Monday, November 30, 2009

The Health Care Blues: The Lawyers' Full Employment Act of 2010

Thanksgiving’s over; Congress is back in session, facing the turkey of “healthcare reform.” It’s not going away; something will pass, hopefully digestible to the voters.

You can’t square a circle, or is it you can’t circle a square? The four irreconcilable legs of the health care plan are abortion, costs, public option, and undocumented immigrants.

The final bill can be prolife or prochoice, but not both. Either way, it will lose votes.

The costs of these proposals will, like all major entitlements to date, grossly exceed the estimates, which is why states like Tennessee abandoned their universal health plans. The plans can only be financed through substantial, job killing tax increases.

Public option is a code word for a single payer (government). It will over time displace the private market.

The current plans exclude undocumented immigrants. Regardless of the merits of granting legal residence, any inclusion will bankrupt the plan. The Obama Administration intends to reintroduce a version of the McCain-Kennedy Immigration Reform Bill that will grant legal status to current residents and their extended family members.

The House Bill is but a scant 1990 pages and the Senate Bill an even more prodigious 2,094 pages. Let loose the lawyers. The final bill will probably be even longer. The legislators have not read the bills they voted on, but lawyers will with an electron microscope.

The profession needs the boost - trial lawyers, defense lawyers, insurance lawyers, tax lawyers, administrative specialists, appellate lawyers, bureaucrats, doesn’t matter! We all need the business. Let law schools open up health reform/universal access clinics, and the lawyers will follow. My job is secure.

A common refrain during the 1970’s and 1980’s was that every major environmental statute Congress enacted, be it CWA, CAA, NEPA, CERCLA, RCRA, or TSCA, should be labeled “The Lawyers Full Employment Act of ---.” These statutes unleashed a horde of regulators and regulations, citizen suits, and especially billable hours.

The House bill will create 111 new agencies, boards, and panels while the Senate Bill imposes a seemingly infinite number of new taxes, in addition to those in the House bill. These bills exceed anything Kafka could have imagined in his worst nightmares. Machiavelli should be proud. The longer the statute, the more likely it will contain incomprehensible and contradictory language.

Only judges and lawyers can straighten out the legislative morass. Lawyers represent clients. The attorney’s professional duty is to find gaps or craft loopholes in the statute, just as tax lawyers do now.

If a camel has been defined as “a horse designed by a committee,” then imagine what a bill drafted by 5 House and 3 Senate committees, and then massaged through a joint conference committee, will look like.

Any prolix statute of 100 pages is perforce a billing opportunity for lawyers. Multiply that 10 fold, and we have a Congressional Christian/Chanukah present to the legal profession. Hand out the Holiday bonuses!

We in legal education should applaud Congress, make that a standing ovation. Too many law schools currently graduate too many lawyers too deeply in debt for too few jobs. The employment market for new attorneys has shriveled in the current economic climate.

Congress has shown the way. An armada of attorneys will be unleashed just to staff the new bureaucracies. An epidemic of lawyers will spread through America like the H₁N. Even more will litigate and appeal the interpretations and enforcement of the new health regime.

Forget the doctors. We will be populated with lawyers, billable hours, retainers, and contingency fees. The California Bar Association lists 222,595 lawyers licensed in the state, while the California Medical Board lists 127,436 medical licenses. America has over 1.2 million lawyers today compared to 750,000 doctors. The differential shall increase in our litigious society.

Congress is creating a national need for more lawyers.

Happy New Year.

The Global Warming Emails and Data Dumps: Science, 'ism's," or Academic Fraud

Science is truth. Science is the objective search for truth. Science is driven by facts. Science draws its strength from objective studies and conclusions, and the universality of its truth.

Religion is faith. We believe these faiths are the truth.

Science is different, but not necessarily incompatible, with religion.

When science stops relying upon facts, but turns to subjective belief, it is no longer science, and should not be treated as such. It is more of a religion. Each of us is free, both by free will given us by God and the Constitution, to choose our religion. Many today have become secular humanists in additional to the traditional religions, and are using this belief to influence their science..

Early on in the environmental movement, a few true believers viewed environmentalism as an “ism,” i.e. a new religion for Man, even resorting to ecoterrorism.

That is not representative of the mainstream environmental movement. Most environmentalists, no matter how fervent their feelings, recognize environmental protection as a major goal for society; to change the prevailing ethos from the quantity of life to the quality of life, from resource exploitation to resource conservation, to view and enjoy our natural resources for ourselves and our children, for aesthetic, conservational, and recreational uses, to keep trees standing and waters flowing in their natural state.

Yet, even the leaders of the mainstream environmental organizations recognized that compromises were inevitable and environmental progress not always steady. The National Audubon Society has oil wells on its refuges, and for a long time the Sierra Club did not use recycled paper to make its beautiful calendars.

The cause of global warming has recently become a religion to some, with no room for dissent and no questioning of the underlying facts. It is their core belief that human activity is warming the globe. The picture painted is apocalyptic, calling for draconian action now!

Perhaps the overwhelming majority of scientists, and certainly the vast majority of Environmental Law professors in America, agree that society must take action to combat human caused global warming, but are not global warming zealots.

What if the science is wrong? What if some of us, a minority like myself, are iconoclasts on the science because we are not convinced? What if the numbers have been manipulated by true believers?

Questions that arise include:

Is the globe really warming, since global temperatures have dropped or stabilized this decade?

