Many judges, including perhaps a majority of the US Supreme Court, subscribe to the belief that the US Constitution should be interpreted based the drafters' intent. At first glance, the idea makes perfect sense. After all, the Common Law generally provides that a contract or law should ordinarily be interpreted as the authors' intended. When it comes to the Constitution, however, seeking original intent is completely irrational.
The Constitution is 230 years old. No one alive today voted for it. Even at the time the Constitution was ratified, only small minority of those then alive had anything to do with the decision. Women did not get the vote until over 100 years later and blacks in the U.S. were nearly all held in slavery. Moreover, no matter how good their intentions, the authors of the Constitution had no right to impose their will on their contemporaries, let alone everyone who lives in the United States (as it has now expanded) for all time.
Thankfully, human society has advanced substantially in the past 230 years. Although the authors of the Constitution may have been enlightened for their time, their views on interracial marriage, slavery, crime and punishment and numerous other matters are barbarian by today's standards. The fact that these people thought we have a right to bear arms, for example, should not control our lives. Their judgment about right and wrong is questionable at best, and perhaps more importantly they knew nothing about the weapons or society of today.
Ironically, looking for original intent ignores the true genius of the Constitution. The drafters never intended to legislate 23o years in advance. Rather than defining the rights of the citizens in clear terms, the drafters used phrases like "Due Process of Law" and "Equal Protection." These phrases were intended to be vague, so that each generation could interpret them differently and thus govern themselves. Asking what the drafters meant by "Equal Protection" is not only asking for trouble, it is actually ignoring the drafters' intent.
Sunday, June 22, 2008
Saturday, February 23, 2008
Corruption at the United States Passport Office
My recent experience with the passport office raises two concerns about our government.
The passport office website informed me that it would take approximately 6 to 8 weeks to renew my passport. The actual work in issuing a new passport is minimal, and probably takes less than an hour. There is no reason why the entire process should ever take more than a couple of days, even at busy times. A typical private company would accomplish a similar administrative task in one day, or else be forced out of business by other companies that did. Denial (or delay) of a passport is a serious matter, preventing one from leaving the country. I am troubled that our government is unable to (or does not care to) perform a simple but important task in a timely fashion. But it gets worse.
I discovered that a "private" agency can get a passport in a day -- for a fee. That is corruption, pure and simple. The private agency does not know the secret way to fill out a form, nor does it have people standing in line holding a place just for its next customer. Quite to the contrary, the private agency has a connection (what kind, it is impossible to tell) which allows it to get a passport as fast as you happen to need it, for a sliding scale of fees. I paid to get my new passport back in a week, and that is when it was returned to me, but I noticed that it was actually issued the day after I left my old passport at the agency. Obviously, those with connections have no trouble getting a passport in the usual time.
Someone inside the government is selling the right to get a passport. It is no wonder that it takes six weeks to get a passport the "usual" way. If it took a day, no one would pay to get their passport faster!
Slowly but surely, the United States is becoming a corrupt third world country.
The passport office website informed me that it would take approximately 6 to 8 weeks to renew my passport. The actual work in issuing a new passport is minimal, and probably takes less than an hour. There is no reason why the entire process should ever take more than a couple of days, even at busy times. A typical private company would accomplish a similar administrative task in one day, or else be forced out of business by other companies that did. Denial (or delay) of a passport is a serious matter, preventing one from leaving the country. I am troubled that our government is unable to (or does not care to) perform a simple but important task in a timely fashion. But it gets worse.
I discovered that a "private" agency can get a passport in a day -- for a fee. That is corruption, pure and simple. The private agency does not know the secret way to fill out a form, nor does it have people standing in line holding a place just for its next customer. Quite to the contrary, the private agency has a connection (what kind, it is impossible to tell) which allows it to get a passport as fast as you happen to need it, for a sliding scale of fees. I paid to get my new passport back in a week, and that is when it was returned to me, but I noticed that it was actually issued the day after I left my old passport at the agency. Obviously, those with connections have no trouble getting a passport in the usual time.
Someone inside the government is selling the right to get a passport. It is no wonder that it takes six weeks to get a passport the "usual" way. If it took a day, no one would pay to get their passport faster!
Slowly but surely, the United States is becoming a corrupt third world country.
Tuesday, February 19, 2008
Free Will
The "problem" of free will escapes me. Some seem to think that free will means that human decisions are not deterministic, i.e., that they are unpredictable. That makes no sense to me. The fact that you can predict, in advance, that I will make a certain choice does not change the fact that the choice is mine to make. I will always choose tuna sushi over natto. I could, if I wanted, chose differently. But it happens that I like tuna, and not natto, so I always choose the former. Still, it is my choice. I could choose otherwise, if I wanted to, but I don't.
