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f/k/a archives . . . real opinions & real haiku

April 20, 2006

poor steve bainbridge

Filed under: pre-06-2006 — David Giacalone @ 10:48 pm


Maybe it’s a professor-thing.  Steve Bainbridge is so certain he’s

got an important new perspective on minimum wage laws that he

seems to be blind to reality and particularly allergic to dissent (at

least from me; see below).  Of course, he might just have a grant

proposal or law journal article in the pipeline.


                                                                      “soapBoxDudeF”

As Prof. B first stated in his post “Drum and the Minimum Wage

(April 11, 2006), and has now expanded upon, in a TCS column

titled “Minimum Behavior” (April 20, 2006), he believes that “the

minimum wage policy debate is one-sided” — proponents and

opponents of higher minimum wages have been focusing only “on

the effect of such a hike on the supply of jobs by employers.”

Steve believes that ““an equally important question” is


“what effect does a minimum wage hike have on the

demand for jobs by potential employees?”

To that insight, Prof. B. adds (as repeated at TCS) that:


“it is critical to recognize that the minimum wage debate

is mainly a debate about how much working teenagers

and twenty-somethings in their first job ought to make.”

 

[Hallelujah!  Sorta! Although it remains in his original post, Steve

has, to his credit, at least deleted the assertion “the minimum

wage debate is not really a debate about how much money the

working poor make” from his TCS column.  We happily take credit

for that change, and for saving Prof. B, from further embarrass-

ment over that sentence.  On the other hand, he added to the 

TCS piece that whether California should have a minimum wage

law at all is a “contested proposition.”   The “working poor”

better not count on Steve Bainbridge in their battle for better

wages.]


 

bainbridgePix

Steve’s big contribution to the minimum wage debate, therefore,

is to ask whether raising the wage is likely to cause more youths

to drop out of high school.  Steve believes that teens actually

will base their decision to stay in school on marginal differences

in the minimum wage. Thus, his legislative recommendation is

twofold:


(a) have a differential lower minimum wage for those who

have not completed a high school degree, [which] should

result in a lower dropout rate;” and

 

(b) have “An indexed minimum wage, which grew steadily

and no faster than inflation, [which] would avoid the potential

for biasing the choice between work and school” in the year

that a large increase is given to make up for eroded real

purchasing power.







         “spiltwine”

The f/k/a Gang (from Yabut and to ethicalEsq to Jack Cliente and

dagosan) wonder what Steve is smoking, while sipping his favorite

wine. 

 

As for the facts, which Prof. B. surely knows, as he has read at least

one BLS report, plus bainbridge speeds past the working poor,” our

post on the topic, dated April 17, 2006:


48% of the “young workers” Steve is talking about are 20 or older. 

The study he uses does not tell us how many of them are heads

of household or have dependent children, nor if they are in their

first jobs, as he asserts — nor whether they are trying to work

while studying for a better-paying career.  

 

Over 1.5 million hourly workers in the USA are over age 20 and

earn the minimum wage or less.

 

graphClimb

 

Raising the minimum wage has a ripple effect for million of workers

hovering just above the minimum.  Because 5.7 million of the working

poor in 2003 — 77% — are 25 or older, changes affect far more than 

teens in their first job (see Profile of the Working Poor, 2003,BLS,

March 2005)

As for reality, assuming rational, price-theory behavior by teens in California,

or any other state, when deciding whether to drop out of school, is the kind of

maddening Economic Man fetish that we decried last month in a blurb pointing 

to the article “The Marketplace of Perceptions(Harvard Magazine, March-April

2006).  If Prof. Bainbridge can locate a good course in Behavorial Economics,

we suggest he take it.[Marcus at Washington Syndrome seems to be in accord 

with our analysis.]   Until then, my response to an email from Steve last week,

seems solid:

 

Steve wrote: “The way I think about it is that I’m concerned with the kids. I want

kids to stay in school and maximize their lifetime incomes. What the heck’s wrong

with that?”

 

Your Editor replied:



We both agree that the kids are not making longterm-rational economic

decisions.  And, I don’t believe that their short-term financial decisions

are going to be made based on rationally looking at marginal differences

in the hourly wage available if they drop out of school early.  They’ll keep

dropping out and simply make less (I say that having had scores of adol-

escent clients as a Family Court Law Guardian, and hundreds of clients 

from poor and working-poor families).  Keeping their wage lower will make

them favored hirees by the Minimum Wage Employer, to the detriment of

others [probably older] who need those jobs.

 

                                                                                       “soapboxdude”

 

Meanwhile, your trumpeting of the lack of connection of [the Minimum Wage]

with the working poor gives the noisiest and most stingy and angry of your

readership one more excuse for railing against increases in the minimum age.

 

So, i do worry about overlooking the working poor in the MW debate.

Of course, Steve has a good point about getting better data on how changes in the

minimum wage affect the supply of willing workers.  But, I think his Religious Boss,

Pope Benedict XVI, has a better point when he says in Deus Caritas Est that (see




“It is true that the pursuit of justice must be a fundamental norm of the

State and that the aim of a just social order is to guarantee to each person,

according to the principle of subsidiarity, his share of the community’s goods.

erasing

 

I’d like to think that my post disagreeing with Prof. B’s approach to the minimum

wage made a few points worth pondering, too.   Apparently, the facts or the tone

were so threatening or so reprehensible to Steve, that he has now twice removed

Trackbacks citations for my posts bainbridge speeds past the working poor and


minimum wages.  [Trackbacks tell you that another weblog has cited to a post.]

 

To be honest, that seems rather small-minded.  Steve is the famous weblogging

professor; I’m the David to his Goliath.  He has trumpeted both his credentials in

the fields of law and economics and his strong Catholic faith.  If he can’t handle his

readers finding a discussion that questions his economic reasoning and the faith–

fulness of his policy proposals to the teachings of his Church, perhaps Prof. B,

should give up his pretensions of being a “public intellectual,” and especially a

Catholic public intellectual.


tiny check By the way, I’d be interested in hearing from other  erasingSF

webloggers and weblog readers on the topic of censored

Trackback pings.  Clearly, spam can and should be re-

moved (I only wish it were quicker to do).  Also, every

weblog owner has the “right” to remove Trackbacks, but

what does that tell us about his or her desire for engaging

in an open discussion?  When would you approve or disapprove

of deleting Trackbacks?

 

trackback update (April 23, 2006):  This morning, I rediscovered

an ethicalEsq post from Feb. 2004, Disappeared from Law-Blog

Cyberspace, where we wrote: “I’ve recently discovered a big difference

between lawyer weblogs that were created primarily as marketing tools

and those written for the sheer joy of sharing ideas and information, or

presenting a point of view:  The marketing and reputation-oriented lawyer

weblogs appear to remove Comments, pings and blogroll listings that might

make their ‘product’ look less valuable or useful.  Of course, a lot of them

simply don’t allow unfiltered comments or pings.”  At the time, Kevin

O’Keefe disagreed with my dichotomy of types of lawyer weblogs.  In

retrospect, my reply Comment to Kevin might have been a bit naive about

law professors, when I wrote:


Lawyers and law professors who start a weblog primarly

to share ideas and expertise,  or promote a cause, and

to have a conversation with others, seem far more likely

to “allow” different viewpoints to be accessed through 

their site and to say what’s really on their minds.   Lawyers

whose primary purpose is marketing their services (no matter

how much passion  and expertise they show) seem far more

likely to need to filter what can be seen or accessed on their

e-blawg. 

 

“slingShot”

 


 



the woodpecker works
one spot…
all through sunset

 

 

 

 





fresh straw for the garden–
about ten servants
at work

 

 

 


graphClimbN

 

 


even the poor
workhorses of Edo sleep…
in mosquito nets!

 

 

 

 

begging hermits clamor
in their night work…
coolness at the gate

 

 

 

 





growing old–
by the hearth’s light
piecework

 

Issa, translated by David G. Lanoue

                                                                

                                                                                                              JesusLibS

                                                                                               “Jesus Was a Liberal

 

 

just peggy

Filed under: pre-06-2006 — David Giacalone @ 2:48 pm

– after too many paragraphs and too few haiku,

peggy lyles, just peggy lyles:

 

 

 


Moon

and melon cooling

with us in the stream

 

 

 

 

“moonWaxCres”

 

 








I shake the vase —

a bouquet of red roses

finds its shape

 

 

 

 

 

A doe’s leap

darkens the oyster shell road:

twilight

 

 

 

 

 








a lantern
in the pothole–
moonset

 

peggy lyles from The Haiku Anthology (edited by Cor van den Heuvel, 3rd Ed.,1999) 

except: “a lantern” – Roadrunner Haiku Journal (VI:1, Feb. 2006)

 

                                                                                                                                                       river house flip

 

April 19, 2006

Catholic Conservatives Ignore Benedict on Political “Caritas”

Filed under: pre-06-2006 — David Giacalone @ 11:32 pm

Pope Benedict XVI has apparently disappointed America’s “conservative” Catholics by not coming out swinging on their favorite issues. (Washington Post, “Pope’s 1st Year Lacks An Ideological Edge,” by Alan Cooperman; npr, “New Pope Surprises American Catholics,” by Greg Allen; April 19, 2006). Well, I’ve finally read Benedict’s first encyclical, “Deus Caritas Est“(“God Is Love”), dated Dec. 25, 2005, and I’m pretty sure America’s Catholic conservatives are disappointing their Pope.