Is this decade just a short term anomaly in the long term temperature rise?

Are weather changes simply part of long natural cycles, dependent for example on sunspots, ocean currents, and volcanoes?

Are the apocalyptic global climate models accurate; what are their assumptions and underlying facts? Can they be validated? After all, the models a quarter century ago predicted the coming ice age.

Why is the carbon footprint being singled out when several greenhouse gasses exist?

If the current warming phrase is caused by carbon dioxide emissions into the atmosphere, then would any actions undertaken today make a difference? The current CO₂load is the result of hundreds of years of coal burning, will not dissipate for hundreds of more years, and we currently lack the science to neutralize it.

The scientific method is critical for science to have validity and believability.

A scientist may observe phenomena in nature, or through experimentation, and then form a hypothesis. The scientist can also form a hypothesis, and then test it through experiments, observations, and studies. The goal is to prove or disprove the hypothesis. The observations and methodology should be public so that other scientists can replicate the results, as well as provide searching critiques (even Einstein wasn’t always right a century ago, and cold fusion report from Utah was a bust two decades ago).

Proof of a hypothesis often involves the elimantion of alternative theories. Sometimes you can prove a positive by excluding the negatives. A major variable in global warming is the cooling-warming natural meterology cycle.

The scientist can certainly be hopeful of verifying the theory, but must remain objective. The hypothesis may be a failure, or not verifiable. The data can be incomplete, or even inconsistent and perhaps contradictory. Anomalies may appear in the data. The scientist should then reassess the hypothesis, and perhaps recognize that the answer or solution is not yet in sight.

The true scientist should neither dismiss inconsistent data nor silence opposing voices; the search must always be for the truth.

Science does not have to be 100% correct; indeed, 95% often passes for scientific certainty. (By way of comparison, the law looks upon a preponderance of the evidence, or 50.1%, as factual). Science must recognize that 5% though.

Herein lies the problem with the recent email disclosures. The Climate Research Unit of the University of East Anglia has informally become the central clearing house on global climate studies. Many international reports are based on studies coming through the university, especially the highly influential Inter Governmental Panel on Climate Change (IPCC).

Someone hacked into the computer system at East Anglia, downloaded over 1,000 emails and 2,000 documents, and then posted them for the world to view. The University is irate at the breach of security.

The resulting treasure trove is a Pentagon Papers of Global Warming, or Summer Simpson Papers of asbestos. Some scientists crossed over the line and became true believers rather than truth seekers. They sought not the truth but to suppress it. They have become zealots with Ph.D.’s posing as scientists. They are intolerant of dissent and dismissive of inconsistent facts. Rather than reasoned scientific arguments, they engaged in ad hominem attacks.

One refrain refers to skeptics as “idiots.” Discussions were made of discrediting the Wisconsin Ph.D. thesis of a prominent critic, Dr. Pat Michaels, of the Cato Institute.

Dr. Phil Jones, Director of the East Anglia Institute, wrote to Dr. Michael Mann of Penn State about the “trick of adding in the real temps to each series … to hide the decline” in the actual temperatures.

He also emailed Dr. Mann that with respect to dissenting papers on the IPCC report they “will keep them out somehow --- even if we have to redefine what the peer review literature is!” Critics were unable to get their papers published in peer reviewed journals, and hence turned to the global web with their criticisms of global warming.

The peer review process is supposed to validate the methodology of the paper, and not necessarily its conclusions, but the advocates were using peer review to block publications.

Dr. Mann once argued that if one highly successful, prominent critic, Michael McIntyre, wanted to be taken seriously, he should publish in refereed journals. We now know that was impossible.

Climate Research once published a dissenting paper. Dr. Jones demanded the editor be fired, and advised others to stop considering the publication as a legitimate peer reviewed journal. They encouraged blacklisting of the journal.

Dr. Mann referred to a Wall Street Journal column questioning the global warming hypothesis as “total garbage.”

These proponents of human caused global warming refused to include contrary reviews in their prominent international studies, such as the IPCC, thus providing a veneer of unanimity in the reports.

They refused, contrary to the long established practice in the scientific community, to share their data with contrary voices.

Benjamin Santer of the Lawrence Livermore National Laboratory wrote that he was “tempted to beat” up Dr. Michaels. So much for reasoned discourse! Years of inconvenient measurements were ignored, giving rise to Vice President Al Gore's famous hockey stick of global warming.

The internet releases do not change the underlying science of global warming, whatever that science might be, but they dramatically alter the perceptions and politics.

We have a skewed saying in the law: “I know the law; don’t confuse me with the facts.” The East Anglia circle, key to the international consensus on global warming, is: “I know the science; don’t confuse me with the facts.”

Apparently, we still cannot predict the weather, but we can lie about it.

The true believers may have perverted science and crippled their cause. They distorted the scientific method to seek personal fame, millions in grants, universal acclamation, and even a Nobel Peace Prize.

The Tines of London published over the weekend a report that calls into question the entire methodology and studies of the East Anglia institute. Their studies, the basis for the IPCC report, built a baseline of temperature readings over time so as to calculate global temperature rises over the past 150 years.

The raw data was massaged to account for “variables.” The revised “manipulated” figures become the baseline. The Institute now admits pursuant to a Freedom of Information Act request that it had thrown out the raw data. It has retained only “the value added (quality controlled and homogenized) data.” In other words, science is unable to replicate the East Anglia studies.

