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Pensions and Other Entitlements: Pt. 2 (April 28, 2008)

Posted in Bankruptcy, Congress, Constitution, Courts, Law, Pensions, Social Security on April 28, 2008 by e-commentary.org

Constitutional law in America is neither consistent nor coherent. The United States Bankruptcy Courts may be the only forum to adjust pensions and other obligations. A business can file a petition pursuant to the United States Bankruptcy Code in Title 11 and apply Section 365 to reject pension and other obligations. Many corporations have rejected pension and other obligations for decades and in recent publicized cases. Chapter 9 of the Bankruptcy Code allows a municipality to file a petition in bankruptcy and resort to the relief in Section 365. Orange County, California did it in 1994; Desert Hot Springs, California in 2001; Vallejo, California may do it in 2008; watch San Diego in the next few years.

A separate state of the union is not now afforded an opportunity to file a petition under the Bankruptcy Code even if it is not able to afford to pay its bills. A new chapter of the Bankruptcy Code, Chapter 15, may need to be added allowing a state to utilize the provisions of Section 365. The big public policy development will come when everyone realizes that another new chapter of the Bankruptcy Code, perhaps Chapter 17, may need to be added to allow the United States government itself to file a petition under the Bankruptcy Code to utilize the provisions of Section 365. [See the e-ssay dated January 17, 2005 entitled “America the Bankrupt: Economics 210 in the Land of the Freeway and the Home of the Brave”.]

Using the Bankruptcy Code is problematic at best. In effect, the Congress (a legislative body) would pass legislation to allow a Bankruptcy Court (the judicial branch) to make a decision that Congress may be prevented from making itself by another twig of the judicial branch. Section 365 is binary and only allows a debtor to accept or reject a contract; there is no ready provision to allow a Bankruptcy Court to accept sixty percent (60%) of the pension and other obligations. Where to file the petition is not clear, the Southern District of New York; the Northern District of Alaska, or elsewhere? The Bankruptcy Judge has less discretion under the Bankruptcy Code to recognize the decision of the debtor to accept or reject, although he or she may be unwilling to recognize a decision that could threaten his or her pension.

The unfunded and unfounded promises we have made to each other will stagger those who were never consulted. Or even born. All government entities in the intermediate term will need to dispense with or limit pension and other obligations. Addressing the matter in the Bankruptcy Code and in the Bankruptcy Courts is cumbersome and incomplete, yet the approach more easily overcomes the constitutional infirmities that other courts have mistakenly imposed. At core, as noted previously, the rejection really is not a rejection of pension obligations, it is a refusal to accept obligations the Younger Generation never agreed to undertake nor can reasonably be expected to perform.

Some say: “If we were just informed that our pension and other obligations could disappear or be reduced, we could modify our behavior and decisions now.” What if someone said: “Your pension and other obligations could disappear or be reduced.” Despite their protestations, the populace, even when informed, likely will not modify its behavior and decisions. The answers admittedly are not easy.

Bumper sticker of the week:

There Is No Such Thing As A Free Snack.

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Pensions and Other Entitlements: Pt. 1 (April 14, 2008)

Posted in Bankruptcy, Conflicts of Interest, Law, Pensions, Social Security on April 14, 2008 by e-commentary.org

Today’s adults have “discounted” and now disregard the Bush Wars. After all, the wars are being fought by the children of the underclass and will be paid for by the children of all classes in the future. Everything is very tidy and antiseptic, except that this belief is a delusion. Today’s adults likely will pay for some of the cost of the Crusades.

As a general proposition, the Constitution protects “life,” “liberty,” and “property.” The United States Supreme Court has often recognized: “[p]roperty interests are not created by the Constitution, ‘they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law . . . .’” Cleveland Bd. Of Educ. v. Loudermill, 470 U.S. 532, 538 (1985). There are many adults who believe they have been promised payments in the future for their efforts today. The funds to make the future payments are not being provided today, so there is no binding social contract. The Older Generation offers to provide a pension; the Older Generation accepts the offer; however, if the Older Generation does not fund the promise, there is no legal “consideration” for the contract. The Younger Generation can note simply that they were not a party to the contract and did not make any promises or representations to the Older Generation. The pensions and other obligations are nudum pactum, a naked contract.

These issues wander into the courts. That is where things get curious. An individual takes a judgeship for a variety of reasons—a steady pay check, prestige, power, the possibility of doing good and making a difference, they look good in black, and, of course, the promise of the almighty pension. For that reason, courts have an inherent conflict of interest whenever they are presented with any challenge involving pensions of any kind. Courts often make very public displays of some usually minor or irrelevant conflict of interest, yet on the fundamental economic issues they address cases and protect their economic interests. Most of the courts today have protected pensions in cases before them to protect their own pensions without even obliquely noting in a passing footnote a clear and blatant conflict of interest. They contend that the pension is a binding contract and/or a property right. It is neither.

