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Monday, January 31, 2005

UN's says of Sudan: "Nope, no genocide here!"

Reuters has this article about an upcoming UN report on the situation in the Darfur region of Sudan.

Apparently the article doesn't call the systematic hunting and murder of non-Muslims (i.e. Christians) "Genocide."

Do you think that means the situation isn't as bad as we've heard? Could be, I suppose. However, that's not necessarily the only answer with a strong probability of being correct.

Another possibility that I think is even more likely to be true than the idea that everything over there is actually nice would be that the UN is playing word games. You might wonder WHY the UN woud bother mincing words. The answer is simple, and founded within the ius gentium realm of international law. ("Ius gentium" means "the law of all people." Roughly speaking it's the most basic of true international law, if there is such a thing.)

You see, if the UN had found actual genocide, then they would have painted themselves into a corner. When genocide exists, under international law, ANY nation can take action to end it. Not only that, but, because of the UN's Charter, the UN is expressly designed to be the body by which that action is taken. (See Article 1 Section 1.)

Most scholars believe that when a serious violation of human rights laws, such as genocide is known to exist then it becomes the duty of any nation which has the capability to intervene to do so.

Knowing this, the UN has several positive incentives to NOT find genocide in Sudan.
  1. The ones with power in the Sudan are the Muslims, so ordering a military intervention would risk angering other Islamic nations.
  2. Finding genocide would would require the UN to act and they know that, when it comes to stopping attrocities, the UN has been wholly ineffective. Another failure would be the final nail in the coffin of the UN's credibility.
  3. Finding a genocide would be a greenlight to the Bush doctrine of forcing despotic terroristic regimes to comply with international norms of human rights or risk being destroyed.
  4. Finally (OK, there may be more), finding a genocide would force coutries like France and Germany to get off their butts and do something for somebody other than themselves.
Then again, perhaps Germany would welcome the chance to intervene so that the government could encourage these new immigrants to take the jobs the native Germans prefer not to do themselves.

"no one in the United States should try to overhype this election."

I'm sure it was surprising to, well, somebody, that of all people in the United States, John Kerry was not all that keen on elections anywhere.

John "Mr. Ed" Kerry... Get over it. You LOST. Just because you lost doesn't mean that all elections are bad. As a matter of fact, the simple fact that you lost is proof to about 60 million Americans that elections are good!

To any Iraqis who read this, let me say, "Bravo, and Congratulations! Don't ever lose your courage. Freedom is costly and scary because it is obviously uncertain, but don't let that damage your resolve because the apparent security of the various flavors of communism/socialism/despotism are less stable in the long run. You won't know what will happen tomorrow when your free, but you will be able to make great plans for your and your children's future, if your free to chart your own course through uncertainty. God bless you, and know that so long as you strive for freedom, you will have friends in America."

"A full year's supply of sour kraut with purchase of any qualifying Moral Vacuum!"

When I saw this article, "If you don't take this job as a prostitute, we can stop your benefits" in the Telegraph (from the UK), I was speechless.

Go ahead and read it for yourself.

Essentially, Germany legalized prostitution in 2002 in an apparent attempt to curb the trafficking in women that was taking place in the underground prostitution industry. That's a thought, I guess. What would have occurred to me would be to catch and imprison (for a long time) anyone involved with the prostitution industry, and perhaps execute anyone who was found to have been knowingly involved in any trafficking of women (if the women were either kidnapped or in any way tricked into their current situation).

But, hey, that's just my idea... I guess legalizing it might work, in an alternate universe, I suppose.

So, our new best friend, the Law of Unintended Consequences has reared it's (initially attractive) head. In the government's attempt to end the trafficking of women, they've become the traffickers. That really is a great description of the situation. To continue to be eligible to receive the social benefits upon with she had become dependent, a woman is now forced to take any available job, if she hasn't found a job in her field within a year. Since prostitution is legal, brothels can advertise for employees. Now the woman highlighted in the story must take the job as a prostitute or become destitute. I guess you could say that she's gonna get screwed one way or another.

So... I've always said that every system functions exactly as it's designed and implemented, and that's true of legal/social systems as well. Therefore, we've learned a little about what the legalization of prostitution was really all about. Instead of being a means of protecting women who were being pulled into prostitution against their will, it was about making sure the government got a cut of the action.

I wonder, was the law originally passed after promising a year's supply of sour kraut if the legislators bought this moral vacuum?

Thursday, January 27, 2005

Sometimes the consequences aren't exactly "unintended."

I mentioned unintended consequences just the other day.

Sometimes, however, the negative consequence is fully expected. Then, what can you say of the court or legislature that implements the policy or law?


That seems to be the right word. Maybe it was merely "Greed."

That's the case that Maryland is currently experiencing. Governor Ehrlich called a special session of the legislature at the end of 2004 to debate and pass a bill to deal with the sky-rocketing medical malpractice rates.

