Thursday, December 30, 2010

Concurring Opinions » The Illusion of Free Pharmaceutical Markets

The title alone is enough to make me like the book. But as Frank Pasquale explains, there's a lot more to like.

Over the break, I have been reading Bernard Harcourt’s extraordinarily illuminating The Illusion of Free Markets. I believe Harcourt’s “archeology of regulation” convincingly shows that when “layers of legal entitlements, technical rules, and criminal prohibitions are exposed, it is clear that the notion of natural order or market efficiency is pure fiction” (196). What John Quiggin accomplishes in an economic idiom, Harcourt achieves via legal, historical, and philosophical analysis. You’ll never view commodity trading (or much of the rest of our economic landscape) the same way after you’ve read his brilliant book.
Concurring Opinions » The Illusion of Free Pharmaceutical Markets

Billy Taylor - pianist, teacher - dies at 89

When we were in high school my sister Nancy gave me for Christmas a Miles Davis Album - Live at the Blackhawk.  How did she know?  It was 1961.  All we knew (or all I knew) was show tunes, wearing out the grooves on Oklahoma and South Pacific.  I had a couple of Harry Belafonte albums too.  And certainly a few 45's.  Patience and Prudence I recall  - "got along without ya before I met ya, gonna get along without you now".  But Nancy had been listening in her room to the radio, late at night, when we were supposed to be sleeping, to WLIB, to Billy Taylor's Taylor Made Jazz.  She learned about Miles and Kind of Blue from the fine pianist and brilliant teacher, remembered HERE on NPR and HERE in the Guardian which talks about his role as teacher and emissary of jazz - America's Classical Music.

And below is his most famous composition: I Wish I Knew How It Would Feel to be Free.

Jay-Z: Interviewed And 'Decoded' : NPR

Rap star and author Jay Z talks about his life and new book Decoded with Fresh Air's Terry Gross
Jay-Z: Interviewed And 'Decoded' : NPR

Monday, December 27, 2010

The revolving door: Defense firms lure retired generals - The Boston Globe

The general corruption of the public service - the revolving door leads  to plush spots selling things to the Pentagon. Bryan Bender of the Boston Globe digs in to cover the gravy train - as generals and admirals check out of government service they check in at big defense contractors.
Defense firms lure retired generals - The Boston Globe

h/t again to James Fallows

Sunday, December 26, 2010

Jon Stewart’s Advocacy Role in 9/11 Bill Passage -

Jon Stewart with 9/11 responders
Bill Carter and Brian Stelter in the Times ask:
Did the bill pledging federal funds for the health care of 9/11 responders become law in the waning hours of the 111th Congress only because a comedian took it up as a personal cause?And does that make that comedian, Jon Stewart — despite all his protestations that what he does has nothing to do with journalism — the modern-day equivalent of Edward R. Murrow?
Jon Stewart’s Advocacy Role in 9/11 Bill Passage -
This is no time for modesty.
You heard it HERE first. On February 4, 2010 I wrote:
Jon Stewart is becoming Edward R. Murrow: the most serious independent television journalist of the moment.  He is armed with a comic persona, razor sharp wit, and the analytic skills of a top flight political commentator.  

If the PBS News Hour wants to come out of its torpor they should replace Mark Shields with Jon Stewart, and David Brooks with Andrew Sullivan.

ThinkProgress » Nearly One In Nine Federal Judgeships Are Now Vacant

ThinkProgress » Nearly One In Nine Federal Judgeships Are Now Vacant

Friday, December 24, 2010

The New Jersey First Act is a bill before the Governor of New Jersey would require new state hires to live in New Jersey. 

Wednesday, December 22, 2010

Take the week off: Obama's excellent day

Obama and Biden applauding passage of the health care reform act
Well the ISP (incredible shrinking president), as Paul Krugman labeled him, the man who Frank Rich said had lost his bearings, etc.  has landed on his feet.  I think the lesson for all of us is - don't underestimate Obama, Biden, and team.

This week the House and the Senate (of all unlikely places) sent him repeal of Don't Ask, Don't Tell, the 9/11 responders bill, the defense authorization act, the tax compromise (admit it - you don't really object to the 2% payroll tax cut for the coming year), and finally the New Start nuclear arms limitation treaty with Russia. And the Food Safety and school lunch bills too.