Being undeterministic is not the same as having free will. Quantum mechanics tells us that an electron behaves unpredictably, but an electron does not therefore have free will. Or at least there is no reason to believe that it does. Indeed, although the behavior of a particular electron is not strictly predictable, the behavior of a large group of electrons is. That is because quantum mechanics tells us the odds that an electron will take a certain path. The choice of each electron is not really "unpredictable" at all. If being undeterministic is "free will," then there really is not such thing.
The false "problem" of free will seems to be a function of a misunderstanding of the term "I." The fact that you can, theoretically at least, always predict in advance what I am going to chose does not change the fact that I made the choice. Now, if I am served natto, no matter what I request, then of course I did not have a choice in the matter.
This brings me to the issue of accountability and blame. Perhaps I am destinted to commit a terrible crime. It is a certainty that I will chose to kill a man. Can I be blamed? After all, I am exactly what my genetic background and my upbringing, and given those facts about my existence, it is certain what I will do. Circumstances may have conspired to make me a bad person, someone who chooses to do evil things. Still, that does not chance the fact that I can still be blamed for what I do, so long as I have a choice.
By "choice" I mean that circumstances are such that, if another person were in the same circumstances as I, the result might be different. For example, if I am driving and decide to run a red light, you (and many other people) would have been able to act differently. You would have stepped on the brake. Assuming that the brakes work, my running the red light was a choice.
Of course, there are all sorts of problematic cases, such as where my leg spasms, and I am not able to step on the brake. Most people would not blame me under those circumstances, yet you would have done better had you been in my place. It seems that, in this example, my body and not my brain made the "choice." Without getting into a mind-body argument, this seems like a clear example of a decision made by my body, for which I am not morally responsible. Strictly speaking, however, perhaps I did have a "choice," as I have defined it. Of course, change the example to add the fact that I was taking medication that I knew gave me leg spasms, and perhaps I am to blame again.
And what about people who do things under the influence of drugs or mental illness? At least by my definition, they have still chosen to do whatever it is that they do. Perhaps the moral implications are different, depending on the complete circumstances, but the drunk person still chooses to punch someone in the nose.
Being undeterministic is not the same as having free will. Quantum mechanics tells us that an electron behaves unpredictably, but an electron does not therefore have free will. Or at least there is no reason to believe that it does. Indeed, although the behavior of a particular electron is not strictly predictable, the behavior of a large group of electrons is. That is because quantum mechanics tells us the odds that an electron will take a certain path. The choice of each electron is not really "unpredictable" at all. If being undeterministic is "free will," then there really is not such thing.
The false "problem" of free will seems to be a function of a misunderstanding of the term "I." The fact that you can, theoretically at least, always predict in advance what I am going to chose does not change the fact that I made the choice. Now, if I am served natto, no matter what I request, then of course I did not have a choice in the matter.
This brings me to the issue of accountability and blame. Perhaps I am destinted to commit a terrible crime. It is a certainty that I will chose to kill a man. Can I be blamed? After all, I am exactly what my genetic background and my upbringing, and given those facts about my existence, it is certain what I will do. Circumstances may have conspired to make me a bad person, someone who chooses to do evil things. Still, that does not chance the fact that I can still be blamed for what I do, so long as I have a choice.
By "choice" I mean that circumstances are such that, if another person were in the same circumstances as I, the result might be different. For example, if I am driving and decide to run a red light, you (and many other people) would have been able to act differently. You would have stepped on the brake. Assuming that the brakes work, my running the red light was a choice.
Of course, there are all sorts of problematic cases, such as where my leg spasms, and I am not able to step on the brake. Most people would not blame me under those circumstances, yet you would have done better had you been in my place. It seems that, in this example, my body and not my brain made the "choice." Without getting into a mind-body argument, this seems like a clear example of a decision made by my body, for which I am not morally responsible. Strictly speaking, however, perhaps I did have a "choice," as I have defined it. Of course, change the example to add the fact that I was taking medication that I knew gave me leg spasms, and perhaps I am to blame again.
And what about people who do things under the influence of drugs or mental illness? At least by my definition, they have still chosen to do whatever it is that they do. Perhaps the moral implications are different, depending on the complete circumstances, but the drunk person still chooses to punch someone in the nose.
Friday, January 11, 2008
Is JAMS Fair?
