 24/7 surveillance by just watching and following the suspect, he said, is “nil.”
When the full nine-member appeals court declined to review the panel’s decision, Chief Judge David Sentelle dissented. “A person’s reasonable expectation of privacy while traveling on public highways is zero,” he said, and “the sum of an infinite number of zero-value parts is zero.”
That dissenting view prevailed on the opposite coast when the Ninth Circuit Court of Appeals, based in San Francisco, ruled that no warrant is required in GPS cases. When the court declined to reconsider its ruling, Chief Judge Alex Kozinski, a native of communist Romania who immigrated to the United States with his parents in 1962 when he was 12, dissented. “There is something creepy and un-American about such clandestine and underhanded behavior,” he wrote of the warrantless placing of GPS tracking devices. “To those of us who have lived under a totalitarian regime, there is an eerie feeling of deja vu.”
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Musing on the Free Use of the Word "Hypocrisy"
Posted on November 8, 2011 by markinaustin
Hypocrisy is the state of pretending to have virtues, moral or religious beliefs, principles, etc., that one does not actually have, according to wiki.
Greg Sargent, at PL, could not understand why conservatives would call Ms. Warren “hypocritical”. He wrote:
“Ta-Nehisi Coates skewers the latest conservative attack on Elizabeth Warren: That her own personal wealth somehow makes it hypocritical to seek higher taxes on the wealthy , i.e., on herself.
Not clear how it’s ‘hypocritical,’ if Warren is also agreeing to pay the higher tax rates.“
In this instance, Mr. Sargent understands that a prospective legislator who can support legislation against her monetary interest is serving, in her mind, a greater good, her perception of the public good, as opposed to her own.
However, he could not understand the same principle when Ms. Bachmann supported repeal of agricultural subsidies, against her monetary interest. When I criticized his reasoning then, a crowd of commenters chimed in that I did not understand “hypocrisy”, whose name was “Bachmann”.
Yes, I tried dictionary definitions and many examples. I did not read PL closely enough to recall if anyone commented in agreement, but I never saw it.
So when QB explained at PL why Ms. Warren could be called a hypocrite [she should voluntarily pay more taxes if she thinks taxes should be higher], I thought it would be a good time to discuss “hypocrisy” and what it means, among adults, here.
In my view, there is no perfect or absolutely correct formulation of either revenue expenditure or of taxation. There could be evil formulations, but assume with me that they are outside the bounds of this discussion. Thus I can support higher taxation as a goal or lower expenditure as a goal, or vice versa, especially when it will be to my monetary detriment to do so, without hypocrisy. By contrast, in my view, marital fidelity is an oath I took seriously, in front of God and everyone, and were I to visit prostitutes I would be a hypocrite. Warren Buffett is not a hypocrite for supporting higher taxes, and John McCain is not a hypocrite for attacking wasteful defense contracts, and Ms. Bachmann is not a hypocrite for opposing ag subsidies she receives, but Sen. Vitter and the former NY AG are hypocrites. Period.
If we extend the definition of hypocrisy beyond the moral and religious bounds to include anyone who votes against her personal monetary interest we will have defined selfless legislating as out of bounds, and we would be begging for all legislators to vote only their personal monetary interests. Is that not obvious?
Filed under: Uncategorized | 187 Comments »
The Concept or the Leader? The Substance or the Process?
Posted on November 5, 2011 by markinaustin
Occasionally I read a story like THIS.
First, I find these success stories very cheering. Whether they are about schools, or entrepreneurs, or business organizations, or a governmental program, or charitable efforts, when a comet lights up the firmament I applaud.
Then I wonder. Was it the idea, itself? Was it the motivation from the leader? Was it the substance of what was done or the process by which it was assembled?
AND WHY CAN’T THIS RESULT BE REPLICATED?
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My chili recipe for Okiegirl (and y’all)
Posted on November 1, 2011 by markinaustin
Step 1
2 lbs – “chili grind” beef chuck
2 tsp – cooking oil/olive oil + “pam”
1 tbsp – Wick Fowler 2 Alarm chili powder
2 tsp – chopped garlic
After browning meat in big skillet [use a little oil and pam], put the browned meat into a three quart heavy saucepan, add the remaining ingredients and simmer [10 min.] . Simmering is done on low-medium heat on most stovetops.