I think the President, Michelle, Sasha, and Malia can enjoy Christmas week in Hawaii where he was, in fact, born.

How did Republicans End Up on Wrong Side of 9/11 Responders bill?

The answer is twenty five years of anti-labor "tort reform" ideology.

Monday, December 20, 2010

Sad. the bitterness of John McCain

Not very long ago John McCain was a Daily Show regular.  Jocular, straight-talking, mavericky.  How could any Democrat beat him, I thought.  Then came the Lehman collapse.  But now McCain thinks he should be President and that two lesser men stood in his way - first GW Bush and now BH Obama.  Now McCain plays the  bitter old man.    This from Talking Points Memo:

Before the Senate passed a repeal of Don't Ask, Don't Tell on Saturday, Sen. John McCain (R-AZ) made an angry -- and somewhat rambling -- speech on the floor against the repeal. He warned of "distractions" for servicemembers, adding: "I don't want to permit that opportunity to happen and I'll tell you why. You go up to Bethesda [Naval Hospital], Marines are up there with no legs, none. You've got Marines at Walter Reed with no limbs."
"So here we are about six weeks after an election that repudiated the agenda of the other side," McCain said, "we are jamming -- or trying to jam major issues through the Senate."

All I can think of to say is: Senator, maybe you should ask yourself  `how many of those wounded soldiers are gay?

Sunday, December 19, 2010

NJ Law Journal Editorial Bd: Justice Rivera - return to duty or resign

The Editorial Board of the New Jersey Law Journal has called upon Associate Justice Roberto Rivera Soto to cease his abstention from voting on decisions of the court or resign:
Copyright ALM Media, LLC (2010) all rights reserved.  Further reproduction only by permission of ALM Media, LLC.

Abstention From Duty

We are appalled at the behavior of New Jersey Supreme Court Justice Roberto Rivera-Soto. In two unrelated cases, Henry v. Department of Human Services and Johnson v. Johnson , he has unleashed an unprecedented attack upon the Court on which he sits, unnecessarily and wrongheadedly dragging the Court into the political impasse over appointments between the Republican governor and the Democratic-controlled Senate.

Worse, in refusing to acknowledge the legitimacy of the Court's majority conclusion that temporary assignments of judges to fill vacancies are permitted under the state constitution even when there is a quorum, he has declared the Court's composition to be illegitimate and unconstitutional and has announced he will abstain from future votes as long as the appointee in question, Judge Edwin Stern, sits with the Court. His actions go far beyond the bounds of legitimate disagreement among appellate judges

The New Jersey Constitution's Temporary Assignment Clause, art. VI, § 2, ¶ 1, allows the chief justice to appoint a replacement justice "when necessary." Reasonable minds can differ whether that language means that appointment can be made whenever there is a vacancy or only when there is a lack of a quorum. Since the Court's inception in 1948, chief justices have made hundreds of these appointments, most of them when the Court had five or more sitting members and a quorum was not at issue. We recently agreed with the Court's interpretation that temporary assignments could be made to fill any vacancy and argued that this should be done consistently to avoid tie votes.

However, we strongly disagree with the academic argument on which Justice Rivera-Soto relied, which is that "when necessary" means only when essential to create a quorum so that the Court may act. From the earliest days of federal constitutional law, it has been understood that "necessary" is a broad grant of power to act when useful or desirable, rather than a limitation to act only when essential. The drafting history of the Temporary Assignment Clause, set out in Chief Justice Stuart Rabner's concurrence in Henry , demonstrates that the framers of the 1947 constitution understood "necessary" as a grant of power rather than a limitation, which is consistent with their overall intent to create a powerful and autonomous judiciary. While there is a place for honest debate on the point, there is none for acting above the law.

History shows us that angry and frustrated dissenters can attack not only the reasoning but also the intellectual honesty of their colleagues. Had Justice Rivera-Soto simply issued a reasoned dissent — even a vehement and personally offensive one — critical of appointing judges to vacancies on the high court when there was no lack of quorum, he would have been well within the bounds of judicial behavior. But his "abstaining opinions" go far beyond what is proper in two respects.

First, he issued a broadside accusing the chief justice and the majority of the Court of taking sides in the political impasse between the governor and the Senate over the nomination of Anne Patterson to replace Justice John Wallace Jr. by appointing Judge Stern, the senior appellate judge, to fill the vacancy temporarily. Second, he attacked the legitimacy of his own institution, refusing to abide by the decision of the majority with which he disagreed and announcing a sit-down strike, refusing to act while Judge Stern sits.