In Flemming v. Nestor, 363 U.S. 603 (1960), the United States Supreme Court upheld a provision in the Social Security Act of 1935 in which Congress reserved to itself the power to amend and revise the schedule of benefits. The Court held that a social security recipient does not have a property interest in a social security payment. “We must conclude that a person covered by the Act has not such a right in benefit payments as would make every defeasance of ’accrued’ interests violative of the Due Process Clause of the Fifth Amendment.” Id. at 611. Justice Hugo Black in dissent observes that the decision represent an anti-communist bias by the members of the Court. Id. at 628-28. In addition and of more insight, the Justices were not entitled to participate in Social Security, so the decision is not surprising.

Bumper sticker of the week:

Social Security?

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Looking Back and Ahead (December 31, 2007)

Posted in Economics, Law, Politics, Society on December 31, 2007 by e-commentary.org

The Mortgage Meltdown continues unabated. Someone should collect a chronological list of the statements of the economists and businessmen in 2007 who predicted that the Mortgage Meltdown was “no big deal.”

The political pundits have voted. ________________ is the Republican nominee. ________________ is the Democratic nominee. No doubt about it, they proclaim. Someone should collect a chronological list of the prognosticators’ predictions in 2007 and those yet to be made in 2008. What do the tenth-graders say: Faze the Nation; Beat the Press; Almost Broadcasting Company; Faux News; Useless News and World Distort; The Compost, etc.; those crazy kids.

The Neo-Confidence Men (“Neo-Cons” in ordinary parlance) have once again declared “Mission Accomplished” in Iraq. The pundits seem to be bamboozled again. More Americans died in Iraq in 2007 than in any other year. World War III continues unabated. The escalation surge has not advanced any fundamental interests. The cauldron in Iraq and the Middle East continues to roil and boil and percolate. Afghanistan and Pakistan and ________stan are roiling and boiling and percolating.

Someone observed that “’experience’ is simply the name we give to our mistakes.” Now may be the time to call our recent experiences mistakes.

The sports pages are laced with steroids and punctuated with asterisks. Turn off the tv and go biking, hiking, running, living. The writing in the sports pages is still worth reading.

Global climate change/warming is heating up and is the subject of ordinary conversation. Embryonic stem cells may now be available without controversy.

Resolution for 2008. The Republic needs every citizen to commit to a private sector health care initiative. Eat less; exercise more. Exercise your mouth less and your feet more. At least in January.

Prediction for 2008. An ugly, vicious, amusing and expensive political campaign. Something big will happen abroad (Iraq, Iran, Afghanistan, Pakistan, ________stan, Yemen, etc.) in Aug. – Oct. and all bets will be off. Or what is happening at home in the economy will finally become clear to the electorate and command attention.

And Anna Nichole Smith, RIP.

Bumper stickers of the year:

If all economists were laid end to end, they would not reach a conclusion. GBS

If all political pundits were laid end to end, they would not reach a clue.

If all climatologists were laid end to end, they would ___ would not ___ reach a consensus.

Experience is simply the name we give to our mistakes. Oscar Wilde

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Vet’s Day; Slavery And Due Process (November 12, 2007)

Posted in Civil Rights/Civil Liberties, Due Process, Law, Military, Philosophy, Society on November 12, 2007 by e-commentary.org

Men naturally seek to enslave other men. Men do not naturally seek to provide other men with “due process.” Due process requires 1) notice of a proceeding impacting a person’s life, liberty or property, and 2) an opportunity to be heard in good faith by a neutral decision maker applying known and settled rules. “Due process” also suggests the “rule or law” or even “fundamental fairness.” However, it is easier for a hippopotamus to ride a unicycle than it is for a man to give another man something as unnatural as the process he is due.

Governments are instituted among men (and women), among other reasons, to disincline them from doing what is natural (enslave others) and to incline them to do what is unnatural (respect due process). The growing pains of the Republic were painful; the Founders did more to promote slavery than to enshrine due process. Yet they made a path-breaking start in the promising direction. Democracy is not easy. Democracy emerges slowly. The country grew.

Protecting against our worst impulses and advancing our noble ones requires a sword and a plow share. These efforts are undertaken under different names, banners and gonfalons. One of them reads “Duty, Honor and Country” and another “Semper Fi,” among others. Many Americans have died protecting what many do not understand and too many take for granted.