BenedictAmerica Pope Benedict XVI cover of America (March 13, 2006)

Ever since learning late last year that the Papal Letter, Deus Caritas Est [“DCE”], discusses “caritas” or “charity,” and the relationship between justice and charity, I’ve been waiting for conservative Catholic webloggers to analyze DCE — hoping to see how Catholic teachings affect their stance on important public policy issues. I’m especially interested, because prominent law professors — including Steve Bainbridge, MoJ‘s Rick Garnett, and Deans Thomas Menger (St. Thomas Law School) and Mark Sargent (Villanove Law) — have insisted that we need a revival of serious that is “unapologetically and actively committed to discerning and expressing distinctively Catholic approaches to law and lawyering.” (our prior post)

Call it an apostate’s natural suspicion, but the lack of discussion by conservative Catholics (and Catholic conservatives) — of DCE made me suspect that the Encyclical might have called for a bit too much caritas in the public sphere, or too high a level of commitment to charitable politcal activism by laypeople, for their liking.


What pushed me into actually finding and reading the DCE text, in fact, was Prof. Bainbridge’s discussion last week about the minimum wage, in response to was an article by Kevin Drum at Washington Monthly, dated April 11, 2006.) (our prior post) Steve’s thoughts were endorsed by Volokh Conspiracy‘s Jim Lindgren. At Prof. B‘s, VC, and WM, there were dozen of Comments, and the basic tone was so uncharitable and unloving — so miserly and spiteful — regarding the poor in America, that I decided it was time to see if Benedict XVI could help me figure out the issues. What the Pope had to say made my suspicions about a Catholic conservative cover-up appear quite justified.

Is Deus Caritas Est relevant to debates on issues such as minimum wage laws? I believe it absolutely is — for the Catholic faithful and for those who see in the core teachings of Jesus a universal ethics of human connection, interdependence, and responsibility. In summarizing Catholic teaching on caritas and justice, on the roles of both the Church hierarchy and the faithful, the Encyclical calls for an active,

engaged commitment among the laity to improve the plight of the poor — not merely through Church institutions and personal acts of charity, but also by using political processes in the public forum. (Such a “distinctively Catholic approach to law and lawyering” is one that Your Editor would welcome at American law schools.)

BenedictAmerica Here’s what I discovered in Benedict XVI’s first encyclical letter, Deus Caritas Est:

The Letter first addresses at length the subject of God as love. Benedict eventually turns to the topic of “Jesus Christ – the incarnate love of God,” and explains that Jesus has “truly united” love of God and love of neighbor. Benedict explains [para. 16], for example, that through the parable of the Good Samaritan:

“The concept of “neighbour” is now universalized, yet it remains concrete. Despite being extended to all mankind, it is not reduced to a generic, abstract and undemanding expression of love, but calls for my own practical commitment here and now. The Church has the duty to interpret ever anew this relationship between near and far with regard to the actual daily life of her members.”

Benedict closes the section with this reminder:

“Lastly, we should especially mention the great parable of the Last Judgement (cf. Mt 25:31-46), in which love becomes the criterion for the definitive decision about a human life’s worth or lack thereof. Jesus identifies himself with those in need, with the hungry, the thirsty, the stranger, the naked, the sick and those in prison. “As you did it to one of the least of these my brethren, you did it to me” (Mt 25:40). Love of God and love of neighbour have become one: in the least of the brethren we find Jesus himself, and in Jesus we find God.”

JesusMoney jesus/moneychangers

Before you protest that this pious love-your-neighbor stuff belongs in the context of each Catholic’s personal life, please read on.

Part II of the Letter, titled “Caritas” begins by describing the centrality of charity to the essence of the Church. It then attempts to clarify the relationship between charity and justice. After dismissing the Marxist rejection of charity, Benedict nevertheless states [para. 26] (emphases added):

“It is true that the pursuit of justice must be a fundamental norm of the State and that the aim of a just social order is to guarantee to each person, according to the principle of subsidiarity, his share of the community’s goods. This has always been emphasized by Christian teaching on the State and by the Church’s social doctrine.

“Historically, the issue of the just ordering of the collectivity had taken a new dimension with the industrialization of society in the nineteenth century. The rise of modern industry caused the old social structures to collapse, while the growth of a class of salaried workers provoked radical changes in the fabric of society. The relationship between capital and labour now became the decisive issue—an issue which in that form was previously unknown. Capital and the means of production were now the new source of power which, concentrated in the hands of a few, led to the suppression of the rights of the working classes, against which they had to rebel.”

After “admitt[ing] that the Church’s leadership was slow to realize that the issue of the just structuring of society needed to be approached in a new way,” the Letter notes that the illusion of a Marxist panacea for injustice has vanished. However [para 27]:

“In today’s complex situation, not least because of the growth of a globalized economy, the Church’s social doctrine has become a set of fundamental guidelines offering approaches that are valid even beyond the confines of the Church: in the face of ongoing development these guidelines need to be addressed in the context of dialogue with all those seriously concerned for humanity and for the world in which we live.”

An editorial in Catholic Weekly, “A More Excellent Way” (Feb. 13, 2006), explains the Church’s role “with respect to justice”:

JesusLibSJesus Was a Liberal

“The letter also makes a familiar and necessary distinction between the charitable work of the church and that of partisan, ideological movements. It affirms that justice is primarily the work of the state.

With respect to justice, the church’s role is that of teacher and critic. It hands on its social doctrine, guides consciences and helps identify the goals of authentic justice in society. ‘The church is duty-bound to offer, through the purification of reason and through ethical formation, her own specific contributions towards understanding the requirements of justice and achieving them politically,” Pope Benedict writes.

While not replacing the state, ‘she cannot and must not remain on the sidelines in the fight for justice.’

A similar explanation can be found in Greg Sisk’s posting at Mirror of Justice. The curious mind has to be wondering, “Well, if the Church’s insitutional role in achieving justice — defined by Benedict as “guarantee[ing] to each person, according to the principle of subsidiarity, his share of the community’s goods” — is indirect, who and how will the just society be achieved?

Benedict tells us the Church wants “dialogue with all those seriously concerned for humanity and for the world in which we live.” Naturally, he also expects that it is individual Catholics who will be the most receptive, who will have the most highly-enlightened consciences, and will in the forefront in securing justice and social caritas.

scales rich poor How do I know? Not because any conservative weblogger has told me! I know because Benedict tells us explicitly in Deus Caritas Est:

“The direct duty to work for a just ordering of society, on the other hand, is proper to the lay faithful. As citizens of the State, they are called to take part in public life in a personal capacity. So they cannot relinquish their participation “in the many different economic, social, legislative, administrative and cultural areas, which are intended to promote organically and institutionally the common good.” [21] The mission of the lay faithful is therefore to configure social life correctly, respecting its legitimate autonomy and cooperating with other citizens according to their respective competences and fulfilling their own responsibility. [22] Even if the specific expressions of ecclesial charity can never be confused with the activity of the State, it still remains true that charity must animate the entire lives of the lay faithful and therefore also their political activity, lived as “social charity”.[23] (emphases added)

I dare you to find either the sentence “The direct duty to work for a just ordering of society, on the other hand, is proper to the lay faithful,” or the clause “charity must animate the entire lives of the lay faithful and therefore also their political activity, lived as ‘social charity,'” in any of the political, economic, or religious commentary and punditry of the leading conservative Catholic webloggers. Indeed, you won’t find them on any obscure weblogs either (except for the Edmund Rice Justice Bulletin, which looks a little lefty to me).

JesusLibSN You can learn more about the Catholic notion of “social charity,” and “social justice” here. For example, the Catholic Catechism tells us that “The principle of solidarity, also articulated in terms of “friendship” or “social charity,” is a direct demand of human and Christian brotherhood.” Also, “Solidarity is manifested in the first place by the distribution of goods and remuneration for work.” And, “The equal dignity of human persons requires the effort to reduce excessive social and economic inequalities,” because economic “differences encourage and often oblige persons to practice generosity, kindness, and sharing of goods.”