When one strips away the veneer of legal argument about the Temporary Assignment Clause, it is clear that Justice Rivera-Soto's main argument is that by easing the Court's workload, assuring a tie-breaking vote and adding a seventh member, the chief justice's action emboldened the Senate Democrats to continue their refusal to consider the Patterson nomination. Justice Rivera-Soto is wrong. The Senate does not have a duty, as he implies, to accede to the governor's nomination or even to consider it. Its duty to advise and consent includes the power to exercise independent political judgment, albeit negative, as to the Court's future composition. There is no obligation to fill vacancies until the two political branches reach agreement. 

In the meantime, the Court's business must be carried on. The chief justice's power to empanel a full court and to keep it functioning strengthens the Court's autonomy in the face of the impasse between the other branches. "The appointing power of the Executive and the Legislature's role in passing on nominations is not the business of this Court, although our 'abstaining' colleague has made it his business," Justice Barry Albin wrote in his Johnson concurrence. "It is our 'abstaining' colleague who has needlessly politicized an independent, nonpartisan decision by the Chief Justice, and he alone bears responsibility for the collateral damage done to the image of the judiciary."

Most importantly, Justice Rivera-Soto is wrong because he has defied the fundamental principle that a majority decision of the Court is binding unless and until reversed by another majority. The Temporary Assignment Clause has been interpreted by a majority of the Court in accord with the practice under five previous chief justices and now decided by a majority of the Court, and that interpretation is the law until changed by the regular process of the law. It is Justice Rivera-Soto's duty to respect the decision of the majority, however much he may disagree, and to abide by that decision. He announced inJohnson that he would continue to participate in argument and issue opinions, but would not vote. 

His refusal to perform the duties of his office — while still drawing his salary — is a direct attack on the legitimacy of the institution on which he sits. His verbal attack denouncing the "tyrannical majority," for insisting he follow the rule of law and do his duty as a justice by fully participating, calling opinions critical of him "prattle," further belittles his position and makes it appear as if he is waving his newly unveiled "strict constructionist," confrontational persona as if it were an updated résumé for reappointment, if not a blatant appeal to a wider audience where such strident absolutism is immensely popular.

There have already been calls for Justice Rivera-Soto's resignation, and even for his impeachment, for refusing to do his appointed duty and vote on cases. This is not the first time Justice Rivera-Soto has brought the Court into disrepute, having been reprimanded for his use of his position in advancing his son's cause in a dispute at a public school, and having violated an order sealing evidence in a criminal appeal. He has now further damaged an institution already anxious over the prospect of future partisan intrusion.

We believe that his presence on the Court, which he has so disrespected by his refusal to vote and abide by the majority, will inevitably distract from the Court's business if he continues his course of conduct. There is room on every court for contrary opinions, and Justice Rivera-Soto, aside from the majority decisions he has written, has served an important role in writing many dissents and challenging the majority in the course of substantive legal discussion. But however important his role has been, if he cannot reconcile himself to respect the majority's decision and perform his duties as a justice, he should resign.

Thursday, December 16, 2010

Wiliam Prosser on teaching law

Dean William L. Prosser
from Volume 1 of the Journal of Legal Education (1948), a lecture by Dean William Prosser on the art, craft, and frustrations of teaching law.  The lighthouse metaphor particularly appeals to me.

The Politicization of New Jersey’s Court -

The Times urges Gov. Christie to renominate Justice John Wallace:

"When Gov. Chris Christie of New Jersey chose not to renominate Justice John Wallace Jr. to the State Supreme Court in May, it was a case of political overreach. The situation is now a national disgrace, thanks to the governor, the State Senate president, Stephen Sweeney, and Justice Roberto Rivera-Soto...