Prepare Step 2 during the 10 minute simmer.
Step 2
1 – 8 oz can of tomato sauce or home prepared sauce
1 – big can of beef broth or real beef broth
1/4 cup chopped sweet yellow onion Texas A&M1015Y or [Granex (Vidalia, Maui Maui or NoonDay)]
1 tsp – chopped garlic
8 oz – bottled or distilled or filtered water
1 tbsp – WF 2 Alarm chili powder
2 – serrano peppers
1/2 tsp – salt
Combine seasonings except the serrano peppers and add to beef mixture. Float the 2 serrano peppers on top of the mixture. Bring to a boil and hold for 3 minutes, reduce heat and simmer for 1 hour. Then remove the floating serrano peppers.
Taste the mixture after an hour.
Correction to your personal taste stage!
Have handy:
a little bit of chopped onion, a little bit of chopped garlic, more 2 Alarm chili powder, red pepper, a little cumin, salt, and [optionally] a little bit of brown sugar. Also more bottled water, of course. I personally never use the sugar, but a little bit is ok for most people. Do not overdo sugar or you will make a hopeless, disgusting mess.
GUESS HOW MUCH OF EACH YOU NEED TO CORRECT THE SEASONING AND USE LESS THAN YOUR GUESS FOR EACH.
THIS will be your first correction simmer.
If necessary do a second “correction to your personal taste stage”.
Simmer for 10 minutes.
Let stand for 40 minutes
Filed under: Bites and Pieces, food, recipes, Uncategorized | 4 Comments »
Visually Focusing on the Job of the "Select Committee"
Posted on October 28, 2011 by markinaustin
I think it is important to have these graphics in mind when we talk about seizing the initiative on budget. I believe the various commissions that made recommendations had these graphics in mind. I believe BHO had these in mind when he made the decision to go after health care costs. I believe that as long as hospital ERs must take anyone Medicaid will be the single biggest red ink pool in our economy. I believe that SS OA&S can be self sustaining with modest tweaking, but Medicare is a different story [and why I so opposed single payer]. I believe that we can manage the budget in the long run if we can deal with med costs. I believe that even if we deal with med costs we must increase revenue. I think the method for increasing revenue is to go to consumption, VAT, and transaction taxes as a replacement for income and estate taxes while retaining excise and “sin” taxes, and tariffs where appropriate. Again, a very small [less than one half of one per cent] transaction tax on every transaction raises huge amounts of money because there are so many transactions, and so much more transactional volume than net income volume. One side effect of the transaction tax is that it would kill day trading, and that would not break my heart, either.
The commissions, and the Select Committee, did/do not have the luxury of immediately moving to consumption and transaction taxation, so in their reality, individual and corporate preferences/loopholes must be closed and nothing less than return to Clinton rates on everyone will make a dent. And they must find as much to cut as they can, but my optimism is exceeded by my dubiety in that respect. They seem to have about $200B/yr in cuts in mind, both Ds and Rs, so that is about it. I hasten to add that personal deductions [tax expenditures, or preferences, or loopholes] do leave @ $1 trillion/yr. in the pockets of homeowners and donors. We will not get rid of the entire mortgage deduction and the charitable deduction this month, either, and I do not know that we should.
And as to health care, I would not propose to let the needy who cannot pay the bill go without care, either. So I see the problem and don’t think I can solve it under present constraints, including ones I impose on myself.
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COUNTERINTUITIVE (for me)
Posted on October 26, 2011 by markinaustin
I have strongly believed, without more evidence than what I see in my life as a lawyer representing small businesses, and the generally repeated “accepted knowledge” that small biz, and especially NEW biz, are the engines of growth. I was thus struck dumb, deaf, and blind by the following article, which may be behind the NYT paywall for you.
It is deceptively titled, in that we know that consumer spending is the biggest component of the GDP. What struck me is the assertion that private investment is not historically necessary for growth; that growth is a function of gummint spending and consumer debt. Which of his assertions are based on misstatements of fact? Which are correlated to facts that are irrelevant to his conclusions? Or is this the new wisdom? I have provided emphasis to the central factual allegations.