JesusMoney Of course, any Catholic conservatives (or libertarians) who have read this far are already shaking their heads and thinking: (a) true justice can only come from the free market and its economic principles; (b) charity is a private matter and only the smallest government can be a just government; (c) the American form of government is as just as humankind will ever achieve, and doesn’t need more tinkering — especially of the welfare-state variety; or (d) no matter what you say, it’s immoral to take/tax money that I earn and redistribute it to poor people.

Pope Benedict anticipated such reactions. In DCE, Benedict therefore reminds the Faithful:

tiny check The just ordering of society and the State is a central responsibility of politics. As Augustine once said, a State which is not governed according to justice would be just a bunch of thieves. [para 28a]

tiny check Justice is both the aim and the intrinsic criterion of all politics. Politics is more than a mere mechanism for defining the rules of public life: its origin and its goal are found in justice, which by its very nature has to do with ethics… The problem [what justice is] is one of practical reason; but if reason is to be exercised properly, it must undergo constant purification, since it can never be completely free of the danger of a certain ethical blindness caused by the dazzling effect of power and special interests. [para 28a]

Benedict16

tiny check Love—caritas—will always prove necessary, even in the most just society. There is no ordering of the State so just that it can eliminate the need for a service of love. Whoever wants to eliminate love is preparing to eliminate man as such. There will always be suffering which cries out for consolation and help. There will always be loneliness. There will always be situations of material need where help in the form of concrete love of neighbour is indispensable.

tiny check The Church . . . has to play her part through rational argument and she has to reawaken the spiritual energy without which justice, which always demands sacrifice, cannot prevail and prosper.

tiny check [The] Encyclical Ut Unum Sint emphasized that the building of a better world requires Christians to speak with a united voice in working to inculcate “respect for the rights and needs of everyone, especially the poor, the lowly and the defenceless.” [para. 30]

tiny check Christian charitable activity must be independent of parties and ideologies. It is not a means of changing the world ideologically, and it is not at the service of worldly stratagems, but it is a way of making present here and now the love which man always needs.

tiny check The modern age, particularly from the nineteenth century on, has been dominated by various versions of a philosophy of progress whose most radical form is Marxism. Part of Marxist strategy is the theory of impoverishment: in a situation of unjust power, it is claimed, anyone who engages in charitable initiatives is actually serving that unjust system, making it appear at least to some extent tolerable. . . . What we have here, though, is really an inhuman philosophy. People of the present are sacrificed to the moloch of the future—a future whose effective realization is at best doubtful.

Benedict16 Perhaps most tellingly, Benedict tells ideologues of the Left and the Right: “One does not make the world more human by refusing to act humanely here and now. We contribute to a better world only by personally doing good now, with full commitment and wherever we have the opportunity, independently of partisan strategies and programmes.” [para. 31b]

That’s strong stuff. It seems directly relevant to political issues ranging from the level of the minimum wage, and the creation of universal health care rights, to the treatment of illegal (but otherwise law-abiding) immigrants.

When it comes to issues of social justice — and social caritasit seems clear that Jesus was indeed a Liberal. Living past 30 didn’t change that, and I’m sure the past two millennia haven’t either. The Sermon on the Mount, with its Eight Beatitudes, deserves the full respect of stare decisis. Jesus didn’t have a means test when he distributed the loaves and fishes. When the multitudes were hungry, He fed them — he didn’t tell them to figure out for themselves how to fish, or how to swim.

Conservative Catholics like First Things’ Richard John Neuhaus may be disappointed to see Benedict XVI playing the role of pastor now, rather than “enforcer.” But, even old cynics like myself believe that The Job often dictates the role that an incumbent must play. No job calls for the love of pastor and shepherd — and conscience for the faithful — like the papacy. I just hope the faithful are listening to Deus Caritas Est and will choose to live up to its call for political action in the name of social justice and charity.

afterthought (April 20): When it comes to feeding (or clothing, sheltering, healing, educating) the poor, the working poor, or even His more-comfortable “neighbors,” Christ was no Cafeteria Catholic. Can we say the same for America’s Catholic conservatives? Are they disappointing Jesus and His current Vicar, Benedict XVI? Are they leaving the social-justice heavy lifting to the non-religious (like myself), who they so often claim can have no solid moral foundation, and to the Liberal Catholics, who they so often deride as not really being Catholic at all?

TaxWhinerTUCummingsS larger Albany Times Union/Barbara Cummings – see our most-recent discussion of tax whiners:
ghosts of tax days past (Scrooge was surely a tax-whiner)

tiny check From the early 19th Century, Japanese Master haijin Kobayashi Issa offers a few closing haiku:


they curse the first snow
like it’s a beggar…
rest stop


in vain
the baby bird begs…
a stepchild



Great Japan!
even a beggar’s house
has a summer banne

even birds
make their nests…
beggars under the bridge

autumn wind–
a beggar looking
sizes me up



they must have kids–
bridge beggars
calling fireflies


deutzia tree–
among gods and beggars
it blooms


a pretty kite soars
a beggar’s shack
below


Issa, translated by David G. Lanoue


BenedictAmericaF


dis-n-dat from your decider-in-chief

Filed under: pre-06-2006 — David Giacalone @ 12:44 am

It’s way too easy and way too tacky to be constantly poking

fun at George W. Bush’s awkward relationship with the English

language.  Nonetheless, his saying, this morning: 

 

        “But I am the decider. And I decide what is best

 

— regarding the future of Donald Rumsfeld as Secretary of Defense —

did leave me shaking my head.  (see VoA.com & WaPo, April 18, 2006)

 

“Blackboard ABCN”

 

Of course, being Decider-in-Chief is my role here at f/k/a, including

decidering which tangents to go off on.  The President’s line made

me think of a sentence that I have always associated with pundit



If you can’t say it clearly, you can’t think it clearly.”

                                                                                      cover  “statecraftWill”

 

Since the only George Will book I have ever read was his small,


I thought I’d try to find the quote and its context in that book.  Alas, 

Amazon.com only has an audio version, so I couldn’t peek inside,

and I couldn’t find the quote through Google. [I did, however, locate

an article from Smart Leader Mag-ezine,  by Nelson Searcy & Chad

Hall, Aug. 2000, that includes this quote: “Verbalize clearly – if you

can’t say it clearly, you don’t know it completely.”  Scary, huh?) 

 

My searching was not totally fruitless.  Although I very often find myself

disagreeing with George Will, in his column or Sunday’s on ABC, here

are a few quotations from Statecraft as Soulcraft that are well worth

pondering:


“Statecraft is soulcraft. Just as all education is moral education

because learning conditions conduct, much legislation is moral

legislation because it conditions the action and the thought of

the nation in broad and important spheres of life.”

 

“Politics should share one purpose with religion: the steady eman-

cipation of the individual through the education of his passions.”

 

StatecraftWillN

 

“Freedom is not only the absence of external restraints.

It is also the absence of irresistible internal compulsions,

unmanageable passion, and uncensorable appetites.”


“The essence of childishness is an inability to imagine

an incompatibility between one’s appetite and the world.

Growing up involves, above all, a conscious effort to

conform one’s appetites to a crowded world.”

“All politics takes place on a slippery slope. The most important

four words in politics are ‘up to a point’.”

Finally, Will is quoted by Richard Reeves in A Ford, Not a Lincoln, ch. 1

(1975) as saying the following apt sentence:


A politician’s words reveal less about what he thinks about his

subject than what he thinks about his audience.”

 

 


“tinyredcheck”  Our haijin patriot ed markowski is not reluctant to

offer senryu focusing on George W. Bush’s words:

 

 




 

               president’s speech

                  not once

                       does god

                           come to mind 

                                 

 

 

 

 

 






   remedial reading class

        an empty space

    where the W should be

 

 

 

 

 

                        “obscufation”

                           the american president

                             defines his agenda

 

 


    – did you miss our post markowski: in your ear & “at the ballgame” ?

 

 

 

                                                                                               bully2
 

tiny check 
Last Saturday, we had a blurb about a bully in Schenectady who

allegedly has used several internet technologies to stalk his estranged wife.

[scroll to the blurb on David R. Monty, who got his wife fired with his haras-

sing email, and even set up a weblog pretending to be her.]  Today, NYT has

the worrisome article. “A Sinister Web Entraps Victims of Cyberstalkers,” by

Tom Zeller, Jr., April 17, 2006.  The article does mention two websites that

offer assistance to persons being stalked or otherwise harassed by persons

using the internet.  See WiredSafety.org and Working to Halt Online Abuse.

