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Are Courts Irrelevant? Are Courts Illegitimate? (October 3, 2011)

Posted in Courts, First Monday In October, Law, Movie Reference, Pensions, Supreme Court on October 3, 2011 by e-commentary.org

. . .

a “The Supremes open the doors today.”

b “Didn’t His Excellency Chief Justice John G. Roberts close the doors to the Supreme Court years ago.”

a “He did. They will let themselves in to resume their part-time jobs receiving full-time pay and lifetime tenure via a side door, the service entrance if you will.”

b “That is the gig of a lifetime.”

a “The Supremes have not only closed the doors to the Court, they are closing the doors on the American dream.”

. . .

a “Hard to dispute that courts exist to incarcerate the underclass and to insulate the ruling class from responsibility. That isn’t all bad, I guess. Seems to depend on whether you have class.”

b “Courts exist to give the pretence of the peaceful resolution of disputes and thereby to keep the masses from rioting.”

. . .

a “Rating the characteristic judicial attributes is a close call. Some days it is arrogance, other days it is anger. It is always a close competition – anger, arrogance, arrogance, anger.”

b “I have endured many a nasty temper but few a calm judicial temperament. Nothing will ruin a morning like appearing before a judge who is mired in a sterile marriage and fulminating over a fertile daughter. He can use the bench as a bully pulpit for his undigested anger.”

a “Or she for hers.”

b “Or she for hers. Some of these cats are as angry as a fer-de-lance with a hangnail.”

. . .

a “Some days the judges sport a sourcaustic attitude, other days a condescending tone. It is always a close competition – sourcaustic, condescension, sourcaustic, condescension.”

b “I have collected court decisions in a file over the last few years. The ‘Festschrift of Fear and Anger’ is in galley proofs.”

. . .

a “We equip police with batons and judges with gavels. Both are used to beat. There must be something in the fabric of the black moo-moo that transforms a person on the bench.”

b “With increasingly few exceptions, judges are little more than tedious technicians and boorish bureaucrats reaching tendentious decisions.”

a “Respect is an admixture of admiration and fear. I don’t admire our judges; I do fear them.”

b “They are not serving a useful function, yet they consume tremendous resources and waste a tremendous opportunity. I have increasingly less use for them, yet they are drawing a regular paycheck and will draw a pension and do everything while on the bench to protect their paycheck and pension.”

. . .

a “The wrong lawyers are securing judgeships. The wrong persons are obtaining political office. Any attempt to reform the legal system must rely on the same raw material. There is not much there.”

b “Nothing like what I thought in law school.”

a “What’s happened?”

. . .

[See the “e-ssay” titled “On Respect, Fear, Admiration and Irreverence (December 17, 2007)” and the “e-ssay” titled “Congress Should Increase Congressional and Judicial Pay; Shareholders Should Reduce CEO/CFO/COO Pay (March 5, 2007)” written at a time when the courts seemed to appear to offer the possibility of being part of the solution.]

Bumper stickers of the week:

Judge = FePb

Laws are not etched in stone today, they are concocted with an Etch A Sketch (R)

“. . . And Justice For All” movie with Al Pacino (1979)

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From e-con-omics to eco-nomics? (August 1, 2011)

Posted in Bankruptcy, China, Economics, Economics Nobel, Education, Energy, Environment, Pensions, Schooling on August 1, 2011 by e-commentary.org

. . .

( “The Keynesians are using a screwdriver to hammer a nail. The monetarists are using a hammer to drive a screw. The wrong tool is selected because the challenge is not understood.”

) “So we are screwed and hammered?”

( “E-con-omists do not even recall the central tenet of economics. Resources are scarce. Not enough resources are available today to provide the growth needed to provide everyone with a first-world life style.”

) “You know that observation is politically unacceptable.”

( “The department of e-con-omics today should be merged with the department of religion. The e-con-omists are marketing voodoo.”

) “What about the department of psychology? Or the department of environmental sciences.”

( “What about creating a department of 3Es – energy, economics, and the environment? What about adding a class in Mega-eco-nomics to the traditional classes in Microeconomics and Macroeconomics?”

. . .

( “Economics is laden with rich irony. The use of the word ‘gross’ in ‘gross domestic product.’ The products and services often are gross.”

) “Look at the felicitous term ‘trickle down’ in ‘trickle down economic policies.’ The theory posits that all the money should be given to the wealthy and very little will trickle down to the populace. Should anyone be surprised that very little trickles down to the populace.”

( “And the Laffer Curve was worth a laugh but not much more.”

) “We need more eco-nomists who recognize and accommodate limits to growth even though the realization is anathema in today’s political climate.”

( “Very few are going to go quietly.”

. . .

Bumper stickers of the week:

You are stronger than the tool; the tool is smarter than you are.

Central Falls falls

The Senate confirmed Gary Locke as Ambassador to China by unanimous consent on July 27, 2011

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Officious B-crats. Made In The U.S.A. (June 6, 2011)

Posted in Bureaucracy, Courts, Movie Reference, Pensions, Pogo Plight, Society on June 6, 2011 by e-commentary.org

. . .

[0911 hours]

B “You shall punch two holes at the top of the pleading.”

C “What if you receive a pleading without two holes punched at the top of the pleading?”

B “We reject it.”

C “Even if it is a Motion For Stay Of Execution?”

B “Don’t care if it’s not right. Rules are rules.”

C “I’m not talking about a stay of execution of a foreclose of a debt involving a fork lift, I’m talking about a stay of execution of a person.”

B “Don’t care if it’s not right. Rules are rules. That is why they are rules. Rules rule. Two holes punched at the top of the pleading.”