The Politicization of New Jersey’s Court -

Wednesday, December 15, 2010

Seeking a path to restore order in the N.J. Supreme Court |

Prof. Ed Hartnett
proposes rescue of Justice Rivera Soto
Justice Roberto Rivera Soto heavily relied on Seton Hall Prof. Edward Hartnett to justify his refusal to vote on cases being decided by the New Jersey Supreme Court.   In an Op-Ed piece in the Star Ledger  Hartnett offers Governor Christie a way to by-pass the State Senate, eliminating the vacancy which produced the temporary assignment to which Rivera Soto objects: a recess appointment by Gov. Chris Christie.
Seeking a path to restore order in the N.J. Supreme Court |

My comments:

Associate Justice Rivera Soto believes that with a temporarily assigned judge voting  the New Jersey Supreme Court is illegitimate as constituted.  He refuses to participate in its judgments  so long as the court sits with such a temporary justice (except if needed for a quorum).   Prof. Hartnett seeks to excuse  Rivera Soto's boycott of court votes by saying that U.S. Supreme Court judges Brennan and Marshall consistently refused to join in their court's rulings on certain categories of issues on which they disagreed with the majority.   But they were dissenters not abstainers. And he suggests a Governor's recess appointment of stalled nominee Anne Patterson.  That would vindicate Rivera Soto - who would then return to voting on cases because the temporarily assigned judge would no longer be sitting.

It would set a terrible precedent if such a guerrilla tactic as Rivera Soto's were rewarded with success.

It is the duty of a judge to decide.  The parties and the people are owed the duty of adjudication.

Abstention by a judge is rarely appropriate but sometimes necessary.  It is employed principally when a personal conflict may prevent the judge from upholding her duty of competent and impartial judgment: as when she has an interest in the outcome, or her physical limitations threaten her ability to render fair and competent judgment.

Justice Rivera Soto cited the example of Justice Harry Blackmun to justify his refusal to judge the cases  before him.  But in his passion Justice Rivera Soto failed to determine the facts.  In 1976 Justice Harry Blackmun voted to allow executions to resume - in the belief that it could be fairly and consistently employed.  18 years later he had despaired of that.  In Callins v. Callins he declared "From this day forward I shall no longer tinker with the machinery of death."

But from that day forward Justice Blackmun did not abstain.  He participated in every case - of every kind - before the court.  And in death cases he dissented.  He dissented even from denials of certification, in what came to be known as `Callins dissents', which recited the conclusion  he had reached after twenty years of trying to fairly enforce the death penalty: that it is an impossible task and that the punishment is administered so arbitrarily that it is unconstitutional.

It would behoove Justice Rivera Soto to embrace Justice Blackmun's example.  He owes a duty to conscience to dissent on issues of principle relevant to the cases before him; and to abide by the judgment of the court thereafter.  The Court on which he sits or the judgment of the people may someday vindicate his view that the Chief Justice's interpretation of the New Jersey Constitution is wrong.   But the remedy announced by Justice Soto "abstention" is, to use his phrase, ultra vires - outside of law and precedent.  Justice Rivera Soto should without delay resume exercise of the full duties of a judge of the Supreme Court.
- GWC   12/15/10

Tuesday, December 14, 2010

Step Discipline: Is NJ Justice's "abstention" basis for removal or discipline?

NJ Senate Pres. Sweeney and Justice Rivera Soto
The New Jersey Supreme Court has been thrust into crisis by the rebellion of its most conservative Justice Roberto Rivera-Soto who now calls the Chief Justice a "tyrant" who violated the state constitution.   (Opinions here and here.) 

A vacancy was created by the expiration in the spring of the 7 year term of Associate Justice John Wallace a well-regarded veteran African American jurist.  

Gov. Christopher Christie (R-NJ), citing his desire to reverse the court's liberal thrust, refused to support tenure for Wallace who was 22 months short of mandatory retirement age 70.   He nominated a corporate lawyer Anne Patterson for the seat.  Stephen Sweeney, the Democratic state Senate President declared that no action would be taken on the nomination until the day that Justice Wallace would have been compelled to retire.  

Citing strains on the court's workload Chief Justice Stewart Rabner temporarily assigned the senior judge of the Appellate to fill the vacancy.  Rabner relied on the state constitution which permits such temporary assignments "when necessary".  

Rivera Soto said that only inability to muster a quorum of five made a temporary assignment "necessary".  He declared the court to be "unconstitutionally constituted" and its actions "ultra vires".  He would henceforth "abstain" from all future decisions until the temporary assignment is terminated.  The Chief Justice and three Associates denounced as defiance and dereliction of duty Rivera Soto's abstention on the first case after the majority had ratified the Chief Justice's assignment order.