 

 

“UKG”  My British friends surely noticed a long time ago that the UK looks a lot
like the Easter Bunny.  For me, it was a new revelation today.  I happened upon
that discovery, when I checked the f/k/a archive this afternoon, looking for our
post ukku celebrates the coming of spring with haiku.  In that post we trumpeted:


Starting today, February 13, 2006, a new group haiku weblog will be
launched, to celebrate Winter’s turning into Spring.

Formed by our Honored Guest Matt Morden and haijin Alison Williams, the group
grew to twenty-two haiku poets and graphic artists, including dagosan.   After two
months writing our short poems chronicling and cajoling the coming of Spring, and
commentng back and forth, and to and fro, ukku spring haiku will stop adding new
poems at midnight Pacific Coast Tme tonight.   The poems and images will still be
there, so you are urged to look and linger.









farewell picnic —
wind blows the blossoms
off the dogwoods

 

       david giacalone, ukku spring haiku

 

ukku spring was my first attempt at participating in a group weblog, and it was an
enjoyable experience — introducing me to new artists, helping to know familiar ones
better, and egging me on to produce more quality one-breath poetry.  To celebrate,
I put together an online brochure, today, welcoming Spring: ukku haiku (2006), which
you are invited to print out for any non-commercial purpose.   It contains  my complete
ukku spring output (19 poems, clunkers and all), and is set up to be a printable, two-
sided, three-fold brochure.


“UKN”  Here are two hew haiku by Morden Haiku‘s Matt Morden, from
ukku haiku spring:
 










 





spring dusk
an old man ponders
on a
pea stick

 


ukku spring haiku, April 17, 2006

 

 






cold spring
spots of paint
on unopened tulips


ukku spring haiku, April 18, 2006



 

“THNLogoG”  We told you yesterday about the release of the

first annual edition of The Heron’s Nest printed journal (Vol. VII,

2005).  It contains around 500 haiku, including this pair from


 

 

 






women’s refuge —
new light finds the blue
in painted glass

 

 

 

 

 

January sales
a clown’s car steals
my parking space

 

 


women’s refuge” (March 2005)

January sales” (June 2005)

 

tiny check  You would also be enjoying this trio from our north-country

Honored Guest haijin friend, Alice Frampton:

 






“snowflakeSN”  “snowflakeSN”

 


dusting of snow
all the lights on
in the daycare

 

 

 

 

 

mosquitoes
the slap of a beaver tail
at twilight

 

 

 

 






dead calf
a mother licks
the wind  

 





Alice Frampton from The Heron’s Nest (Vol. VII, 2005)

dead calf” & “mosquitos” – The Heron’s Nest (Sept. 2005)

dusting of snow” – March 2005)             

 

                                                                                             “Blackboard ABC”

 

                                                                                                               

April 17, 2006

bainbridge speeds past the working poor

Filed under: pre-06-2006 — David Giacalone @ 9:33 pm

Maybe it takes a cynic to see the irony.  Our Prof. Yabut was bemused
that f/k/a’s friendly weblogging foil, the vociferously-conservative Catholic,
Steven Bainbridge, opined within the past week (“Holy Week”) both on the
relationship between the miniumum wage and the working poor (basically,
none, he says) and on the relationship between cars and one’s religion/
spirituality or politics (a bit murky). Meanwhile, he also confessed to AutoMuse
his dual lust for sinfully expensive cars and “driv[ing] fast on curvy roads (like
Malibu Canyon or Mulholland Drive)” [via Blawg Review #53].
tiny check We don’t know if Steve’s Confessor is paying attention to his socially irresponsible speeding habits, but you can be darn sure a plaintiff’s p/i lawyer will be doing so, should Prof. B. ever be involved in a vehicular crash along Mulholland Drive, or any- where else.
Tonight, we’re not going to psychoanalyze or sermonize over Steve’s fixation

on Porshe 911’s and similar occasions of sin.  But, we do want to focus on his April 11 post “Drum on the Miniumum Wage,” which had as its immediate provocation Kevin Drum‘s article at Washington Monthly, dated April 11, 2006). Volokh Conspiracy‘s Jim Lindgren immediately endorsed Steve’s position.  We dissent on the facts. the law and the equities.

Prof. B. has joked that his ideas often provoke me (an acknowledged agnostic and ex-Catholic) into asking just what Jesus might think/do/drive.  In his minimum wage post, he cavalierly concludes — based on a 2002 The federal Bureau of Labor Statistics Report —  that:
“the minimum wage debate is not really a debate about how much money the working poor make.  Instead, it is mainly a debate about how much working teenagers and twenty somethings in their first job ought to make.” (emphasis added)
The BLS Report states that “Minimum wage workers tend to be young. About
half of workers earning $5.15 or less were under age 25, and slightly more than
one-fourth were age 16-19.”  It also says that about 2% of workers over 25 earned
the minimum wage.  This leads Prof. B to pontificate:
“Sympathy for the working poor thus ought not to be a driver of minimum wage debates.”
And, it leads me to wonder what Jesus’ Statistician would do with the same

numbers. You see:

graphClimb
48% of the “young workers” Steve is talking about are 20 or older.
The study he uses does not tell us how many of them are heads of
household or have dependent children, nor if they are in their first
jobs, as Steve suggests — nor whether they are trying to work while
studying for a better-paying career.   The “teenagers” in the BLS
study are 16 to 19, and they make up 28% of all of the hourly-wage
workers who earn the fedeal minimum wage or less.
Steve doesn’t give actual numbers of human beings, but the BLS
does. There were 2.2 million hourly-wage Americans earning the
federal minimum of $5.15 or less in the 2002 report — with 1.6 million
of them making less than the minimum.  605,000 Americans under
age 20 were making the minimum or less. Over 1.5 million workers
were over age 20.  A million of those workers were over 25, and
99,000 were over 65 years of age.
More important, though, it seems that Prof. B’s Ivory Tower is so high (or
he’s driving so fast), he has failed to notice that:
graphClimbN
(1) Being above the minimum wage is not exactly an automatic
ticket out of the “working poor” category.  In the BLS Report
Profile of the Working Poor, 2003” (March 2005), we learn that
7.4 million persons were classified as “working poor” in 2003 —
that means that they “spent at least 27 weeks in the labor force,”
but still had “income below the official poverty threshold.”  The
working poor made up 5.3% of the American workforce.
If age matters, you should know that more than seven million of
the working poor were over 20 years old.  If twenty-five is your
magic number, then consider that 5.7 million of the working poor —
77% — are 25 or older.  [Table 2]
tiny check If you were making the federal minimum wage in 2003,
and managed to work 40 hours per week for the full
52 weeks (you probably didn’t get any paid vacation),
your annual income was $10,712. (by comparison,
the average annual salary for all covered workers
in 2002 was $36,764)  [We have no figures on the
average income of Porsche 911 drivers, but surely
someone out there does.]
spiltWineF
According to BLS, “The actual poverty thresholds vary
in accordance with the makeup of the family. In 2003,
the average poverty threshold for a family of four was
$18,810; . . . and for an unrelated individual aged 65 or
older, it was $8,825.”
(2)  Dan Glick of Sick Transit explains (and even I figured out),
that the “only 2%!” of the workforce argument misses that
“most employers – even minimum-wage employers – give
periodic raises. A retail worker making $6 (or for that matter,
$5.50 or even $5.16) an hour won’t be counted in those statistics.
“Raising the minimum wage, however, would still cause an increase in those workers’ wages. . . . [A]ny employer large enough to have formal pay grades would also have to raise the next couple of pay grades above minimum to maintain a reasonable structure.
spiltWine
As Glick concludes, there really isn’t much room for the claim that the
minimum wage is irrelevant to the welfare of the working poor.  Prof. B’s
approach gives Ivory Towers, and fast cars, a bad name.  His massaging
of the numbers to make a problem regarding the poor in America seem
to disappear (or to be irrelevant to our political process) also has me won-
dering about things such as Catholic Legal Theory (at least in its conser-
vative political or economic manifestation) and its relationship to Pope
Benedict’s first Encyclical —  “Deus Caritas Est” (“God Is Love”), dated
Dec. 25, 2005.  That is a topic for another, imminent day.
update (April 20, 2006): For our promised follow-up on Deus Caritas Est, see Catholic Conservatives Ignore Benedict on Political “Caritas” (April 19, 2006); for more on minimum wage, see our post poor steve bainbridge (April 20, 2006), where you’ll learn that Steve continues his focus on teens and the minimum wage, and keep removing Trackbacks from f/k/a on these topics.
potluck
Lawtigation? If you haven’t read Will Wilson’s post at AG Watch on
Lawtigation, you should click over there.  Speaking of certain activity
in Massachusetts, Will says:
“Good, good. If one can’t go back in time or make laws with foresight
of future concerns, ex pending facto lawtigation is the next best option.
Let the AG start suing and then work out laws that apply to the lawsuits.
Can’t miss. Best litigation strategy ever.
“THNLogoG”  The first annual edition of The Heron’s Nest Journal arrived at my
frontdoor today.  It has all of the haiku (about 500 of them) selected for the online
version of The Heron’s Nest in 2005. (at $15, including postage, it is a great value)
Flipping to the Index, I realized that virtually all of our Honored Guest poets are
represented in the volume.   In particular, tonight, I want to point out that there are
six haiku by Gary Hotham in the volume.  Here they are.  You can find them, respec-
tively at these links: : 4#3, 5#6, 9#8, 1#4, 2#2, and 4#1.
day at the zoo —
the elephant’s shadow
in a small place
warm night —
a soda machine rejects
my coin
“THNLogoF”
yesterday’s snow —
the dog’s path
one way
under us —
water that roared
in the waterfall