Plenty can be said about that topic, but what's important in this context is that, instead of actually trying to address the root cause, the Legislature (controlled in both houses by veto-proof Democrat majorities) chose to enact a law that imposed a tax on HMOs to help physicians pay their insurance premiums.

Governor Ehrlich (a Republican) promised to and did veto the bill, and then the legislature overrode his veto. The governor stated at the time he vetoed the bill that he didn't like the bill primarily because the 2% tax imposed on the HMOs was just going to get passed to the consumer.

Well, after the veto-override, HMOs have begun raising their rates. Realizing that despite the "big dollar" profits that Democrats always accuse HMOs of making, their profit margins have only recently become positive, and typically run around 3 or 4 percent. A 2% tax is devastating. It's a major disincentive to do business in Maryland. Insurers, when a state becomes unprofitable tend to stop writing policies and doing business in that state. Duh.

The insurance commissioner, Al Redmer, has a dual duty to make sure that insurance companies stay profitable so that they will continue to provide policies in the state, and that consumers are not shafted by insurers. The Maryland Legislature has repeatedly contemplated taxing HMOs, but just hadn't done it yet, and so the previous (Democrat) administration had prepared procedures for allowing HMOs to raise their rates. Everybody, in the legislature knew that an HMO tax was going to get passed directly to the consumers. When we had a Democrat governor, the thought that Democrats were going to increase the cost of health insurance directly was enough of a disincentive that the legislature never did pass such a tax.

Now that we've got a Republican governor, the Democrat leadership in the legislature apparently thinks that they can impose the tax and then blame the Governor's insurance commissioner, and therefore the Governor, for the increase in HMO prices.

That's exactly what they're doing.

Here's an article from the Washington Shaft, "Md Insurance Chief Criticized" The Washington Times has a better, more balanced article, "Md Democrats shift blame," that actually begins to examine the cause and effect of the situation.

I laughed when I saw that Senate President Mike Miller called Mr. Redmer "a lap dog for insurance companies."

Senator Miller is a trial lawyer. His firm makes loads of money off of Maryland's medical malpractice crisis. Heck, they're part of the cause for the crisis. Is it any wonder that Miller supported a measure that threw tax dollars into the mouths of the med-mal lawyers rather than a measure that might tend to shut those mouths?

Here's what I have to say to Senator Miller:
Senator Miller, it's better to be a "lap-dog" to the insurance companies than a lap-dancer for the trial lawyers.

LA prosecutors planning on letting another killer off-the-hook

This is just a preliminary take on the LA train wreck legal implications.

Here's a Reuters article about it. (Here's a CNN story.)

As you probably already know, the accident appears to have been caused by a person parking a vehicle (one of those evil SUVs, of course) on the tracks in an attempt to commit suicide. At the last minute, the person (Juan Manuel Alvarez) changed his mind and jumped out. The train crashed into the Jeep and then collided with two other trains. Ten people died as a result.

The word is that the prosecutors plan on charging Alvarez with 10 counts of murder with special circumstances that would allow them to seek the death penalty.

The problem is they won't be able to prove it. If they charge murder (1st degree is what's required in almost every state to get the death sentence) and don't also charge manslaughter as a "lesser included" then he's gonna walk.

Don't get me wrong, I don't like what the guy did. I don't think he should be free, but that's what the law is going to require. Why? First degree murder requires an intent to kill another person. You can transfer the intent from one person to another via "transferred intent." (That's when you try to shoot and kill A, but miss and kill B instead... You're still liable for murder of B.)

Who did the SUV parker intend to kill? Himself

Perhaps the California criminal code doesn't require the intent to be to murder someone else, but even if it would allow the intent sufficient to charge murder to be the intent to commit suicide, the Alvarez chickened out and saved himself.

After that, the train ran into the SUV. The SUV didn't run into the train. From what I've read and heard, then what the Alvarez did was, at worst, criminally negligent. By parking his Jeep where he did, he wasn't trying to kill or hurt anyone besides himself. Once the intent to injure himself ended prior to the accident, the fact that he didn't move his vehicle appears to be extreme negligence, but not a new intent to create an accident that could result in serious injury or death.

Beyond that, the police themselves are referring to Alvarez as "deranged" and he was described as walking around muttering to himself, "I'm sorry, I'm sorry." He was trying to commit suicide, and according to the stories had tried to kill himself by slitting his wrists and stabbing himself. This was a guy with major mental issues. I seriously doubt that he had the mental capacity for negligence. The prosecution could probably get negligent homicide to stick, but murder... No.

Yes this is an outrage, but it does not seem to have sprung from any bloodthirsty intent, so the resulting death was accidental. If the prosecution goes after murder, they will lose the ability to seek any punishment whatsoever.

However, all of this being said, this is just my initial take on the legalities, and subsequent facts may change my mind.

Tuesday, January 25, 2005

Supreme Court ignores indications that the Law of Unintended Consequences has not been repealed

Howdy, all... Sorry it's been a while since my last post. I've been busy, but mostly I haven't been inspired to write.