Significantly, Professor Jones already had to retract one of his papers, which he could not substantiate in response to criticism by Mr. McIntyre.

I repeat, global climate change may or may not be a scientific fact, but you cannot prove it by the East Anglia studies. We have true believers, who quite possibly engaged in massive academic fraud.

Wednesday, November 25, 2009

The Grinch Who Stole Christmas Before Thanksgiving

The celebration of Christmas, of course, celebrates the birth of Christ. The holiday and season are based on religion, reflecting the Judeo-Christian, or at least Christian, heritage of Western Civilization.

Recent decades have witnessed the secularization of Christmas, such that the comedian Stan Freeberg sang 4 decades ago: “I’m dreaming of a Green Christmas.” Thus, only 30 shopping days till Christmas, preceded by Black Friday.

Shopping not excepted, Christmas still remains a highly religious celebration to most Americans, overlapping with Chanukah.

We thank God for the birth of Jesus, pray for peace and love, and also remember those less fortunate than ourselves. Thus, we give of ourselves to others. We give because of religious beliefs and our moral code. We give because we will.

Yes, we can call it charity, donations, philanthropy, munificence, or eleemosynary, but not everything shows up as a charitable contribution to a 501C(3) on our tax returns. We give because it is who we are.

We give in large ways and small. We give to people and institutions. We give to adults and children. We give locally and globally. We donate to causes and even to the unknown. When we throw coins into a Salvation Army pot or toys into a Marines Toys for Tots box, we know they will reach the deserving.

And on occasion a Grinch throws lumps of black coal into the majesty and beauty of Christmas.

The Orange County Superior Court House has placed a tree in the lobby for about two decades. The tree has tags hanging from it. Each tag has the name of a specific child for whom a donation is sought. 374 presents were donated last year for Operation Santa Claus.

A Grinch, a member of the public, saw the 6’ artificial tree the other day and complained. Someone, a thoughtless bureaucrat, in a position of authority, but lacking common sense and wisdom, inexplicably removed the tree on Monday.

We can debate the meaning of the First Amendment, but a Christmas tree is not a religious symbol, and the tree in the courthouse does not display religious ornaments. It is a symbol of peace and beauty and our humanity to our fellow man.

In lieu of the tree, a barren table was placed in the lobby. It is no substitute, but symbolic.

The court employees have circulated a petition, protesting the removal. The petition eloquently expresses the heart and soul of America:

“That tree holds the cards that contain the wishes and needs of those less fortunate
than we are and shame on those who want to take that away from those of us who
wish to give. Now at the court’s darkest hour, our symbol of hope has been taken
away from us.”

Amen.

Tuesday, November 17, 2009

President Obama Has Called For a Jobs Summit

President Obama has called for a jobs summit on December 3. He has invited economists, business owners, executives, labor, academia, non-profits, and government to the summit. It's invitation only. We don't know yet if the Chamber of Commerce is invited. He should invite the Chinese, and forget the rest.

In other words, after almost a year in office, he’s clueless.

He’s acting like a community organizer, getting everyone in a room together to resolve an issue.

America needs a President who will take action. Leaders must lead at a defining point in their Presidencies. The economy is the single most important issue to most Americans. Healthcare Reform, cap and trade, et al, do not create jobs. To paraphrase the old Ford slogan: “Employment is Job One,” or should be.

The President had 11 months to create jobs in this country. The Stimulus Bill was designed to keep employment under 8.6%. It was 8.1% when he assumed office. Unemployment is now 10.2% and rising. The Stimulus Bill is a costly failure.

The few jobs created have been in government. Most of the jobs saved have been in government.

A Detroit Free Press study showed that the hundreds of millions of dollars spent to buy thousands of cars from the Detroit manufacturers did not save or create one job. Employment remained static. The newspaper also reported that “fewer than 700 awards had received money, and nearly half of them – 327 – had created one job or less, at a cost per job of $2.7 million.” $2.7 million per job!

The Boston Globe reviewed the claim of 12,374 jobs being created or saved in Massachusetts, and called it “wildly exaggerated.”

Why do we need a summit when the President has a distinguished economic team advising him?

First, we have Timothy Geithner, the tax cheat, as Secretary of Treasury. One of Secretary Geithner’s first acts was to rail against China, the same China who controls our deficit.

Lawrence Summers, Treasury Secretary in the last two years of the Clinton Administration, is the Director of the National Economic Council. Summers is a brilliant economist, one of the youngest tenured professors in the history of Harvard, and fired as President of Harvard. Harvard is still digging out from some of the decisions he made on the investment policies of the Harvard endowment.

Professor Christina Roemer is the Chair of the Council of Economic Advisors. As an expert on The Great Depression, she should know better than raising taxes during a recession, but she favors taxing “Cadillac” health plans, which will soon be almost all private health insurance plans. She voiced a scary statement last month in which she said that almost all the job growth that will come from the Stimulus Plan has already occurred.

Not one of the President’s advisors is proposing plans that will promote entrepreneurism and the growth of new jobs in a changing economy. Not one is talking about unleashing the genius of the American people. Instead, they have concentrated on old jobs, such as GM and Chrysler, and public sector union jobs. The Obama Administration is fighting “the old economic war.”

The Democrats in Congress are clueless about economics, but well versed in politics.