Rivera Soto - whose term expires in 7 months - - has irretrievably damaged his chances of re-appointment.    He dismisses as "prattle..scarcely worthy of reasoned response" the Chief Justice's criticism of his boycott of voting as a member of the court.  He denounces as partisan the appointment of a judge on temporary assignment to give the court a full complement of judges.  He denounces the "tyranny of this particular majority", accusing the court of pursuing a "politically correct" agenda,  The Governor probably agrees with the last but it seems extremely unlikely that Christie - a former U.S. Attorney - would not share in the shock and outrage that many have expressed over Rivera Soto's vote boycott and harsh denunciations of his colleagues- and his superior.  And it is inconceivable that the Democratic majority in the state Senate would endorse a nomination.

As one who started out as a union-side labor lawyer I always think of step discipline.   Justice Rivera Soto was reprimanded by the court for misuse of the prestige of his office, flashing a business card showing his membership on the court to aid his son.  That violated Canon 2 (A and B).  [IMO Rivera Soto,  192 N.J. 109 (2007)]

If Justice Rivera Soto were a school custodian he would be suspended immediately for insubordination and abandonment of duty.  But as a judge he has the protection of NJSA § 2B:2A-10:
Suspension prior to hearing
   No hearing to remove a judge from office as provided for in this act shall be held until the cause for suspension, if the cause is a result of an independent civil, criminal or administrative action against the judge, is finally decided in a tribunal in which the judge had an opportunity to prepare his defense and was entitled to be represented by counsel.
Refusal to participate fully in the work of the court violates the oath of office, which certainly requires a judge to judge, and to accept majority rule, and, yes, precedent established by the court on which the judge sits.    Canon 2 A  issues are again presented:  

"A judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary."
If Justice Rivera Soto defies the calls on him to resign (by the Senate president), even if the Legislature moves to impeach him, the inevitable next step is  for the Chief Justice  to refer the matter to the Advisory Committee on Judicial Conduct where the justice's continued defiance will doubtless be rebuked.  His only chance, it would seem, is the sort of apology and retraction that seems highly unlikely now.

- George Conk

New Jersey Supreme Court: Canons of Judicial Conduct
Canon 1. A Judge Should Uphold the Integrity and Independence of the Judiciary
An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing, and should personally observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective.

Canon 2. A Judge Should Avoid Impropriety and the Appearance of Impropriety in All Activities

A. A judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

B. A judge should not allow family, social, political, or other relationships to influence judicial conduct or judgment. A judge should not lend the prestige of office to advance the private interests of others; nor should a judge convey or permit others to convey the impression that they are in a special position of influence. A judge shall not testify as a character witness.

Amateur Hour: VA Judge Makes Elementary Error In Health Care Ruling | TPMDC

Amateur Hour: VA Judge Makes Elementary Error In Health Care Ruling | TPMDC

Stile: Free advice to no-show justice: Just pack it in -

Associate Justice Roberto Rivera Soto

Sharp comments on Justice Rivera Soto's sit-down strike: from columnist Charles Stile in The Record (Hackensack, NJ)

Time for Justice Rivera-Soto to resign |

Time for Justice Rivera-Soto to resign |  Tom Moran of the Star-Ledger lays out the facts and the situation well.  He begins

State Supreme Court Justice Roberto Rivera-Soto embarrassed the court once before, over personal misbehavior that forced his fellow justices to censure him in 2007.
But now he has gone overboard. Now, he has insulted his fellow justices and accused them of partisan political motivations. More important, he is refusing to cast votes or write decisions on the cases before him.
Enough. This appointment was a mistake from the start. It is time for Rivera-Soto to resign. He is essentially refusing to do his job anyway.
This dispute has its roots in Gov. Chris Christie’s decision to remove Justice John Wallace from the court earlier this year. Until then, governors in both parties had reappointed justices in good standing, despite ideological differences. Christie was the first to attack the court’s independence by subjecting justices to a political litmus test.