Well... Today I heard Rush mention a recent Supreme Court Ruling (Commr. v. Banks) about the tax consequences of judicial awards (and settlements of suits).

Here's an article about it.

I'll not go into the facts of the case, you can read it for yourself if you're terribly interested.

The issue of the case is whether an award, in its entirety, is taxable income to the litigant, or whether that person may exclude the legal fees associated in securing it.

The policy debate boils down to a question of whether the legal fees are discretionary expenses or business related, and whether the award is compensation for some sort of injury or a proxy for income.

By statute, (26 U.S.C. 104) settlements or awards for physical injury or sickness are NOT income and therefore not taxable. However, punitive damages are punishment of the defendant and therefore not compensation for sickness or injury and therefore taxable. If you're out of work because of a slip-and-fall, the portion of the settlement or award for the lost wages are proxies for lost INCOME and are therefore taxable.

However, if you're a business suing for lost profits, the award is income, but the expenses to acquire it are considered a ordinary and necessary business expense and is therefore deductible. Individuals, however, don't get to take advantage of that deduction (unless you're attempting to get alimony). That's not entirely intuitive after reading Section 212.

So, why does this matter? Because our friend, the Law of Unintended Consequences, is going to make settlements go even higher now. Because of the Court's decision, if you have a valid case, you're going to sue for even more than before because you're going to get less out of a settlement than before. In theory, lawyers might lower fees, but that theory is sheer fantasy, so it's not even worth discussing.

The L.A. Times article referenced above mentions a case where a plaintiff won $300K after years and years of litigation, and the court awarded legal fees of $1,000,000. The IRS contended that the entire $1.3M should be considered taxable income to the plaintiff. The article claims that a brief filed with the court contended that the plaintiff lost every bit of the award because of this. I suspect that this scenario wouldn't hold up to a Due Process and "fundamental rights" analysis because it would tend to discourage any pursuit of justice through legal means. Additionally, because the legal fees court awarded AS legal fees to be paid to the attorney, it would be difficult to argue (though I wouldn't put it past the IRS to try) that the legal fees were at any time the property of the plaintiff. At least with a contingency suit, the legal fees are a percentage of the award, and therefore taxing the entire award has the internal consistency of taxing monies that were awarded to a particular party.

I disagree with this ruling, but it's not all that much of a departure from current tax-law jurisprudence. I suspect that we will begin to see structured settlements now in which instead of being awarded, for example, $1M, the plaintiff will accept an offer of $600K, and the attorney will accept a direct payment from the defendant of $400K that does not reference the $600K award to the plaintiff. That's a structural difference that may be sufficient to keep the plaintiff from having to pay taxes on the $400K paid to the attorney.

At first blush, I'm uncomfortable with the implications of this ruling. However, the Court recognizes that this particular result is only applicable for (employment) cases that arose prior to the American Jobs Creation Act of 2004. (It's not yet codified in 26 U.S.C. 62(a)(19).) Nevertheless, I am still wary of broad interpretations of the definition of "income." I can't shake the suspicion that the 16th Amendment wasn't intended to abrogate the 9th Amendment without specific reference.

Friday, January 07, 2005

Michigan prosecutes abortionist

Okay, folks, sorry it's been so long since I've posted anything. After the holidays, I just didn't have anything to say. I know, there've been lots of news events, especially the Tsunami, but I just wasn't inspired to write.

But, today, I've been inspired by a story I saw to break my cyber-silence. It looks like Michigan has decided to prosecute an abortionist. That might be surprising. It wouldn't bother me if all states started prosecuting all abortions that weren't for pregnancies resulting from rape or in order to save the life of the mother. (See my rationale here.)Nevertheless, it's odd to see, until you read the facts.

Here's the whole story.

Basically a teenage boy and his pregnant girlfriend decided that the cheap option for them would be for him to hit her in the stomach over a couple of weeks to induce a miscarriage.

The state is charging the young man under Michigan's 1999 "Prenatal Protection Act." The teenage girlfriend was a full participant in the plan, but she wasn't charged... Does anybody smell a problem?

Yes, that's right, the 14th Amendment DOES have something to say about this. Michigan is discriminating in favor of women and against men. No man can ever take advantage of the safe-harbor provision of the law. The law specifically excepts the mother since she could legally abort the child. She gets a status-based exemption and he does not.

I suspect that the Michigan legislature never contemplated this. Perhaps the best option that the prosecutor could take would be to avoid the Prenatal Protection Act entirely and charge both of the teens with practicing medicine without a license. They were attempting to accomplish an abortion which is a medical procedure, so, perhaps it would stick.

I guess I'm just a little dumbfounded that the state would consider charging the young man in this instance. If the girl had gotten a couple of bucks together and gone down to her local abortion-doc, the state would have thrown her a ticker-tape parade, but instead, she decided to save the money and now her boyfriend is looking at prison until he turns 21.

I suspect that, in the end, the blatant gender inequity will force an appellate court to throw out any conviction. To bad. They both deserve to rot...

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