January 11, 2008
More and more disputes are being resolved through private arbitration rather than litigation in a court. Courts are run by the government. The judges are public employees. They draw a fixed salary, and they take whatever cases are filed. The filing fees in court are minimal. On the other hand, the courts can be overcrowded, overworked and slow, although that is not true of the Los Angeles County Superior Court where I practice law. I do not mean to imply that the LASC is short of cases. In fact, it is busy, but, on the whole, cases get resolved promptly.
If the parties to a dispute agree, their dispute can be resolved by a private arbitrator, who is selected and paid by the parties, rather than by a court operated by the State. This agreement to arbitrate a dispute can be made in advance, for example in an agreement between a patient and a doctor to arbitrate any malpractice claim, should one arise in the future. Alternatively, the agreement to arbitrate can be made after the dispute has already arisen.
Courts favor arbitration for one obvious reason: it lightens the courts' burden. If a private arbitrator resolves a case, the court does not have to. The State saves money, and the individual judges have less work to do. The State Legislature loves arbitration, for the same reason. Therefore, courts send cases to arbitration whenever there is a basis to do so. Moreover, once an arbitrator had made a decision, the courts almost never set those awards aside. The fact that the arbitrator made an obvious mistake of fact or law is not a basis for a court to vacate an arbitrator's award. There is no "appeal," as there is from a judgment entered by a judge.
The increase in the number of arbitrations has resulted in an increase in the number of arbitrators. Many, although by no means all, of the arbitrators are retired judges. (In fact, some arbitrators are not even lawyers).
I have come to oppose the growth of arbitration, for two main reasons. First, some arbitrators take advantage of the fact that there is no appeal from an arbitration award. They do what they please, without regard to the facts or the law, knowing that the courts will almost certainly overlook their "errors" and affirm their awards as judgments.
Perhaps more importantly, many arbitrators are biased. For example, some health care providers, such as Kaiser, force their patients to sign arbitration agreements in advance as a condition of providing care. Imagine that you are an arbitrator who handles the resulting medical malpractice arbitrations between Kaiser and patients. If you rule against Kaiser, you run the risk of never being selected again by Kaiser to arbitrate another case. If you rule against the patient, that patient might never agree to use you again, but that hardly matters. The bottom line is that arbitration can favor the repeat customer -- the big company vs. the consumer.
Of course, that is not true of all, or even most, arbitrators. Take, for example, ADR Services. ADR provides the services of retired Judges, both as mediators and as arbitrators. I have never found any of the professionals from ADR to be biased, although admittedly I have used them more as mediators than as arbitrators.
I am deeply concerned, however, about JAMS, another company that provides the services of retired judges, who act as mediators and arbitrators. I recently had a terrible experience with JAMS, and specifically with retired judge G. Keith Wisot. I practice in a small firm, one that cannot provide any meaningful amount of business to JAMS. On the other side of the case is a large firm, which can. Judge Wisot made rulings that can only be described as bizarre. Well, that is not quite true. They can also be described as acts outside his jurisdiction and most likely a violation of my clients' Procedural Due Process Rights. In fact, that is how the Los Angeles County Superior Court described Judge Wisot's actions in finding that his award is defective and must, at a minimum, be corrected. As mentioned above, it takes quite a bit to get a court to take a second look at an arbitrator's award.
I cannot explain Judge Wisot's behavior in a satisfactory way. He is not a stupid man, and he did not simply make an honest mistake. He has no past history with me, nor with my clients. I doubt that he is taking bribes, at least not as that word is normally used. What I believe is that he ruled in favor of the big firm, knowing that, if he continues to do so, he will continue to get business from them. That is the only explanation I can come up with, although I admit it is just conjecture on my part, and I cannot prove it.
I do have one other piece of evidence: Judge Wisot's outrageous billing rate. JAMS bills his time at between $600 and $1,000 per hour, and sometimes at even higher rates. By way of comparison, there are 42 retired Judges and Justices (a higher position than a Judge in our system) on the ADR Southern California Panel. That panel includes several highly sought after individuals, such as Judge Alan Haber, Judge Enrique Romero and Justice John Zebrowski. Yet, not one of those jurists charges even $600 per hour. Judge Wisot's lowest rate -- as charged by JAMS -- is higher than every one of ADR's 42 jurists.