on every step
dead cicadas —
a day’s list of things to do

the dog takes a sniff —
snow that didn’t go
with the first warm day
gary hotham from The Heron’s Nest (Vol. VII, 2005)
“Dog neg”

April 16, 2006

easter memories reprised

Filed under: pre-06-2006 — David Giacalone @ 12:44 am

Revived and expanded from last Easter  (aren’t we all?):

 

4 A.M., Easter —
chocolate mustaches
on father and son

 

…… by dagosan

1952: the giacalone sibs show off clothes and baskets (the 2-year-old dagosan beams, on the R) Click for original photo.

dadEaster54s 1954: dad joins the gang for a fashion show

original photo

Easter lily

on the shut-in’s coffee table. . .

fingers over each petal

 

Randy Brooks – from School’s Out (Press Here, 1999)

momEaster54s – and don’t forget mom!
original photo

more gray heads

at the easter meal —

withered cattails

 

dagosan

 

 

“DiPEaster95s” 1995: easter in Rochester with Donna and the kids

original photo

 


replacing peeps
purloined from the kids
pink fingers

dagosan

 

 

 

JamesEggL 2004: good egg James is holding on

original photo

 

 

sugar crash:
easter joy
sinks with the sun

 

dagosan

 

2005: Lissa’s waiting for Easter and Spring “lissaBench”

original photo

 

 

 

EasterEgg We hope you make some special holiday memories today —

or already have earlier this week..










egg shell haiku




easter snow


a piece of egg shell


in the sandwich







the road home


swallows fly out


both sides of the bridge





trikeN










dry leaves


trapped in the spokes


grandpa’s bike



DeVar Dahl
from A Piece of Egg Shell (Magpie Press, 2004)



her chocolate breath
mingles with mine —
easter sunset

 

dagosan

Simply Haiku (Winter 2005)

easter monday:

three baskets

late but full

 

 

dagosan

EggColoring

April 15, 2006

ghosts of tax days past (Scrooge was surely a tax-whiner)

Filed under: pre-06-2006 — David Giacalone @ 11:47 pm

Heads-up: If you think discovery of the Judas Gospel was exciting, wait until

we all get our hands on the newly-found An Easter Carol by Charles Dickens.

All the details have not yet been released, because the previously unknown

text has apparently been stolen by a rightwing, Hendricksonian anti-tax group.

ScroogeStewart

A Christmas Carol (1999) (Patrick Stewart)

Here’s what f/k/a‘s investigatory team has learned so far:

tiny check An Easter Carol was apparently drafted by Dickens

before the release of his A Christmas Carol, but an

antitaxation publisher refused to print it.

tiny check Ebenezer Scrooge is also the protagonist of An Easter

Carol. He is, of course, a dreadful miser, and — to use

a term coined by Your Editor — a tax-whiner.

Scrooge (1970) (Albert Finney) ScroogeFinney

The discovered text has a plot remarkedly

similar to A Christmas Carol, with Scrooge

uttering his famous quote about Easter, rather

than Christmas: “a time for finding yourself a

year older, and not an hour richer”.

tiny check Scrooge is again visited by three Ghosts, and

has a total reformation — much of it due to the Easter

message of love and sacrifice for all.

ScroogeScott A Christmas Carol (1984) (George C. Scott)

Again, the depiction of Ignorance and

Want moves Scrooge greatly, and he

vows to help raise public funds to assure

excellent education and a basic safety-net

for all of his fellow Britains. Tiny Tim’s death

also turns Scrooge into an advocate of universal

health care.

We hope that Prof. Maule and Prof. Carron will help us learn more about this Dickensian treasure. Until then, you might want to peruse some of f/kaethicalEsq‘s Tax Day Postings Past, which are in the spirit of An Easter Carol:

TaxWhinerTUCummingsS larger

Albany Times Union/Barbara Cummings

Trying to Tolerate Tax-Whiners (2003) [good stuff!]

Tax-Whiner-Free Zone (2004)

taxes and sycophants in athens (2005)

TaxWhinerTUs larger

tiny check Also above is an image of Your Editor’s first Tax-Whiner

op/ed, from the Albany Times Union (“The Annual Whine

Festival,” March 31, 1998, B1)

second day
of the New Year:
taxes arrive

………………………….  Tom Clausen

from Homework (2000)

tax audit —
dents in damp grass
from the mower’s wheels

………………………………….  michael dylan welch

The Heron’s Nest (July 2004)

tax day

tax day —
a battery-powered breeze
stirs the desk chimes

…………………… by Billie Wilson from The Heron’s Nest

ScroogedMurray Scrooged (1998) (Dan Murray)

what did lawyer-felon Capoccia give up for Lent? [twerpEsq update]

Filed under: pre-06-2006,Schenectady Synecdoche — David Giacalone @ 11:45 am

The Good News for convicted lawyer felons: Freely share your
legal expertise while incarcerated and you will be (a) very
popular with fellow inmates and (b) the recipient of many
bartered small luxuries (e.g., strawberry cereal bar, sandals,
a set of headphones, a pillow), which you will appreciate far
more than in your heyday scamming millions from clients.

tiny check Since your “clients” have no money to pay the
legal fees of private lawyers on the outside, you
won’t even have to worry about the “consumer
protection” — Unauthorized Practicezealots
at the state bar coming after your disbarred butt.


Capoccia1999
FBP inmate 06-00370



The Bad News for convicted lawyer felons: Besides losing
your freedom, you eat far too much “mystery meat,” even
though you sent in an order for “aglio con olio, broccoli rabe
and escarole salad.”

at the end of Lent the taste of you
Jim Kacian from Taboo Haiku

The Albany Times Union offers an interesting look at the prison
life of Andrew F. Capoccia, “once a fierce litigator who earned
millions from personal-injury cases before being sent off to prison
in February. “Once a big litigator; now works for food: Inmate Andrew
F. Capoccia trades legal advice for small luxuries,” by Alan Wechsler,
April 13, 2006. (We’ve chronicled Capoccia antics with his debt-reduc-
tion scam, and the gross failure of NYS bar grievance committees to
protect his clients, frequently at this weblog — see, especially, this essay.)

The source of the article is:

“a 16-page letter to a friend that was provided to the Times Union.
The prison memoir, sent last month, is penned in tone of a man who has accepted his sentence of more than 15 years with a keen sense of irony and dark humor.”

It’s well worth a deterrent look, but hurry, as the TU only keeps its content
available for free online for 7 days.

jailbird neg

raindropS Honored Guest Jim Kacian has always
been a free man:

the place i can’t reach itches your absence


passing the jug
the warmth
of many hands





first page

of the new journal

untrammeled snow


raindropS raindropS





sharp wind

the metal gate bangs shut

bangs shut









sundown —


one dog starts


them all





Jim Kacian from from Presents of Mind (1996)


except:


“sundown” – Upstate Dim Sum 2001/II


“the place” – Simply Haiku (2003)




potluck



“emptypocketsS” A little more local-area law news. Experienced litigator and appellate


advocate L. John Van Norden has been Deputy Corporation Counsel for the City of


Schenectady, NY, the past two years (and carrying most of the load for his boss,


Alfred Goldberger). He’s also an avid member of the Adirondack Forty-Sixers. John


had worked for the City for eleven years prior to entering private practice in 2001. He


left because he disagreed with the City’s policy of defending every police officer accused


of misbehavior.