Saturday, December 11, 2010

Thomas Friedman - Grim Prospects for Israelis and Palestinians

  • Astonishing - and grim.
  • from Thomas Friedman's Op-Ed essay, Reality Check, in Sunday's Times:

I understand the problem: Israeli and Palestinian leaders cannot end the conflict between each other without having a civil war within their respective communities. Netanyahu would have to take on the settlers and Abbas would have to take on Hamas and the Fatah radicals. Both men have silent majorities that would back them if they did, but neither man feels so uncomfortable with his present situation to risk that civil war inside to make peace outside. There are no Abe Lincolns out there.
What this means, argues the Hebrew University philosopher Moshe Halbertal, is that the window for a two-state solution is rapidly closing. Israel will end up permanently occupying the West Bank with its 2.5 million Palestinians. We will have a one-state solution. Israel will have inside its belly 2.5 million Palestinians without the rights of citizenship, along with 1.5 million Israeli Arabs. “Then the only question will be what will be the nature of this one state — it will either be apartheid or Lebanon,” said Halbertal. “We will be confronted by two horrors.”
The most valuable thing that President Obama and Secretary of State Hillary Clinton could do now is just get out of the picture — so both leaders and both peoples have an unimpeded view of their horrible future together in one state, if they can’t separate. We must not give them any more excuses, like: “Here comes the secretary of state again. Be patient. Something is happening. We’re working on a deal. We’re close. If only the Americans weren’t so naïve, we were just about to compromise. ... Be patient.”
It’s all a fraud. America must get out of the way so Israelis and Palestinians can see clearly, without any obstructions, what reckless choices their leaders are making. Make no mistake, I am for the most active U.S. mediation effort possible to promote peace, but the initiative has to come from them. The Middle East only puts a smile on your face when it starts with them.

Peter Orszag - from the Oval office to Citibank in five months

President Obama with Peter Orszag
Like James Fallows I was very disturbed when I read Peter Orszag's very good op-ed piece today - because he said it would be his last. He has joined Citigroup in a senior position only 5 months after leaving the White House, shortly before his celebrity wedding.

When the President's former whiz-kid Director Office of Management & Budget steps into a megabucks job with a company that was recently rescued by the federal government - that is not change we can believe in. That is no change at all.  That is how regulatory capture works.

Thursday, December 9, 2010

Remembering Sylvia Pressler

Sylvia Pressler, P.J.A.D.
Deborah Poritz
"One should not just ask `what does the case hold'?, but also what is good, what is just and what is kind?  Sylvia asked and answered those questions and for that we are grateful."
Deborah Poritz, Chief Justice (Ret.), Supreme Court of New Jersey.
The 2010 Weintraub Lecture at Rutgers-Newark Law School, my alma mater, was delivered as a duet by two of the women who were among the very first to lead the New Jersey judiciary - Virginia Long, Associate Justice, and Deborah Poritz, retired Chief Justice.  It was a `sisterhood is powerful' event as the two women played tribute to the late Sylvia Pressler, liberal lioness of the Appellate Division of the Superior Court, maven of the Civil Practice Rules Committee and stalwart of thirty years on the bench.

The link to the video of this delightful and moving tribute is HERE.
Virginia Long

The Obama Tax Cuts - Austan Goolsbee, Council of Economic Advisers

Austan Goolsbee, Chairman of the White House Council of Economic Advisers, makes a straightforward presentation of the deal that is the subject of today's passionate debate, and of severe criticism on the left:

Gail CollinsFalling Off the Bandwagon -

Gail Collins: falling off the drawing lines in the sand bandwagon.
Falling Off the Bandwagon -

Why Progressives Should Accept the Tax Deal -

Photo of Steven Shiffrin
Steve Shiffrin
"I think it is surprising that Obama got as good a deal as he did – particularly since he started the process by negotiating with himself. I am not sure the tax cuts are a good idea - even for the middle class (politically mandatory as they may be). We would be better off with a jobs program that would rebuild our infrastructure and a more generous welfare program (welfare benefits even for the disabled are indefensibly stingy). But the perfect should not be the enemy of the good or even the not-so-good-but-the best-we-can-get."
"The Democrats have established that the Republicans are acting like moral lepers. They have teed up the issue for 2012. Of course, there is an urge not to accept a compromise with the corrupt. But would the Democrats get a better deal in 2011 with a House controlled by Republicans and an easy filibuster in the Senate? And, if the middle class tax cuts are held up while both parties haggle, who is to say that the Democrats will not get a healthy share of the blame? After all, this is the same electorate that voted in the representatives of greed. "
Why Progressives Should Accept the Tax Deal -
Steve Shiffrin , Cornell Law School, is author "The Religious Left and Church-State Relations (Princeton U. Press 2009) 