President Obama is presently in China, the fastest growing economic power in the world. The Chinese Communists, currently the best capitalists in the world, are trying to educate the community organizer on capitalism and economics. He should listen, before they dump the dollar.

Sunday, November 15, 2009

The Next Frontier in Taxation: Taxing Students

The City of Pittsburgh is facing a taxing issue. The City’s budget is $15 million short and the Carnegie Public Library is also short of funds. The trick is to raise taxes on non-residents, who thereby do not vote.

Cities have imposed commuter taxes, hotel taxes, and rental car taxes. Pittsburgh even imposed a parking tax and proposed a “sick tax” on hospital bills in the 1970’s.

Mayor Luke Ravenstahl believes he has found the solution: a 1% tax on student’s college and university tuition bills in Pittsburgh, which he claims will raise $16 million annually. He's foaming at the mouth and fisc at the prospect of taxing 100,000 students at 7 institutions.

The students don’t vote, and the institutions can’t pack up their billion dollar plan and facilities and move to the suburbs. Seemingly, the schools and students are stuck in Pittsburgh.

The dauntless mayor is unfazed by the fact that similar taxes were rejected in Providence earlier this year, and got nowhere in Boston and Chicago.

Technically, he claims it will not be a tax on the students or their schools, but a fee levied “for the privilege of receiving a higher education in Pittsburgh.”

Semantics aside, it’s still a tax, which will be paid either directly or indirectly by the students. Ostensibly the purpose is to compensate the City for the services provided to the students, such as police and fire, and building inspections. In reality the jobs and revenues provided the City by the universities more than cover the cost to the City. Students, of course, pay large amounts of sales taxes, and contribute substantial sums to the Pittsburgh economy

The Mayor does not propose to dedicate the tax revenues to these purposes. Instead, he would pay them into the city’s pension plan and use for capital improvements. So much for polica nad fire, and building inspectors!

Imposing a tax on the universities poses a major legal problem. The City will be taxing nonprofit institutions, which are exempt from taxation. A tax on students raises issues under the Privileges and Immunities clause.

The colleges and universities have survived, indeed grown, in Pittsburgh and other cities as the traditional commercial, industrial, and retail bases have shrunk or collapsed. Thus, the Mayor wishes to tax the remaining, successful economic institutions in the city.

The idea of taxing college students represents a reversal of 350 years of American greatness.

One of the great distinguishing characteristics of America is upper mobility, made possible by universal education through high school and then our vast system of higher education.

Harvard University was founded in 1636 with a grant from the Massachusetts General Court. The University of North Carolina was founded in 1789 as the nation’s first public university. Our Founding Fathers recognized the need for colleges in the nascent nation. Ben Franklin founded the University of Pennsylvania and Thomas Jefferson the University of Virginia.
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The Universities of Georgia, Tennessee and Vermont were established in the late 1700’s. The University of Michigan was founded in 1817 by the Territory of Michigan before statehood was achieved. Other public universities were also founded before the Civil War.

Congress enacted the Morrill Act in 1862. This statute established our public land grant colleges, which joined the earlier public universities to create a system of public higher education for Americans as compared to the private universities, especially in the East, who opened their doors to the country's Protestant elite but closed the doors to Catholics, Jews, women and graduates of public high schools.

World War II witnessed the enactment of the GI Bill, which provided a free education to our Veterans, many of whom had never considered college during the Great Depression. A large wave of building community colleges and the Masters universities followed, accompanied by the expansion of the already established public universities.

Congress then enacted a series of student loan programs and the Pell Grants, as states offered similar grants as well as heavily subsidizing the public institutions to keep tuition and fees low.

The United States was making higher education available to all who wanted it at an affordable cost.

But then escalating costs of higher education coupled with state budget deficits and cuts to higher education resulted in sharp increases in tuitions and fees.

And now, Mayor Ravenstahl wishes to complete the circle by actually taxing tuition when most college students receive discounted tuition through scholarships and student loans as they struggle to pay the increasing costs of a college education, post graduate studies, and professional schools.

Saturday, November 14, 2009

Kelo Redux: The bankruptcy of a Jurisprudentially Bankrupt Decision

Every once in a while the Supreme Court issues a horrific decision – one which meets with general condemnation, such as the Dred Scott, Plessey v. Ferguson, and Korematsu cases.

The most recent infamous opinion of this ilk is the 2005 decision of Kelo v. City of New London, where the Court in a reviled opinion held the government could condemn private property to turn over to a developer, who presumably would make more productive use of the property.

New London is a picturesque coastal town in Connecticut. Like many communities in the Northeast and Midwest, its traditional economic base is declining. New London was looking for economic development, and thought it found salvation in convincing Pfizer to build a large facility in New London, and develop a hotel, offices, condos and shops on the surrounding site. The city’s planners and political leaders salivated at the prospect of $1.2 million annually in increased property taxes, and thousands of jobs.

The only hitch was that the landowners, the residents who resided in the nice nine-acre Fort Trumbell neighborhood, refused to sell or move. New London therefore decided to condemn their houses, and then turn the site over to a developer.

The Court opined that the use of eminent domain for economic development constitutes a legitimate public use under the 5th Amendment’s Takings Clause: “Nor shall private property be taken for a public use, without just compensation.” The landowners’ argument was that the government does not have the power to take private property for a private use.

The Court held that the projections of economic growth, jobs, and tax revenues, as well as community revitalization constituted a public use.