The Gazette reports today that John is looking for a new job, after getting caught in the


midst of salary squabbling aimed primarily at our Mayor, which has lost him a promised


pay hike. (Daily Gazette, “City’s Counsel Seeking New Job,” April 15, 2006). What


I wanted to point out is that John made only $45,000 in salary for his fulltime job for


2005. In order to get a raise to $70,000 for 2006, his boss allowed his own Corporation


Counsel salary to be cut from $70,000 to $50,000, as of Jan. 1, 2006. Those who think


that only losers take municipal law jobs, and/or that all lawyers are overpaid, should


take a look at John Van Norden’s record. We wish him the best as he looks for a new


position.



bully flip



Another Schenectady story that may be of interest to Web denizens is the arrest of


David R. Monty, who is accused of stalking his estranged wife using several techniques


involving the internet:



– Sending harassing emails to his wife and her employer


and friends; they placed the wife in fear of bodily harm


and caused her employer of eight years (a cardiology


office) to fire her.



– Creating a weblog that he pretended was his wife’s web-


site. The weblog had “vulgar and sexual entries”.



bully



– Attempting to access his wife’s bank accounts online.



– Illegally using wireless internet access points: stealing


the signals from his neighbors, allegedly, to avoid paying


for the services.


In April 2004, Monty wrote a Letter to the Editor to the Schenectady


Gazette, complaining that having to disclose a 1998 conviction for


“first-degree harassment” prevented him from being hired for jobs.


He wrote “Come on, employers, is there nothing in your past that


you have done that may be questionable? Give some of us a chance


to prove we are citizens.” (Daily Gazette [Schenectady, NY], “Police


say man stalked wife via Internet,” A1, by Steven Cook, April 15, 2006,


available by subscription)



tiny check To the best of my recollection, Mr. Monty was the


person who first taught me — while representing a child


as Law Guardian in Family Court — that keeping a mother


safe is a necessity for keeping a child safe. Sadly, when


a mother chooses to remain in a violent relationship, she


puts her children at risk



blackboardAdd



Fibonacci/Schmibonacci: You won’t get the f/k/a Gang to start


counting syllables again. See “is it or ain’t it haiku?” (via Blawg Review)




update (10 PM): Jonathan Stein of The Practice weblog has written yet another mouse lawyer small


attack on me and my position regarding the ethics of the standard contingency fee.


See “Bonus Post: One More freaking time,” April 15, 2006. For the third time, he has


failed to link to any of my materials on the topic (such as this). This time, Jonathan calls


my analysis is “crap” and “hateful”, and asserts again that only a p/i lawyer can have


an opinion about the ethics of contingency fees — especially the position that fees should


vary according to the lawyers perceived risk at the time of entering the fee agreement. So


far, he hasn’t explained why the American Trial Lawyers Association submitted a statement


to the Utah Supreme Court, in 2003, explaining [at 12]:





” ‘Attorneys should exercise sound judgment and use a percentage in the


contingent fee contract that is commensurate with the risk, cost, and effort


required.’ . . . The passage is not merely information given to clients, but is


taken verbatim from a resolution on professional ethics regarding the use of


contingent fees, adopted by ATLA’s Board of Governors in 1986. This resolu-


tion continues to be ATLA’s policy regarding the ethical obligations of its


members.” [emphasis added]



[ed. note: ATLA says the appropriate percentage belongs in the fee


contract. No client should have to depend on the lawyer giving him a


a fee rebate at the end of the case.]


mouse lawyer horiz Admittedly, we are experiencing an illicit Easter Eve Chocolate-Bunny


Overdose right now, and may be more annoyed than usual by his pixel drivel. However, we’re


writing because poor Jonathan needs some mentoring. Would someone who cares about


him, please remind Jonathan that potential clients for his Elk Grove, CA, solo practice just


might Google him and discover his attitudes and EQ? Couldn’t someone more objective than


I, let Mr. Stein know that he will soon be known, throughout weblawgdom, as twerpEsq, if he


doesn’t stop these little temper tantrums. In the holiday spirit, someone go hug Mr. Stein.




in the farm field
his wife hides…
croaking frog



Issa, translated by David G. Lanoue





jailNeg




April 14, 2006

no haiku deficit allowed at this weblog

Filed under: pre-06-2006 — David Giacalone @ 9:56 am

Peridementia struck again yesterday, it seems.

I spent an entire day without posting haiku from

one of our fine Honored Guest Poets.  We don’t

allow haiku i.o.u.’s to sit around unpaid.

 

So, please enjoy the poetry of Rebecca Lilly: 

 

 

butterflyN



The whipporwill pauses…

wisps of fog moving

over a starlit pond

 

 

 

 

 




Spindly-legged fawn–

goldenrod gently sways

in the morning sun

 

 

                              butterflyG

 

 

 


A clear hot day

the silence

behind the butterfly

 

 

 

 







Afternoon warmth–

a soft breeze curling

falled peony petals

 

 

 

 






Full moon by her bed

my daughter asks

the meaning of death

 



from Shadwell Hills (Birch Prees Press, 2002)

                                                                                                   

 

potluck


bombFuse Need a headache?  Read the continuing bickering between Ted and

Evan, here.   Distorted facts and nasty Comments really bring me down.  I continue

to believe that they are one very big reason why relatively few women participate

in weblogging — as proprietors or readers.  I’m thankful for the handful of law-

related weblogs where the discussion stays civil, and I hope to do my best

to make this one of them.

 

tiny check  Yes, it is irreverent, but I must point you to this week’s edition

of the This Modern World comic strip, by Tom Tomorrow.  Naturally,

for Holy Week, it’s called “The Passion of the Hammer.”

 

tiny check Who can I blame?  I totally forgot to meniton yesterday that April 13

is Blame Someone Else Day.   Although Good Friday may not be the

best time for a belated celebration, it is also not particularly appropriate

(in many homes) for the April 14th designation: “Moment of Laughter Day.”

 

more potluck (7 PM):


tiny check Stick in the eyeAlbany Eye helped explain why I’ve gotten nothing but tv-snow

on my screen, the past three days, as I’ve attempted to watch my favorite Public Tele-

vision news shows (BBC World News, The PBS News Hour, and Charlie Rose).

Our local station, WMHT TV, put this notice at the top of its webpage (in purple, yet): 


Attention – Due to a malfunction involving the WMHT TV antenna, we are   tv

unable to broadcast programming to viewers who receive the station through

a home antenna (indoor or outdoor). This situation may last for several days.

. . . . We apologize for any inconvience this may cause you.”

 

[yes, dear reader, my home is not equipped with cable or satellite tv]

Tonight, I particularly wish I could see Charlie Rose’s show, where guests include

Garry Wills (Author, “What Jesus Meant”) and Kevin Phillips (Author, “American

Theocracy”).  And, Charlie, please get better soon.  You are missed. [Nothing like

guest hosts to make you miss a really good host.  Hmm.  Maybe I should try that.] 

 

 


 

On a much less grumpy note, as I look forward to seeing my parents and extended

family in Rochester for Easter, I ran across this great photo of my brother and I, with

my Dad, on Dad’s 75th birthday, back in 1994.  Seeing us all smiling makes me feel

good. Take a look.   Maybe we’ll be able to replicate the shot — this time including the

fourth Giacalone Guy, James A. Giacalone, who wasn’t born back in ’94.

 



“tinyredcheck”  Speaking of Rochester, here’s a handful of haiku

from native son Tom Painting:

 

 







motel room reality t.v.

 

 

 


a chain
across the park road
moon shadows

 



 

 






empty house
each room an echo
of its own

 

 

 

pickup g pickup g

 

 

 

Gettysburg
traffic backed up
to the interstate

 

 

 

 







pickup truck

an old retriever

laps the wind

 

 

                     


“motel” – modern haiku 36:2

“Gettysburg” – Heron’s Nest VI:7; New Resonance 2

“a chain” – nlapw 3/05 finalist

“empty house” – penumbra 2005 finalist

“pickup truck” — The Heron’s Nest 5.5 (May 2003) 

 

                                                                                                                        full moon

                                                     


 

April 13, 2006

Scalia chin-flicks “appearance of impropriety” rule

Filed under: pre-06-2006 — David Giacalone @ 3:28 pm

Julius Caesar — Antonin Scalia’s ancient paisano and fellow conservative
government official — understood very well the concept of the “appearance
of impropriety.”  Ask his second wife. For judges in our country, of course,
the rule has always been that you avoid even the appearance of impropriety,
especially when it comes to potential conflicts of interest in a case directly
before you.  [E.g., you recuse yourself when a personal friend is the primary
defendant in a case.]
ScaliaHandGesture original