Bumper stickers of the week:

All gave some, some gave all

Not to promote war, but to preserve peace

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The Right To Give Offense (October 1, 2007)

Posted in First Amendment, Iran, Law on October 1, 2007 by e-commentary.org

A wing nut like Ahmadinejad, the President of Iran, is invited to speak at Columbia University. Let him speak. The First Amendment “right to give offense” among other rights does not excuse a fusillade of offensive comments as part of a long-winded introduction. Why would some wing nut like Lee Bollinger, the President of the U, trash the guy in his introduction. A university president at a large, profitable corporate American university is primarily interested in the bottom line, the profitability of the entity, the endowment at the end of the day. Columbia could have run a profit by running a polite conversation. Again, America looks rude, petty, coarse, uncivil, uncivilized, arrogant and intolerant. Again. And again and again.

Bumper sticker of the week:

Love Your Enemies
It Confuses Them

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Any Justice At Justice? (July 30, 2007)

Posted in Law on July 30, 2007 by e-commentary.org

Federal courts in America typically are not in business to dispense justice. Federal courts generally protect and advance the interests of the Justice Department including executive agencies such as the Federal Bureau of Investigation (FBI). Last week is notable because a federal judge in Boston ordered the federal government to pay $101.8 million to make amends for framing four men for a murder they did not commit, the largest sum of money ever awarded to people who were wrongfully convicted.

“It took 30 years to uncover this injustice,” Federal District Judge Nancy Gertner said in announcing her decision. She said the case was about “the framing of innocent men,” adding that “FBI officials allowed their employees up the line to ruin lives.”

And the current head of the FBI, Robert Mueller, appears to be telling the truth to Congress which may get his boss, Attorney Generalissimo Alberto Gonzalez, in trouble for perjury, obstruction of justice and other Republican pastimes.

Bumper sticker of the week:

There is no justice at Justice

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Twisted Justice (July 2, 2007)

Posted in Law, Society on July 2, 2007 by e-commentary.org

The case involving the $54,000,000.00 pair of misplaced pants was resolved. Until the inevitable appeal.

The First Amendment was blue-penciled to protect certain individuals and certain (uncertain?) speech rather than to protect free speech.

The New Republican Party is the party of lawlessness and disorder. And still the party that believes in the credo “spend and spend and spend and spend and spend.”

Stare Decisis is dying — S.Ct. Ideology is now the benchmark.

Equal Justice under Law is wounded — Bush. The Pardon, Part I. First, Bush commutes Libby’s sentence and continues Scooter’s Fifth Amendment rights against self-incrimination and effectively silences him. Second, as he departs on Marine Corps One, Bush pardons him. The pardon is a back door absolution of Bush’s high crimes and misdemeanors. If the sentence really was too long, why did Bush not reduce it to a more appropriate length, say, six months or a year? Bush did not commute the sentence of prisoners wrongly sentenced to death while he was governor of Texas.

Cases to indict Bush, Cheney and Rove could still be brought after January 20, 2009. The statutes of limitations will not have run by then.

Nixon considered pardoning himself before he left office, although he was confident that Ford would do his bidding.

Billy C. did not set any high standard with his sale of indulgences particularly to Marc Rich, the crook usually described as a fugitive financier.

Bumper sticker of the week:

He has refused his Assent to Laws, the most wholesome and necessary for the public good. He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.

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The Supreme Court On Drugs (June 25, 2007)

Posted in Drugs, Law, Society, Supreme Court on June 25, 2007 by e-commentary.org

“This is your Supreme Court. This is your Supreme Court on Drugs.” In Morse v. Frederick, 551 U.S. ___ (2007), some members of the Supreme Court revealed that they are on drugs. The facts in the case are inane. An undisputed adult (over 18 years of age) in Juneau, Alaska raised a vacuous sign to attract attention to him while some parade came through town. How distinctly American. DON’T TREaD ON ME or BONG HiTS FOR JESUS or something like that. What it says isn’t exactly clear. The Jesus reference must mean that it is a protected religious statement. “Big whoop,” was the typical reaction of most of the kids. The school principal reacted by over-reacting. Let the motivated lad experience his 15 seconds (or 1.5 seconds) of fame. Go on with life.

Not in America. Roberts is the fellow who employed a Republican baseball analogy when he bamboozled the Senate Judiciary Committee at his confirmation hearing. He talked about playing the role of an umpire and neutrally calling balls and strikes. He lied. In another decision issued today that involves the rights of the wealthy to spend unlimited amounts of money on elections, Umpire John announced that when the “First Amendment is implicated, the tie goes to the speaker,” Federal Election Comm’n v. Wisconsin Right to Life, Inc., 551 U.S. ___ (2007) (slip op., at 21) and that “when it comes to defining what speech qualifies as the functional equivalent of express advocacy…we give the benefit of the doubt to speech, not censorship.” ( Id. at 29). The tie, if it was even close, should have gone to the speaker in Juneau. Thomas makes some compelling statements about the lack of order, respect and discipline in schools today, but the observations have nothing to do with the case.