The reaction to Kelo was quick, widespread, and generally hostile. Either by citizen referendum or legislation 43 states have limited the power of eminent domain.

Even if five justices, the media, and some politicians don’t understand the evil of Kelo, the public does. We believe that the government should leave our homes and businesses alone. To turn our houses and businesses over to rich developers or businesses defies the essence of America; we are equal. If it could happen in New London, it could happen anywhere in America. Those with money or power could use the government to squeeze out the less affluent.

Kelo is a singularly poor decision for three reasons. First, it violates the intent of the Bill of Rights. Our Founding Fathers realized that the Constitution granted broad powers to the government, but provided no protection to the people. The next step therefore was to adopt a Bill of Rights, which limited the role of government while recognizing the rights of the people.

The majority opinion interpreted the 5th Amendment to give rights to the state at the expense of the individual, clearly a judicial perversion of the Bill of Rights.

Kelo is also bad economics and public policy. It is premised on the illusion that government planners can map the future. The market will determine economic growth, not government planners. They will no more plan the future than the old 5 year plans of the Soviet Union. The result of Kelo is a $78 million investment by the city and state in a vast 24 acre vacant lot and a symbolic black hole in the ground representing no property tax revenues. The city traded weeds for homes.

Third, among the groups opposed to the decision are those representing minorities. Minority communities have long been victimized by earlier urban renewal projects, as well as being the recipient of land uses anathema to affluent communities. They know, and history proves, that the impacts of Kelo will disproportionately fall on their communities. The term is environmental justice.

Part of the reasoning of Kelo was based on dicta in a 1954 Supreme Court decision, Berman v. Parker. The case involved a standard 1950’s type urban renewal project: condemn the land in a “blighted” neighborhood, usually near downtown, and then turn it over to a developer to renew the area. The displaced residents then simply started a new ghetto elsewhere in the city. The projects were often unsuccessful in the long run, with the only profits being realized by the developers. Corruption or influence peddling was often the factors in choosing the developer and site.

Pfizer announced last week that it was closing the 750,000 square foot New London facility, resulting in the loss of 1,400 jobs over the next two years.

The redevelopment was bankrupt.

Friday, November 13, 2009

Rich Rodriguez: We Are Family

Who will be fired first” Charlie Weis or Rich Rodriguez?

Good Time Charlie, because President Mary Sue Coleman of Michigan said in a Wall Street Journal interview a week ago “I don’t think it’s fair to coaches to bring them in and say, ‘We’re going to give you three years.’”

President Coleman is thereby giving Coach RichRod a two year vote of confidence, which coincides with the length of his 4 year contract.

Don’t bet on it; the alumni lack that patience.

We understood that last year would be a challenge, but we expected signs of improvement this year.

Any transition to a new coach with a new system will be risky, but when you lack the personnel for the system, it’s suicide.

He likes small, quick, agile linemen for his spread offense. The reality is that large, quick, agile, athletic linemen will beat small, quick, agile athletic linemen on both the offensive and defensive lines. Michigan is being pushed around. This Saturday’s game is a prime example. Wisconsin’s OL weighs on the average 55 more pounds than Michigan’s DL.

Opposing QB’s have so much time to throw that Michigan’s defensive secondary is toast, and the QB’s look like All-Americans.

Alas, the team is reverting to all the bad habits of last year: fumbles, interceptions, missed blocks, missed tackles, missed assignments, and general confusion.

The coach has broken many records at Michigan:

40 successive non-losing seasons;

33 successive bowl games

Michigan had never lost a game to a MAC team, but RichRod lost to a
scandal ridden, 3-9 Toledo.

Rodriguez has only one record left to break at Michigan: 122 successive games with attendance of 100,000 or more. He might make it next year.

Michigan’s lead in all-time victories and winning percentage is dropping fast.

Rich Rod is making $2.5 million per year for 4 years; the largest salary any coach has ever earned at Michigan.

His salary equals $625,000 per victory. Greg Robinson, the defensive coordinator, recently fired as head coach at Syracuse after 4 miserable years, earns $270,000 this year.

I should have entered coaching rather than the law.

Rodriguez is asserting that the cupboard was bare when he assumed charge of the all-time winning football program in America.

We know weaknesses existed in recruiting in Lloyd Carr’s final years, especially on the lines and secondary.

The problems persist in the defensive secondary and the offensive line. Depth is sometimes short.

However, these problems were blown up by RichRod running off 25 players in less than 2 years. 2 starting quarterbacks, a backup QB, a starting running back, three offensive linemen, one starting safety, four receivers, the list goes on.

The sanctimonious coach stated that “Players and coaches are my family.” What about the 25 who left?

Rodriguez wanted to prove at Michigan he could win his way. It’s Rich’s way, or the highway. The losses mount.

Some transferred, some didn’t even suit up for their first game, some did not return for their fifth year, some quit the team, some turned pro, some of our scholar athletes had academic problems, a few were arrested , and others were kicked off. 25 players took the highway.

Some left even before his first season, with the promising offensive lineman, Justin Boren, transferring to Ohio State. Ryan Mallett, the first quarterback, is having an outstanding year at Arkansas. Sam McGuffie, an outstanding running back suffered three concussions in just a few games because of poor blocking. He left for Rice.

Football programs are allowed 86 scholarships. Bill martin, the Athletic Director and a consumate bean counter, should be elated. Rodriguez only has 71 players on scholarship.