It’s Consumer Spending, Stupid
By JAMES LIVINGSTON
AS an economic historian who has been studying American capitalism for 35 years, I’m going to let you in on the best-kept secret of the last century: private investment — that is, using business profits to increase productivity and output — doesn’t actually drive economic growth. Consumer debt and government spending do. Private investment isn’t even necessary to promote growth.
This is, to put it mildly, a controversial claim. Economists will tell you that private business investment causes growth because it pays for the new plant or equipment that creates jobs, improves labor productivity and increases workers’ incomes. As a result, you’ll hear politicians insisting that more incentives for private investors — lower taxes on corporate profits — will lead to faster and better-balanced growth.
The general public seems to agree. According to a New York Times/CBS News poll in May, a majority of Americans believe that increased corporate taxes “would discourage American companies from creating jobs.”
But history shows that this is wrong.
Between 1900 and 2000, real gross domestic product per capita (the output of goods and services per person) grew more than 600 percent. Meanwhile, net business investment declined 70 percent as a share of G.D.P. What’s more, in 1900 almost all investment came from the private sector — from companies, not from government — whereas in 2000, most investment was either from government spending (out of tax revenues) or “residential investment,” which means consumer spending on housing, rather than business expenditure on plants, equipment and labor.
In other words, over the course of the last century, net business investment atrophied while G.D.P. per capita increased spectacularly. And the source of that growth? Increased consumer spending, coupled with and amplified by government outlays.
The architects of the Reagan revolution tried to reverse these trends as a cure for the stagflation of the 1970s, but couldn’t. In fact, private or business investment kept declining in the ’80s and after. Peter G. Peterson, a former commerce secretary, complained that real growth after 1982 — after President Ronald Reagan cut corporate tax rates — coincided with “by far the weakest net investment effort in our postwar history.”
President George W. Bush’s tax cuts had similar effects between 2001 and 2007: real growth in the absence of new investment. According to the Organization for Economic Cooperation and Development, retained corporate earnings that remain uninvested are now close to 8 percent of G.D.P., a staggering sum in view of the unemployment crisis we face.
So corporate profits do not drive economic growth — they’re just restless sums of surplus capital, ready to flood speculative markets at home and abroad. In the 1920s, they inflated the stock market bubble, and then caused the Great Crash. Since the Reagan revolution, these superfluous profits have fed corporate mergers and takeovers, driven the dot-com craze, financed the “shadow banking” system of hedge funds and securitized investment vehicles, fueled monetary meltdowns in every hemisphere and inflated the housing bubble.
Why, then, do so many Americans support cutting taxes on corporate profits while insisting that thrift is the cure for what ails the rest of us, as individuals and a nation? Why have the 99 percent looked to the 1 percent for leadership when it comes to our economic future?
A big part of the problem is that we doubt the moral worth of consumer culture. Like the abstemious ant who scolds the feckless grasshopper as winter approaches, we think that saving is the right thing to do. Even as we shop with abandon, we feel that if only we could contain our unruly desires, we’d be committing ourselves to a better future. But we’re wrong.
Consumer spending is not only the key to economic recovery in the short term; it’s also necessary for balanced growth in the long term. If our goal is to repair our damaged economy, we should bank on consumer culture — and that entails a redistribution of income away from profits toward wages, enabled by tax policy and enforced by government spending. (The increased trade deficit that might result should not deter us, since a large portion of manufactured imports come from American-owned multinational corporations that operate overseas.)
We don’t need the traders and the C.E.O.’s and the analysts — the 1 percent — to collect and manage our savings. Instead, we consumers need to save less and spend more in the name of a better future. We don’t need to silence the ant, but we’d better start listening to the grasshopper.
Filed under: Uncategorized | 53 Comments »
A Labor Law Case the DC Circuit got Very Wrong
Posted on October 25, 2011 by markinaustin
In IUOE, Local 513 v. NLRB, 635 F.3d 1233, the Court stated the facts as follows:
Overton, one morning, noticed that a piece of machinery was not properly deployed (an outrigger was not fully extended), which was a safety violation. Ozark’s safety rules — which are incorporated into the National Maintenance Agreement — oblige any employee to report to a supervisor safety violations. Indeed, an employee who does not do so is subject to discipline. Overton did report the safety violation [***3] and sought to determine who was responsible. After an investigation, another employee and Local 513 member was suspended for three days.