Wednesday, December 8, 2010

Social Security Fund Untouched: Accounting for the Payroll Tax Cut

Just to allay fears: your FICA deduction (up to the social security taxable limit of $106, 800) will be reduced by 2% for 2011. BUT the Social Security trust fund will NOT be shorted. The shortfall is charged to the General Funds of the United States, so the Trust Fund remains fully funded.
Calculated Risk: Accounting for the Payroll Tax Cut

NJ Ethics Committee Blocks Surety's Demand that Attorney Protect Surety

photo of a stack of booksThe New Jersey Supreme Court's Advisory Committee on Professional Ethics  reviewed an inquiry  from an attorney who represents the administrator of an estate.  Opinion 719, published today, is binding in New Jersey, though any party affected (or bar association) may petition the state's Supreme Court for review.

The Administrator was required by the Surrogate to obtain a surety bond.  The Administrator, however, had poor credit and the surety companies to whom he applied set conditions  for issuance of the bond.  The conditions included an agreement by the attorney that the attorney  will remain involved in the matter; will pay the bond premiums; will protect the interests of the surety as well as the client administrator; will  provide legal services “for the benefit of the surety”; will exercise joint control over estate assets; and will  notify the surety if the client administrator breaches his or her fiduciary duty.  The inquirer asked whether he may, consistent with the Rules of Professional Conduct, comply with such conditions.  The Committee finds that compliance with these conditions is prohibited by the Rules of Professional Conduct:

An attorney who complies with these requirements becomes a co-fiduciary with the client administrator.  The attorney may not, consistent with the Rules of Professional Conduct, provide legal services to a client administrator under these circumstances. 

Unemployment extension: Obama gets stimulus $$

Let's get this much clear: the tax deal between the President and the GOP extending unemployment benefits for 13 months is a major boost for the economy and a life saver for the unemployed who otherwise would join the homeless or the foreclosed.  And it's cheap: long term interest rates are low and there is plenty of available cash (most of it corporate) to buy U.S. Treasury bonds.

The letter here is the plea to the President and  Congressional leadership by leading progressive economists to do just that.  More on the positive elements of the plan later: including the payroll tax cut.

Tuesday, December 7, 2010

Fact Sheet on the Framework Agreement on Middle Class Tax Cuts and Unemployment Insurance | The White House

Fact Sheet on the Framework Agreement on Middle Class Tax Cuts and Unemployment Insurance | The White House

ThinkProgress » Scarborough Fumes Over Tax Deal: GOP Not ‘Interested In Cutting The Deficit,’ Obama Blew ‘An Easy Battle’

ThinkProgress » Scarborough Fumes Over Tax Deal: GOP Not ‘Interested In Cutting The Deficit,’ Obama Blew ‘An Easy Battle’

67 stents, 28 coronary angiograms, and a crippled healthcare system

Eric Topol, MD
67 stents, 28 coronary angiograms, and a crippled healthcare system
Eric Topol, director of cardiology at Cleveland Clinic/Case Western asks in this video does this make sense? One man - 28 angiograms, 67 stents? We will hear in the coming debate on health care reform about the dangers of government rationing of health care, and scare tactics using distorted claims about Canada and England. But like the star cardiologist who inserted 30 stents in one day and was rewarded by Abbott Labs - even after the whistle blue - we should look at case reports like this and ask: 
Are there any controls for over-treatment in our system?
The hospitals benefit from the fees, as do the manufacturers, and interventional cardiologists.
The tort system is an after the fact remedy - not an efficient regulator.
Everyone hates pre-clearance by insurance companies or government (Medicare and Medicaid ) .
Do you have a better idea?

heart attack diagram

In PISA Test, Top Scores From Shanghai Stun Experts -

So to improve our competitiveness in math and science we should send them Republican Congressmen who will explain why we should abolish the federal Department of Education and encourage them to do the same, so that their scores drop down to our level. It's kind of a reverse Sputnik moment strategy.
In PISA Test, Top Scores From Shanghai Stun Experts -

click on image to enlarge

ThinkProgress » Obama Agrees To Extend All Bush Tax Cuts And Cut Estate Tax In Deal With Republicans

ThinkProgress » Obama Agrees To Extend All Bush Tax Cuts And Cut Estate Tax In Deal With Republicans

Sen. Kerry on the tax cut debate (pre-deal)

A very competent presentation by John Kerry.  Remember that most of the 65 seats the Democrats lost were in pretty conservative places or places with rather narrow margins for Obama in 2008.  How to win them back is they key question.  We will be fighting over taxes for the next two years - that's what today's deal guaranteees.