And the losses go on.

When Justin Boren decamped last year for Ohio State, he attributed his leaving to a decline in family values by Rodriguez, who countered: “I think we have as close a family unit – coaches, staff members and team – as anyone in the country. Always has been, always will be.”

Soundslike a dysfunctional family to me with 25 leaving, and probably more to follow.

One of the 25 family members who left accused the program of forcing the players to participate in conditioning programs that violated NCAA rules. The charge probably won’t stick, but Michigan is subject to an NCAA investigation of its football program, something that never happened during the Bo Era.

A great coach shapes his coaching to the abilities of the players. For example, John Wooden won 10 national titles at UCLA, changing the style each time. He first won with quick guards, a full court press and no centers, and then with strong centers, and alternated with strong forwards but no center. John Wooden had flexibility – not a rigid system. You play the players you’re dealt.

Each home game is worth about $6 million in revenues to Michigan if the game sells out. President Coleman has to understand that with football attendance dropping, the economic loss will be catastrophic and the wrath of the alumni irresistible.

The highly promising basketball season is underway. John Beilein, who also came from West Virginia, has produced a winner. Michigan is proud.

UCLA is basketball, as are Kansas, Kentucky, and North Carolina. Michigan is football, as President Coleman surely understands.

Coach Rodriguez has asked for patience. Michigan has lost 6 straight times to Ohio State. It's been 2,192 days since Michigan beat Ohio State. The Michigan alumni have no more patience than Ohio State’s alumni with Earle Bruce and John Cooper regularly losing to Michigan.

An alumni base, spoiled by success, lacks patience. Ask Miami, Nebraska, Florida Notre Dame, Oklahoma, and Alabama.

RichRod’s biggest supporter is Bill Martin, who is retiring as AD next September 4, after a few problems. He lacked the proper ID at the Notre Dame and then 3 weeks later at the Delaware State game. Student security guards properly denied him admission to the Regents Guest Area. He pushed the guards aside, thereby displaying either arrogance or the influence of alcohol. Martin is regrettably too small to play even on Michigan’s lines.

The State of Michigan needs a winner. So does the University.

Sunday, November 8, 2009

Nidal Malik Hasan and the "Sudden Jihad Syndrome"

As the tragic events at Fort Hood unfolded, the phrase “Sudden Jihad Syndrome” popped into mind.

I encountered the phrase a few years ago doing research on school shootings and random acts of violence.

It was coined by Daniel Pipes after 9/11 to describe, or explain, a series of seemingly random, otherwise inexplicable acts of terror committed by male Muslims.

Examples include an Egyptian Muslin from Irvine, California who drove up to LAX on July 4, 2002 and started shooting up the El Al counter at the airport, killing two.

The Trolley Square Mall shooter in Salt Lake City on February 12, 2007 was a Bosnian immigrant.

A graduate of the University of North Carolina mowed down UNC students with his car on March 3, 2007.

The Jewish Federation office in Seattle was attacked on July 8, 2006.

Let us also not forget the D.C. Sniper, the subway bombers in London and the murderous doctors in London.

Many more examples exist, but that doesn’t tell us much.

Almost all random acts of violence are committed by males. Female shooters are a rarity.

I do not believe that a “mutant Muslim gene” triggers random acts of terror in men anymore than a similar gene triggers the “Going Postal syndrome.”

I do not believe that Allah points his finger at a Muslin, and whispers: "It's time."

I do not believe that Islam inculcates a religious need to commit random acts of violence.

Nor do I believe that the Arab, or Mideast Culture (Persians are not Arabs) instills random acts of violence.

Unlike some gang initiations, I do not believe that a convert to Islam must prove himself by taking an infidel’s life.

The phrase itself is inherently derogative. This unique use of a slur ignores all other types of random acts of violence, except for the original ‘Going Postal.”

For example, some law students have committed random acts of violence, but no one coined the “Paper Chase Syndrome” or “Kingsfield Syndrome.”

A 15 year old Native American went on a killing spree in March 2005, slaying his grandparents and then shooting up the reservation’s high school. No one labeled it “Redman’s Revenge.”

A few extremist environmentalists engage in eco-terrorism, but that is no more characteristic of environmentalists than to tar all pro-life advocates with the extremists who kill abortion doctors.

A few Asian-Americans, including Seung-Hui Sho at Virginia Tech, have engaged in these tragic acts, but we don’t calumny all Asians, such as reviving the despicable racist epithet “Yellow Peril.”

I believe that in a country of 38 million and a world of 6 billion humans, some psychopaths exist. Some event causes them to snap.

Something in their warped mind tells them that perhaps, just perhaps, they can justify the carnage by attributing it to a higher calling, such as Allah Akbar or the Palestinian Cause. These killers are not driven to violence by Islam.

Some of these crazed assailants are engaging in public acts of suicide. Investigations often discover underlying issues, such as economic problems, which the perpetrator is unable to resolve.

I recognize that Hamas, Hezbollah, and Iran pose a mortal risk to Israel and engage in state sponsored terrorism, but that is not the "Sudden Jihad Syndrome."

I’m simply not worried that the Muslim students in my classes will take me out some day.