Peter Smith/Boston Herald
Most Americans believe Supreme Court justices should be held to the
very highest ethical standards (especially at a time of intense polarity
and partisanship, with a deep suspicion that the Court has become too
politicized). The higher standard seems most appropriate in recusal sit-
uations, where the judge is totally unaccountable to anyone but himself
or herself.
Justice Scalia seems to believe that he deserves to be trusted more, because
he is a member of the nation’s most powerful court (a notion surely at odds
with the Framers he seems to so admire).  Therefore, Scalia declared last
night that his “proudest thing” as a Supreme Court Justice was his 2004
decision not to recuse himself from a case involving Vice President Cheney,
who is a personal friend of his. (AP/Washington Post, April 13, 2006)
ScaliaDissent Many law-related weblogs will surely continue to comment on this remark.
See, e.g., WSJ’s LawBlog (Joseph Schuman); Crime & Federalism (Norm
Pattis); Inside Opinions (Bob Ambrogi).  It is a wonder that a jurist so proud
of his mental capacities and linguistic skills would choose such a sad little
moment to call his proudest.  Perhaps the reason is a sense of embarrass-
ment over the recent “chin flick” incident (covered in detail by us here – and,
yes, he was lewd and obscene).
By pointing to his Cheney Recusal Refusal, Scalia might be trying to say:
“Yeah, I wasn’t man enough to own up to making an
obscene-rude-lewd gesture at a Church, and I did send
out a Supreme Court Spokeswoman to protect my rear,
but I sure stood up to those ethics mamby-pambies
and leftist do-gooders in the Cheney case.”
Justice Scalia as Judicial Macho Man.  Makes-a me proud to be an Italo-
American lawyer. I think two Comments at WSJ’s LawBlog captured the recusal/ethics issu
succinctly and well:  
honest
Scalia puts the cart before the horse. You aren’t supposed to trust
a judge so that he shouldn’t recuse himself, he recuses himself so
that you can trust him. Comment by Stephen – April 13, 2006 at
Stephen’s comment is exactly right. Scalia’s “trust me despite the
appearance of impropriety” theory is, sadly, exactly why there are
recusal rules. Recusal is not an admission of conflict; its a recognition
that in the judicial system, the perception of conflict undermines the
authority of the courts as much as an actual conflict. Comment by
DebraApril 13, 2006 at 11:30 am

Of course, maybe Antonin Scalia is just being crafty.  Maybe he wants to undermine the
authority of the Court.  In which case, his words and antics are right on target.  We need
to make sure the American public knows that Antonin Scalia is not representative of our
Supreme Court, either today or historically.
For some reason, thoughts of Justice Scalia often lead me
to a theme touched upon frequently in the more earthy haiku
of Master Issa:

little chestnuts
pissed on by the horse…
shiny new

hey boatman
no pissing on the moon
in the waves!

laugh at my piss
and shudder…
katydid

Issa, translated by David G. Lanoue
If Scalia brings out similar emotions in you,
Issa has three dozen haiku on the topic here.
If Nino makes you think #2, Issa has you covered.
MeNeFrego Me Ne Frego (Italian Hand Gestures)

April 12, 2006

markowski: in your ear & “at the ballgame”

Filed under: Haiku or Senryu — David Giacalone @ 2:31 pm

What a treat. Joe Harnett, longtime radio host of “The Old BallGame“,

has a website by that name that is constantly refreshed with new

lore and literature about baseball — with audio versions of many fine

short stories, comic routines, managerial rants and more. This week,

he added readings of 20 baseball-related poems by our Honored Guest

buddy ed markowski.

OldBallGameLogo

The Old Ballgame

Joe says:

“To my ear, there is something about the Haiku and baseball

that seems to fit so very well. Listen and maybe you’ll agree.

I picked out about 20 that I loved and they are here just for you.”

Concur.

Most of the selections already appear on our f/k/a Baseball Haiku page.

But hearing them so well rendered orally adds a great new dimension. (The

only thing we’d do differently is to leave out the Asian sounds — Ed’s poetry

and the game sounds are All-American.)

infielderG You can click directly to hear Cut One Cut One and Cut Two Cut Two (of the four original cuts).


Here are three winners from ed that I had never seen

before, which Joe presents at The Old Ballgame:

April rain
my grandson practices
his infield chatter

umpireS


Seattle sunset
Ichiro sends one
toward the Sea of Japan

first baseman’s autograph
my grandson says,
“i’m the luckiest kid in the world”

ed markowski, The Old BallGame (April 2006) http://cyber.law.harvard.edu/blogs/static/ethicalesq/girlSliding.jpg

contingent serendipity (no conspiracy)

Filed under: pre-06-2006 — David Giacalone @ 12:43 pm


Walter Olson is absolutely correct [this time]: there appears to be a

Contingency-fee-o-rama going on.  In addition to his kind pointer to

our series last week, Walter notes that “Anyone interested in the

ethical, practical and philosophical case for and against the lawyers’

contingency fee (or contingent fee; usage varies) should be sure to

check out” the new Featured Discussion at Point of Law (since April 10),

which “pits George Mason lawprof Alex Tabarrok, who’s generally sup-

portive of contingency fees, against Jim Copland of the Manhattan Institute,

who’s critical.”


WOlson For Walter’s own views, see Chapter Two of his 1991

book The Litigation Explosion, pdf-posted at Point of Law.

Tabarrok and Copland agree that there are legitimate (and helpful) uses for

contingency fee arrangements.  They differ on what consititutes an abuse

of contingency fee and what (if anything) to do about it. We’ve criticized a

well-known study co-authored by Tabarrok here, for elevating the results

that he posits from economic theory over the reality that is before our eyes

on how lawyers and clients act.  Copland seems to do a bit of that, too.

 

Nonetheless, I tend to agree with Jim’s statement

 

                                                                                      greater than eq  one third gray  


“Lester [Brickman]’s study, importantly, looks at the top quartile

of contingency fee lawyers. Some of those lawyers are indeed

getting paid handsomely for risk, luck, or performance. Others

are exploiting the information imbalance between plaintiffs and

lawyers to get extra cash based on the absence of price compe-

tition over fees. But among the lawyers not in the top quartile,

a lot are doing worse than hourly lawyers. They’re often less

skilled, in courtroom work, in preparation, in case screening, or

even in advertising strategy. Still, they stick around chasing the

big payoffs, at least as long as they can. The absence of price

competition over contingency fees leads directly to more contin-

gency fee lawyers — and more lawsuits and cost to society.”

 

tiny check  On a related note, Moe Levine left this Comment yesterday, in

response to our contingency fee analysis:


. . . saying that no firm has been willing to budge from the statutory

maximums . . .

 

Which is just as likely to be evidence that the statutory maximums

are too low  

 

Second, show me any other business that charges less than the

statutory maxmiums–look at cable tv, credit cards, etc. etc.

I sure hope the p/i bar has better arguments than this for charging so much

to each injured client (no matter how large or winnable the case may be). In

part, I replied to Moe: 


I’m still of the opinion that lawyers have higher ethical and fiduciary duties

to clients to avoid charging excessive or unreasonable fees than do cable

tv companies or “any other business” to their customers. 

 

blossomBrach

 



taking up

the holy man’s chant. . .

croaking frogs

 

 






the first snowfall
doesn’t hide it…
dog poop

 

 

 

the katydid–
even while they sell him
singing

 

 

 

 

 

the world today!
even while blossom viewing
a little thief

 

    Issa, translated by David G. Lanoue

 

 

                                                                                                     one third flip

 

contingency fee serendipity

Filed under: pre-06-2006 — David Giacalone @ 12:40 pm

Walter Olson is absolutely correct [this time]: there appears to be a

Contingency-fee-o-rama going on.  In addition to his kind pointer to

our series last week, Walter notes that “Anyone interested in the

ethical, practical and philosophical case for and against the lawyers’

contingency fee (or contingent fee; usage varies) should be sure to

check out” the new Featured Discussion at Point of Law (since April 10),

which “pits George Mason lawprof Alex Tabarrok, who’s generally sup-

portive of contingency fees, against Jim Copland of the Manhattan Institute,

who’s critical.”


WOlson For Walter’s own views, see Chapter Two of his 1991

book The Litigation Explosion, pdf-posted at Point of Law.

Tabarrok and Copland agree that there are legitimate (and helpful) uses for

contingency fee arrangements.  They differ on what consititutes an abuse

of contingency fee and what (if anything) to do about it. We’ve criticized a

well-known study co-authored by Tabarrok here, for elevating the results

that he posits from economic theory over the reality that is before our eyes

on how lawyers and clients act.  Copland seems to do a bit of that, too.