That led the union’s business agent to file charges against Overton for gross disloyalty and conduct unbecoming a union member. (Apparently the union also objected to Overton’s desire to bring in other experienced operating engineers rather than train the union’s members.) The union fined Overton $2,500, which prompted Ozark to file an unfair labor practice charge against the union. The Board’s general counsel issued a complaint alleging that the union violated section 8(b)(1)(A). HN1That section precludes a union from “restrain[ing] or coerc[ing]” an employee in the exercise of his section 7 rights, with the proviso that a union may continue to “prescribe its own rules with respect to the acquisition or retention of membership therein.” 29 U.S.C. § 158(b)(1)(A). And section 7 protects an employee’s right to “to engage in . . . concerted activities” [or] “. . . to refrain from . . . such.” Id. § 157.
****
From this background, the case proceeded not on section 7, but on 8(b)(1)(A) grounds. The NLRB has held for thirty years that a union violates that provision if a union disciplines an employee member for reporting a safety violation, which he has a duty to report. The DC Court says that without tying this to section 7 rights the NLRB cannot keep a union from disciplining a member for reporting a safety violation he is under a valid duty to report.
We are thus on the brink of creating a union workplace where an individual employee dare not report a safety violation he is under a duty to report, save through the channel of his union foreman. I think this is messy and bad, and may take the Supremes to reverse.
Filed under: Uncategorized | 15 Comments »
Odd State of the Law, Rx Drug Edition
Posted on October 12, 2011 by markinaustin
It is currently the state of the law that if you think you were injured by a brand name Rx you can sue, claiming failure to warn of the consequences absent a label warning, but if you think you were injured by a generic Rx you cannot sue, claiming failure to warn absent a label warning.
In 2009, the Supremes decided Wyeth v. Levine, 6-3. It held that the approval of the label by the FDA does not immunize the drug company from failure to warn, basically because drug companies can provide more info than FDA approves.
In June, the Supremes decided Pliva v. Mensing, 5-4. The Hatch-Waxman Amendments allow generics to gain FDA approval if they are equal to brand named drugs. FDA regs state that because the generic’s approval is based on the listed drug’s approval, its “labeling must be the same”. The majority said that therefore, unlike brand name drugs, generics can not change their warnings. Thus “failure to warn” cases against generics are precluded by the generics’ duty to a fixed label, under federal law.
The opinion recognizes the oddity. It says that this makes no sense to the plaintiff, who would have had a lawsuit if she had been prescribed the named brand. It also says it is up to Congress not to make unusual and bizarre laws.
On its face, it is an odd result dictated by judicial restraint, in both cases. However, legal critics say the majority overlooked the fact that the generic maker can ask FDA for permission to upgrade the warning label. Sotomayor seized on this in her dissent calling it a “dilution of the impossibility standard.” Another criticism is that if Congress intended for brand name drugs to be liable for failure to warn, then Congress would have had to affirmatively state that this rule did not apply to generics in H-W. A final criticism is that the whole case relies on pre-emption of state tort law by the federal regulation. Sotomayor addressed that in her dissent, saying that H-W did nothing to address preemption and thus the 2009 case should be seen as controlling on that issue.
Kennedy voted with the majority both times but did not write.
These cases are in QB’s area, not mine, and I look forward to his comments. I also want to know from NoVaH if there is an effort to get Congress to clarify. You would think the industry had an interest here, but the interest is obviously divided between the brand names and the generics.
I know Mike and ‘goose probably have some good points to offer. But all are welcome to fill my insight gaps, here.
Filed under: Uncategorized | 14 Comments »
HERE WE GO AGAIN…
Posted on October 11, 2011 by markinaustin
What if European banks crumble? Do we have the strength to deal with the repercussions? Probably not, says Simon Johnson.
First, the resolution authority under Dodd-Frank is purely domestic — there is no cross-border dimension.
Second, it has never been clear that any government agency would be willing to use such resolution powers preemptively — before losses grow so large that they threaten to rock the macroeconomy.
Third, who would lose money in any potential liquidation? The fundamental premise of the resolution authority is that some creditors could face losses, but they would be imposed in an orderly and predictable manner to avoid undermining confidence and destabilizing the financial system. Any such thinking today seems far-fetched.
Good bedtime read and fodder for our resident banker!
Filed under: Uncategorized | 12 Comments »
All Things in Moderation 