Saturday, November 7, 2009

California's Stealth non-Tax, 10% Tax Increase

One of today’s clich├ęs is that California shows the way to the rest of the country. Think Silicon Valley, culture, style, freeways, fast food, strip malls, vocabulary, gangs, botox, plastic surgery, Dragnet, Sierra Club, The OC, Laguna Beach, The Real Housewives of Orange County, and Arrested Development,

Some of the ideas are ill-advised, especially high taxes and a dysfunctional state government

Never underestimate the genius of the legislature in raising taxes after the voters overwhelmingly rejected a tax increase. They have created a whole new tax increase, not covered by any restrictions.

As part of the third budget agreement this fiscal year, as the state budget headed south, the legislature increased withholding rates by 10%, effective November 1.

In other words, the Governor, seemingly opposed to new tax increases, and the Legislature, always willing to raise taxes, increased the state income tax by 10%. If your current withholding tax is $1,000, it is now $1,100, a further drain on wage earners discretionary income.

The theory is that if you currently underpay your taxes, you will now be more accurate. And if, perchance you overpay, they you will be entitled to a refund in April.

Until then, you will be providing the state an interest free loan, potentially a 6 month interest free loan.

However, the state is not required to refund tax overpayments to taxpayers until the end of July, deriving an additional 3 ½ months of an interest free loan. The State of California is giving itself a multi-billion dollar, interest free loan. And just in time, since the state and its political subdivisions are encountering resistance in the normal bond market.

The genius is even more brilliant. If we assume that California will be short of funds next April, as it was this year, then the state will issue vouchers at the end of July to be redeemable at an even later date. The vouchers at least carry a nominal interest rate.

Sheer genius!

Except for one small technicality. Once taxpayers catch on to what’s happening, they can adjust their withholding taxes by increasing the number of allowances on their withholding forms. They might end up withholding less than before.

Friday, November 6, 2009

Lessons From Tuesday's Elections

1) Voters are in a sully mood.
2) The Republican Party is in the ascendancy. Contrary to the pundits of a year ago, the Republican Party was no deader than the Democratic Party in 1994. Politics are cyclical, with the cycles accelerating with modern technology. Either the winning parties, as with Republicans in 1994 and Democrats in 2008, misinterpret the extent of their mandate, or they remain in office so long as to become fossilized and corrupt.
3) Conservatives can win in liberal states, and liberals can win in conservative districts.
4) Independents are truly independents.
5) President Obama’s efforts on behalf of candidates were as successful as most presidential efforts in off year elections, in other words, fairly ineffectual. Once again the youth and minorities voted in low numbers. They vote when they have a reason to.
6) The Democrats won two open House seats, adding to their substantial majorities in Congress.
7) Republicans, both the conservative Republican, and the faux Republican, lost New York’s 23rd.
8) Sarah Palin was right, once again. Dede Scozzafava is not a Republican.
9) The Republicans are showing life in the affluent suburbs, which have been voting Democratic in recent years. The Republicans recaptured the executive Office in Westchester County after a 12 year hiatus, regained control of the Nassau County Legislative, and perhaps the Nassau County Chief executive office.
10) Republicans picked up six assembly seats in Virginia, one in New Jersey, and a open state Senate seat in Michigan, strengthening their control of those legislative bodies in Michigan and Virginia. Republicans also did well in judicial elections in Pennsylvania.
11) Republicans even increased their representation in the New York City Council 40%, from 3 to 5, but the Council has 52 members. 5 incumbents were defeated for reelection
12) Voters vote social issues in times of affluence, and economic issues when times are tough.
13) Taxes are toxic to voters who feel they are overtaxed. Incumbents in New Jersey, New York, and Connecticut are in trouble next year.
14) Some school and library tax increases passed, but many were defeated, including Washtenaw County, Michigan, home of progressive Ann Arbor, but also depressed blue collar Ypsilanti.
15) Governor Grandholm of Michigan pushed through a disastrous $1.6 billion tax hike two years ago. Her proposed $1.4 billion tax hike is dead.
16) Ohio is gambling on casinos. Don’t bet the House.
17) Money doesn’t always buy elections. Governor Jon Corzine of New Jersey spent over $19 million of his own money in his unsuccessful reelection campaign, more than doubling the campaign funds of the successful challenger Chris Christie. Incumbent Mayor Bloomberg of New York barely eked out reelection after spending $100 million of his money on the election.
18) Grassroots campaigning still works.
19) Corruption issues will cost many incumbents reelection next year.
20) Losing candidates are accused of running poor campaigns.
21) Even when elections have national themes, local candidates, such as those running for Congress, need to emphasize local issues. Douglas Hoffman in New York did not.
22) Voters are not in favor of gay marriages (If not Maine, then where?), but will support civil unions and domestic partnerships (Washington).
23) I missed seeing the SEIU purple ocean standing behind the winning candidates.

Wednesday, November 4, 2009

The Louisville Slugger Strikes Out in Helena, Montana

“The timorous may stay at home,” wrote Justice Cardozo in 1929 on the inherent risks of sports.

The general rule has developed that a participant assumes the ordinary risks inherent in a sport. In short, if you play baseball, you assume the risks inherent in baseball. We call it assumption of risk. That includes being struck by a hit ball.

Sadly, and tragically, Brandon Patch did not stay at home in 2003. The 18 year old pitched in an American Legion game. The batter hit the ball directly at Brandon, who could not react in time to avoid being fatally struck by the ball.

The bat was a Louisville Slugger aluminum bat, which provides more bat speed than a wooden bat.