 

Nonetheless, I tend to agree with Jim’s statement

 

                                                                              greater than eq  one third gray  


“Lester [Brickman]’s study, importantly, looks at the top quartile

of contingency fee lawyers. Some of those lawyers are indeed

getting paid handsomely for risk, luck, or performance. Others

are exploiting the information imbalance between plaintiffs and

lawyers to get extra cash based on the absence of price compe-

tition over fees. But among the lawyers not in the top quartile,

a lot are doing worse than hourly lawyers. They’re often less

skilled, in courtroom work, in preparation, in case screening, or

even in advertising strategy. Still, they stick around chasing the

big payoffs, at least as long as they can. The absence of price

competition over contingency fees leads directly to more contin-

gency fee lawyers — and more lawsuits and cost to society.”

tiny check  On a related note, Moe Levine left this Comment yesterday, in response

to our contingency fee analysis:


. . . saying that no firm has been willing to budge from the statutory

maximums . . .

 

Which is just as likely to be evidence that the statutory maximums

are too low  

 

Second, show me any other business that charges less than the

statutory maxmiums–look at cable tv, credit cards, etc. etc.

I sure hope the p/i bar has better arguments than this for charging so much

to each injured client (no matter how large or winnable the case may be). In

part, I replied to Moe: 


If you’re this Moe Levine, I sure hope you are not teaching lawyers

that we have no more ethical and fiduciary duties to clients to charge

reasonable fees than cable tv companies or “any other business” have

to their customers.  Such an attitude needs no further comment from me.

 



taking up

the holy man’s chant. . .

croaking frogs

 

    Issa, translated by David G. Lanoue

 

 

                                                                                                     one third flip

 

April 11, 2006

panthers next target for Florida Bar Ad Counsel?

Filed under: pre-06-2006 — David Giacalone @ 8:15 pm

Muzzle tov, to Brett and Mitchell Panter of the Miami (Florida) law
firm of Panter, Panter and Sampredo. The Florida Bar Association may
soon make the Panter brothers famous — as either heroes or martyrs
in another attorney advertising Free Speech battle waged by the Bar’s
Dignity Police.

PanterBrett & PanterMitchell “panterPantherRN”
Brett & Mitchell Panter

According to a new posting at the website of Pape & Chandler, the
now [in]famous “pit bull lawyers” [many prior posts]:

“We recently spoke with the person in charge of lawyer
advertising with the Florida Bar about the propriety of the
lion’s heads in logos, and he told us something to the effect
that lions are not as vicious as American Pit Bull Terriers, but
panthers are vicious and they are investigating the panther logo.
The conversation went from ridiculous to sublime. Upon hearing
those assertions we had to ask the representative of the Florida
Bar if he would rather take his chances with a pit bull or a lion,
we heard crickets on the other end of the phone.” (emphasis
added):

In addition to a pair of similar panthers (on an urn, I believe) in their masthead,

here’s the footer on the PP&S website:

 

PanterPantherR PANTER PANTER & SAMPREDO PanterPantherL

 

 

Arne C. Vanstrum is Advertising Counsel for The Florida Bar. We mentioned him
in a post a couple days ago, when — with tongue meant to be in cheek — we asked
our readers to compare the ferocity-combativeness-quotient of the Panter website’s
panther images with the sleepy doggie head used in Pape & Chandler’s campaign.
Unfortunately, in the highly irrational and subjective world of the Bar’s Dignity Police,
it is darn hard to spoof reality.

We don’t know, of course, whether Mr. Vanstrum was revealing (confidential) infor-
mation about an actual investigation by FBA’s Advertising Counsel office. Although
f/k/a wouldn’t wish a disciplinary fight with the numbskulls of FBA and Florida’s high
Court on Brett and Mitchell Panter, there are a few advantages to having such an
investigation:

“PanterPantherLN”

tiny check The Florida “bar” might wake up to the silliness of all this dignity regulation
(or more likely the vulnerability of many self-respecting and even respected
firms to arbitrary investigation and aggravation) and push for the adoption of
sound, modern (constitutional) advertising rules, such as those in the ABA
Model Rules (2004), which states in Rule 7.1, the reasonable proscription:

“A lawyer shall not make a false or misleading communication about
the lawyer or the lawyer’s services. A communication is false or mis-
leading if it contains a material misrepresentation of fact or law, or
omits a fact necessary to make the statement considered as a whole
not materially misleading.”

and then cautions [Comment 3 to Rule 7.2] that “Questions of effectiveness
and taste in advertising are matters of speculation and subjective judgment,”
and warns that bans against “undignified” advertising “would impede the flow
of information about legal services to many sectors of the public” and “assumes
that the bar can accurately forecast the kind of information that the public would
regard as relevant.”

PanterPantherRN

tiny check The Florida Supreme Court might come to its senses. Or, maybe
seek insight from their Carolina brethren on the topic of panthers.
[okay, not likely]

– This raises the question whether, like obscenity,
dignity is defined by local standards.

tiny check The United States Supreme Court could accept a case with less emotional
baggage than one involving pit bulls, and re-assert free speech rights for
lawyer advertising that is neither misleading nor deceptive, but which merely
offends the ego, sense of dignity, or pocketbook of certain well-placed bar
members.

There is even one advantage here for the Panter Firm that Marc Chandler and John

Pape did not have in their “pit bull” battle with the Florida Bar Association — any

“panther” advertising investigation and litigation will almost by necessity help make

“Panter” a household word (think satellite offices!).

 

“panterPantherLN” “panterPantherRN”

 

Are there any lawyers in Florida thinking about launching new animal-related branding

or marketing activities? Before you do, you better get your species and breeds in

order and — more important — make sure you don’t have any powerful enemies in the

Florida Bar Association. [See the new webpage at Pape & Chandler, describing the

genesis and evolution of their battle with FBA.]

 

“tinyredcheck” Jeffey Harlan Penneys, Esq, Philadelphia personal injury and

Dog Bite Lawyer, should be quite happy he chose to settle down in

Pennsylvania to practice law, rather than Florida. PA has the model

rules version of lawyer advertising regulation, described above. If

the Florida Bar Folk thought this little guy way “ferocious”:

 

“pitbullLogo”

 

just what would they make of this?

 

“dogBiteJD”

[via Blawg Review Ed]

 

 

tiny check While we’re talking about lawyer self-image and the image

of lawyers, let me point out that Overlawyered‘s Ted Frank

and Legal Underground‘s Evan Schaeffer continue to trade

jabs relating to the Don’t Feed the Trial Lawyers campaign

of the Chamber of Commerce. They both call for Commentors

to be polite, however, for which I am grateful. Although I still

refuse to take sides on “tort reform as we know it,” put me

in the group that thinks the Don’t Feed billboards and ads

are ugly as sin and needlessly tasteless.

 

For my own Don’t Feed the Lawyers Campaign, I have always

preferred the tasteful t-shirts once available from Nolo.com.

 

Yes, self-helpers: – “don’t feed the lawyers — just say Nolo”

 

Don'tFeedNoloS

 

NoloSharkM NoloSharkS NoloSharkS

(from cover of Poetic Justice, edited by

Jonathan and Andrew Roth, Nolo Press, 1994):

 

 

 

spring-like day
the cat grapples
with a catnip bird

PanterPantherR spring rain the cat’s pink nipples

wilderness trail
the manicured poodle
still on a leash

Carolyn Hall

“spring-like day” – The Heron’s Nest (Vo. VI, 2004)

“spring rain” – 2003 Henderson Haiku Competition, Hon. Men.; Frogpond XXVII: 1

“wilderness trail” – The Heron’s Nest (II:11, Nov. 2000)

 

 

dog black

 






 


snowdrift


news of a missing dog


from pole to pole

 

 

 

traffic jam

a plastic dog

keeps on nodding

 

 

 

 

 

evening silence

cat food for the stray

untouched

 

 

 

 

Yu Chang
“snow drift” Upstate Dim Sum (2004/II)
“traffic jam” – Upstate Dim Sum (2002/II)
“evening silence” – Upstate Dim Sum (2003/I)

 

 

“BullG”

 

 

it’s not swearing

it’s the only language

those cows understand

 

 

my best moo

all the cows

stop and look

 

 

 

hawk flight

long summer day
a hawk holds its place
between the clouds

DeVar Dahl

“it’s not” & “my best moos” – A Piece of Egg Shell (Magpie Haiku Poets anthology)

“long summer day” – New Resonance 3: Emerging Voices; Presence 15

 

 


 – FoxNews: Cheeta – 2003

p.s. Happy Birthday to Cheeta, Tarzan’s little buddy, who

turned 74 yesterday — the oldest chimpanzee in captivity.

Cheeta made me laugh a lot in my younger years (and, no,

I didn’t see the movies when they premiered).

 

PanterPantherL

 

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