. . .

[0937 hours]

C “Do you know where the Recorder’s Office is located?”

B “Do I look like a receptionist? No, I don’t look like a receptionist. I don’t look like a receptionist because I’m not a receptionist. Do I really look like a receptionist?”

C “You look like a person. You look like a person receiving a pay chcck from the government. You look like a person who might know which agencies are in the building.”

B “Ask the receptionist.”

C “Where do I find the receptionist?”

B “There is no receptionist. We don’t have a receptionist. I don’t know where the Recorder’s Office is located.”

. . .

[0942 hours]

B “We don’t record documents with two holes punched at the top of the pleading. Period.”

C “The court required two holes to be punched at the top of the pleading.”

B “Don’t care if it’s not right. There are rules.”

C “I can’t remove the holes. The statute says that every properly signed and notarized document ‘shall’ be recorded. ‘Shall’ is a mandatory verb. That wording actually makes life easier for all of us.”

B “It’s discretionary around here.”

C “Now today is a Tuesday. On Tuesdays, some supervisors exercise discretion and record a document even if it has court-ordered holes in it.”

B “Well, it is in fact Tuesday, we can make an exception this time and follow the statute, if you insist.”

. . .

[“Now the hired help is taking home regular paychecks. I don’t. The hired help has generous health care. I don’t. The hired help has been promised that they will receive a defined benefit retirement plan until they depart this planet. I won’t. The response of the ‘receptionist’ is not dictated by some absurd official policy. And here on the wall near his office is a sign noting that the Recorder’s Office is down the hall to the left. He may be a private sector contract employee who suspects that the contractor who may file bankruptcy to shed any financial obligations, yet he is receiving a regular paycheck. Not far below the surface, Americans are angry, bitter, raging, frustrated and percolating. Seems that some are working, although something is not working.”]

Bumper stickers of the week:

“Hold it [the chicken] between your knees.” Jack Nicholson / Robert “Bobby” Eroica Dupea in “Five Easy Pieces” (1970) (With a little finesse, he could have gotten the toast without anyone getting toasted.)

Tear, fold, spindle and mutilate

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The “Contract with America”; The Congressional Reform Act of 2010 (March 29, 2010)

Posted in Conflicts of Interest, Congress, Health Care, Pensions, Term Limits on March 29, 2010 by e-commentary.org

. . .

“They need to be treated like us; we need to be treated like them. It’s that simple and that difficult. The only mechanism to deal with the conflict of interest between elected officials and ordinary citizens is to put them in the same bed and on the same boat. That is the real ‘Contract with America.’”

. . .

Bumper sticker of the week:

1. Term Limits. 12 years total pursuant to one of the three options below:

A. Two six-year Senate terms.

B. Six two-year House terms.

C. One six-year Senate term and three two-year House terms.

2. No Tenure / No Pension. A Congressperson collects a salary while in office and receives no pay when he or she is out of office.

3. Congresspersons, past, present and future, participate in Social Security. All funds in the Congressional retirement fund transfer to and all future funds are deposited with the Social Security system immediately. Congress participates with the American people.

4. Congresspersons can fund their own retirement plan just as all Americans do.

5. Congresspersons will no longer vote themselves a pay raise. Congressional pay will rise by the lower of CPI or 3%.

6. Congresspersons lose their current health care system and participate in the same health care system as the American people.

7. Congress must equally abide by all laws they impose on the American people without exception.

8. All contracts with past and present Congresspersons are void effective 1/1/11 absent some compelling reason. The American people did not make these contracts with Congresspersons. Congresspersons concocted these contracts for themselves.

(For some variations on these big bumper ideas, see the “e-ssays” dated March 5, 2007 titled “Congress Should Increase Congressional and Judicial Pay; Shareholders Should Reduce CEO/CFO/COO Pay,” dated May 14, 2007 titled “Term Limits,” and dated February 25, 2008 titled “’American Medicine’ Not ‘Socialized Medicine.’”)

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Outsourcing Pensions? (Sept. 7, 2009)

Posted in Pensions on September 7, 2009 by e-commentary.org

The government is outsourcing more traditional government activities to private sector entities that may never pay their pension and health care obligations to their employees. Outsourcing is alleged to be cheaper, although in the long run it will be much more costly to the country.

Some employers promise a “defined benefit plan” to their employees that promises to pay a certain amount of money on a defined schedule. This is a traditional retirement program. However, the promise is hollow if there is little or nothing to fund the obligation. The programs are likely to be underfunded or unfunded because they rely on a growing economy and disciplined investing. The private sector entities can simply dump the entity (“Fly By Night Government Services, LLC”) into bankruptcy and use section 365 to extinguish any pension and health care obligations without any civil or criminal consequences of any kind whatsoever to the entity or the individual owners.

Most employees and unions oppose a transition to a “defined contribution plan” that provides sums directly to or for the benefit of the employee to be invested by the employee pursuant to a “401(k)” or other program. The virtue is that the funds are within one’s control; the vice is that the funds are within one’s control. Only a small number of employees are talented or lucky enough to manage and grow the funds.

Many citizens are likely to discover that there is nothing waiting for them at the “end of the day.” Trillions in unfunded obligations will overwhelm the Pension Benefit Guaranty Corporation.

[See the “e-ssay” dated April 14, 2008 entitled “Pensions and Other Entitlements: Pt. 1” and the one dated April 28, 2008 entitled “Pensions and Other Entitlements: Pt. 2” under the Category “Pensions.”]

Bumper stickers of the week:

“Promises of payment/Are neither food nor raiment”

What is a trophy wife? A woman with vested Tier I state benefits.

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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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