The family sued for wrongful death, survival of action, and emotional distress, alleging the aluminum bat was defective for failure to warn of the dangers of aluminum versus wood.

A Helena, Montana jury held for plaintiff last Wednesday, awarding $792,000 to the estate and $58,000 to his parents with the judge reserving a decision on possible punitive damages.

The jury held the manufacturer, Hillerich & Bradsby Co., failed to warn of the dangers of aluminum bats, resulting in the death of Brandon. However, the jury held the bat was not inherently defective, which is an inherently contradictory opinion.

Bat speed. If I had bat speed as a youth, not to mention eye-hand coordination, quick reflexes, and athleticism, I might have been able to hit the ball out of the infield.

In the decades since then, as with other sports, the players got bigger, quicker, and stronger. Bat speed increased, as did pitching speed. The athletes are better.

And the aluminum bat replaced the wooden bat in amateur baseball and softball. Not only does it improve performance, but it saves teams substantial sums of money. While an individual aluminum bat costs more than a wooden one, aluminum bats outlast the wooden competitors, which are prone to shattering.

Aluminum bats may be more dangerous than wooden bats, but so too are juiced batters, strong batters, and slow pitchers.

Wooden bats are also dangerous, and pose a major risk of hitting the batter. In addition, the flying shads from broken bats pose a major risk to players on the field, and fans in the stands.

Swinging at a 90-100mph fastball is a dangerous act that puts others at risk. The timorous may stay at home.

Batters are expected to not intentionally aim to hit the pitcher, but it happens all the time. A pitcher lacking good reflexes is a sitting duck, whether the bat is aluminum or wooden.

If you want to play baseball, assume the risks.

Realistically, no warning would have made a difference. The players well understand the risks of baseball, as do the fans. Players, coaches, umpires, and fans are struck quite often in baseball and softball by line drives and broken wooden bats. Some unfortunately die, indeed 39 from 1989 to 2006.

A warning on the bat, or on the bat’s box, would not directly have benefited the pitcher.

The law also does not require a warning when the person is already aware of the risks. An 18 year old, playing baseball, can reasonably be expected to appreciate the risks of baseball. If not, he’s an idiot.

Sunday, November 1, 2009

The Right Honorable Alan Grayson (D. Fla.), the Congressman From Acorn

Congressman Joe Wilson spontaneously yelled out at President Obama during his health care address to Congress “You lie.” The President probably was misstating the truth, or perhaps engaged in hyperbolic rhetoric during his presentation, but no more nor less than his predecessors.

The Democrats thought Congressman Wilson’s outburst was beneath the dignity of Congress and censured him for breaching the House rules of civility. The censure became a badge of honor for the Congressman, who has since raised millions of dollars from supporters around the country.

Hardly had the furor over Congressman Wilson’s lack of decorum settled down than a freshman Democrat from Orlando, by way of the Bronx, brought poster boards into the House and explained the Republican health care plan to elders as “Don’t get sick, and if you do get sick, die quickly.” In short he projected the democratic plan onto the Republicans.

The next day he stated on the floor of Congress: “I would like to apologize; I apologize to the dead and their families that we haven’t voted sooner to end this holocaust in America.”

The Republicans were outrage by his lack of decorum on the floor of the House. They demanded censure, but instead, the Congressman became a hero to liberals and his campaign contributions started flowing in. Congressman Grayson's remarks were premeditated and malicious compared to the spontaneity of Congressman Wilson's.

The Congressman sounded like a dim witted loud mouth from Da Bronx, but first impressions can be deceiving. He graduated summa cum laude, Phi Beta Kappa, from Harvard, received his law degree from Harvard law, and a masters from the Kennedy School of Government. Loud yes, stupid no.

Shortly after his election last November against the incumbent in a slightly Republican District, both he and a staffer stated Grayson “was the Congressman from Acorn.”

Coincidentally, Orlando is one of the cities Acorn was caught in voter registration fraud.

He became Acorn’s strongest supporter in Congress in the recent legislation to bar Acorn from receiving government funds. Even his fellow Democrats were appalled at the videos showing Acorn workers counseling an “an underage prostitute and pimp” on how to evade taxes.

Congressman Grayson, the brilliant lawyer, skewered a Republican on the constitutional bar against Bills of Attainder, eventhough he had to know that the bill was written in the time honored Congressional language of not specifically naming the proscribed company or individual, but using generic language that only applied to the one.

He referred to Republicans as “knuckle-dragging Neanderthals” in TV appearances.

Democrats remained happy because now they seemingly had a wingnut of their own to counter the Republicans Joe Wilson, Michelle Bachmann, Glen Beck, Sean Hannity, and Rush Limbaugh.

A distinction exists, the subtly of which escapes the strident New Yorker. His career has been spent telling truth to power, but his Republican opposites have simply been telling the truth.

His Democratic colleagues are learning they have a loose canyon on their hands, one who is suffering from diarrhea of the mouth. He referred to Linda Robertson, an aide to Fed Chair Ben Bernancke, as a “K Street whore.”

The Congressman’s office initially defended the statement, stating that Linda Robertson was a career lobbyist who “advocates for whatever she gets paid to promote.”

The National Organization of Women was outraged by the Congressman’s remarks.

A fellow Democrat, Congressman Anthony Wiener of New York, apologized for saying Grayson was “one fry short of a happy meal.”