The Court expresses solicitude for the kids and their vulnerable adolescent sensitivities. What some of the Supremes are unable to fathom let alone even comprehend is that kids in their teens are especially sensitive to hypocrisy and dishonesty and condescension and arrogance in adults. Hypocrisy and dishonesty are among the very traits that define adulthood in America. The case allowed a few Justices with far too few life experiences to write essays revealing their fears and demons and anxieties. Dope is not good; booze is far, far, far worse. Don’t confuse the issues. It was a simple First Amendment case. Don’t be hypocritical and dishonest and condescending and arrogant. You are not paid by the word. The Ninth Circuit decision could have been upheld in a few paragraphs. The principal should have been afforded qualified immunity under the circumstances; running a school is a thankless task. The Court’s new First Amendment test is two-fold: 1) who is making the expression and 2) what is being expressed. That is not what the Founding Fathers intended.

Bumper sticker of the week:

Celebrate the right to give offense

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A Suit Over A Suit (June 18, 2007)

Posted in Law, Society on June 18, 2007 by e-commentary.org

A suit over a suit. Not by Bobby Bork this time. By an administrative law judge in the District of Columbia who raised an issue in the courts that he should have taken up with his therapist. He brought a much publicized suit over losing not his shirt but his pants. He took the pants to be pressed and they were lost or mislaid. The matter should have been resolved in a few minutes with a few dollars. Something is wrong when the civil legal system cannot resolve matters in a much more just, speedy and inexpensive way. Roy Pearson, the troubled fellow, is likely to do the American thing and appeal.

In the Scooter Libby trail, a dozen individuals allowed to teach at profitable law schools in America were paid handsomely by the Republican Party to say that Scooter is a hip White guy who should be allowed to go on the lecture circuit pending appeal and a pardon by Bush. In his order allowing the boys to share their thoughts, Judge Reggie Walton notes in a footnote:

“It is an impressive show of public service when twelve prominent and distinguished current and former law professors are able to amass their collective wisdom in the course of only several days to provide their legal expertise to the court on behalf of a criminal defendant. The Court trusts that this is a reflection of these eminent academics’ willingness in the future to step to the plate and provide like assistance in cases involving any of the numerous litigants, both in this Court and throughout the courts of this nation, who lack the financial means to fully and properly articulate the merits of their legal positions even in instances where failure to do so could result in monetary penalties, incarceration, or worse. The Court will certainly not hesitate to call for such assistance from these luminaries, as necessary in the interests of justice and equity, whenever similar questions arise in the cases that come before it.”

The Dirty Dozen include our friend Bobby Bork, Alan Dershowitz, Vikram Amar, Randy Barnett, Viet Dinh, Douglas Kmiec, Robert Pushaw, Richard Parker, Gary Lawson, Thomas Merrill, Earl Maltz, and Robert Nagel. They should be appointed to handle the appeal for the Chungs pro bono. However, that is the rub. These boys will say or do anything, but they must be paid. Appoint them anyway and hold them in criminal contempt if they fail to handle the matter.

Bumper sticker of the week:

Get a life

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Et tu, Bobby? (June 11, 2007)

Posted in Law, Society, Supreme Court on June 11, 2007 by e-commentary.org

Et tu, Bobby? Bobby Bork filed a frivolous lawsuit? Tell me it isn’t so. It is so. So hypocritical and dishonest and unseemly. His frivolous lawsuit is even a matter of public record. In print. In black and white. You could look it up. He actually filed a lawsuit in federal court. And demanded to mulct the defendant for punitive damages.

There he was making the big bucks on the lecture circuit discussing the number of frivolous lawsuits filed in America each year. Bork claims in his frivolous lawsuit that when he tried to approach the lectern, he found no stairs to climb onto the dais which was of “unreasonable height.” The sneer quotation marks are his. That’s a no brainier, as they say. If it is unreasonable to act, don’t act unreasonably. Don’t mount the dais. Everything that happens from that time forward is Bob’s fault.

Bork was defeated for the Supreme Court twenty years ago. He is one of the darlings of the Federalist Society which believes that too many frivolous lawsuits are filed each year.

The federal judge handling his case should show Bobby the respect he does not appear to show himself. Put him out of his misery and shame. Dismiss the lawsuit and address serious matters.

Bumper sticker of the week:

Stop Frivolous Lawsuits

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