Monday, December 6, 2010

Can Obama Win Back His Base? - Room for Debate -

Politics is the art of the possible, so compromise is a must. For Obama the problem, surprisingly, is the vision thing. Not the vision of peace, the vision that goes beyond race and beyond national chauvinism; but the vision to persuade people that he has got the fire to claw back what we have lost in the years of conservative ascendancy - now that the right has got its mojo back.

This piece in the Times is worth a look.  It is comments by several observers.
Can Obama Win Back His Base? - Room for Debate -

30 in One Day! -Dr. Mark Midei Faces Suits Over Cardiac Stents -

30 cardiac stents inserted in patients in one day, followed by a pig roast paid for byAbbott Labs, the manufacturer.  All paid for by Medicare. It is the patients and the public that are getting roasted. The problem  is widespread says Steven Nissen, director of Cardiology at Cleveland Clinic/Case Western.
Dr. Mark Midei Faces Suits Over Cardiac Stents -

Sunday, December 5, 2010

Yglesias » The Discontent Baseline

Matt Yglesias emphasizes the importance of being objective about what has an has not been accomplished by Obama. Compare to Carter - a lot, to Clinton - he looks good, to Johnson - well that's a special case: epochal progresss on domestic issues, hit the rocks in Vietnam. - gwc

Yglesias » The Discontent Baseline

Saturday, December 4, 2010

End game - Extending the Bush Tax Cuts and the power of NO

The game changes now: Congress must act to avert the wreck of an Obama promise: no tax increases for the "middle class"  on the rocks of the Party of No's "no tax increases for anyone".   Obama needs to learn (but probably won't) that he too can say NO.  He has the veto power.  
If Congress does nothing taxes go up.  If Congress does something he does not like he can say NO.  Raising taxes on the those under $200K/$250 for families is a bluff he can call.  He can suspend penalties and interest, direct the IRS to permit payroll deductions at the current rates for those up to 200/250,000, veto any meausre Congress proposes until it meets his terms.  If he can figure out what they are.
And Obama must now contend with a minority of Democrats who can filibuster to block any tax measure that does not tax the rich!   Or Deficit reduction hawks this is your chance!  Raise taxes, cut spending!

from the Times:
Senator Frank R. Lautenberg, Democrat of New Jersey, said he would benefit personally from a tax cut on income above $1 million. “I had a good business career, and I would be entitled to a tax cut for those over the million-dollar mark” he said. “But I don’t want it. I don’t need it. What I am looking at today, I think, is a great American travesty.”

Mr. Obama’s preferred plan fell 7 votes short of the 60 needed to overcome a filibuster and advance to a simple majority vote. The vote was 53 to 36, on a bill adopted by the House on Thursday to end the cuts on income above $250,000 a year for couples and $200,000 for individuals.
Republicans voted unanimously against the House-passed bill, and they were joined by four Democrats — Senators Russ Feingold of Wisconsin, Joe Manchin III of West Virginia,Ben Nelson of Nebraska and Jim Webb of Virginia — as well as by Senator Joseph I. Lieberman, independent of Connecticut.
HERE is the Times account 
What makes Democrats vote against such a measure?

First: Obama's lack of skill at knife fighting and trash talk.

As William Butler Yeats wrote "the best lack all conviction while the worst are filled with passionate intensity".  I feel like I am watching Barack Obama morph into Jimmy Carter who was held hostage by Ayatollah Khomeini's devotees who took the U.S. Embassy and held it until Ronald Reagan walked into the White House.   Obama's finds himself held hostage by Eric Cantor, Mitch McConnell, John Boehner and the trolls who inhabit Fox News.

As to how the end game pans out, check out master number cruncher Nate Silver in the Times HERE on the Democrats' tax cut dilemma.  Silver observes:

But the Democrats’ leverage, ultimately, stems from their willingness to allow everyone’s taxes to increase, if necessary, since that is what happens if no deal is reached. If President Obama were to begin noting, for instance, that raising everyone’s taxes would have about three times the deficit-reduction power than raising just some of them, this could make his threat more credible. But it would also make his position less popular, since it would change the debate from being one about taxes on the rich to being one about the proper level of taxation over all.