Moreover, Judge Wisot has no meaningful reputation. I can safely say that because, in my 18 years as litigator in Los Angeles, I cannot remember a single time when any attorney suggested Judge Wisot for anything, nor have I heard anyone curse him. By way of contrast, I have repeatedly had other attorneys suggest Judge Romero, especially for settlement purposes. I only vaguely remember Judge Wisot when he was on the bench, many years ago. Since becoming involved in the cases before him, I have asked several other attorneys for their opinions. If they remember him at all, their opinions are uniformly neutral: no one particularly likes or dislikes him.
I believe that JAMS and its overpaid mediocre group of retired judges has a cozy relationship with big law firms. The big firms agree to over pay for the services, and in return JAMS rules in their favor. I doubt very much that there is an express agreement along those lines, but my limited experience seems to suggest that is the case. I would welcome a detailed survey of the success rate of big firms in cases tried by JAMS versus cases tried in open court, and subject to review. In the meantime, I will continue to use ADR Services, and avoid JAMS.
More and more disputes are being resolved through private arbitration rather than litigation in a court. Courts are run by the government. The judges are public employees. They draw a fixed salary, and they take whatever cases are filed. The filing fees in court are minimal. On the other hand, the courts can be overcrowded, overworked and slow, although that is not true of the Los Angeles County Superior Court where I practice law. I do not mean to imply that the LASC is short of cases. In fact, it is busy, but, on the whole, cases get resolved promptly.
If the parties to a dispute agree, their dispute can be resolved by a private arbitrator, who is selected and paid by the parties, rather than by a court operated by the State. This agreement to arbitrate a dispute can be made in advance, for example in an agreement between a patient and a doctor to arbitrate any malpractice claim, should one arise in the future. Alternatively, the agreement to arbitrate can be made after the dispute has already arisen.
Courts favor arbitration for one obvious reason: it lightens the courts' burden. If a private arbitrator resolves a case, the court does not have to. The State saves money, and the individual judges have less work to do. The State Legislature loves arbitration, for the same reason. Therefore, courts send cases to arbitration whenever there is a basis to do so. Moreover, once an arbitrator had made a decision, the courts almost never set those awards aside. The fact that the arbitrator made an obvious mistake of fact or law is not a basis for a court to vacate an arbitrator's award. There is no "appeal," as there is from a judgment entered by a judge.
The increase in the number of arbitrations has resulted in an increase in the number of arbitrators. Many, although by no means all, of the arbitrators are retired judges. (In fact, some arbitrators are not even lawyers).
I have come to oppose the growth of arbitration, for two main reasons. First, some arbitrators take advantage of the fact that there is no appeal from an arbitration award. They do what they please, without regard to the facts or the law, knowing that the courts will almost certainly overlook their "errors" and affirm their awards as judgments.
Perhaps more importantly, many arbitrators are biased. For example, some health care providers, such as Kaiser, force their patients to sign arbitration agreements in advance as a condition of providing care. Imagine that you are an arbitrator who handles the resulting medical malpractice arbitrations between Kaiser and patients. If you rule against Kaiser, you run the risk of never being selected again by Kaiser to arbitrate another case. If you rule against the patient, that patient might never agree to use you again, but that hardly matters. The bottom line is that arbitration can favor the repeat customer -- the big company vs. the consumer.
Of course, that is not true of all, or even most, arbitrators. Take, for example, ADR Services. ADR provides the services of retired Judges, both as mediators and as arbitrators. I have never found any of the professionals from ADR to be biased, although admittedly I have used them more as mediators than as arbitrators.
I am deeply concerned, however, about JAMS, another company that provides the services of retired judges, who act as mediators and arbitrators. I recently had a terrible experience with JAMS, and specifically with retired judge G. Keith Wisot. I practice in a small firm, one that cannot provide any meaningful amount of business to JAMS. On the other side of the case is a large firm, which can. Judge Wisot made rulings that can only be described as bizarre. Well, that is not quite true. They can also be described as acts outside his jurisdiction and most likely a violation of my clients' Procedural Due Process Rights. In fact, that is how the Los Angeles County Superior Court described Judge Wisot's actions in finding that his award is defective and must, at a minimum, be corrected. As mentioned above, it takes quite a bit to get a court to take a second look at an arbitrator's award.
I cannot explain Judge Wisot's behavior in a satisfactory way. He is not a stupid man, and he did not simply make an honest mistake. He has no past history with me, nor with my clients. I doubt that he is taking bribes, at least not as that word is normally used. What I believe is that he ruled in favor of the big firm, knowing that, if he continues to do so, he will continue to get business from them. That is the only explanation I can come up with, although I admit it is just conjecture on my part, and I cannot prove it.
I do have one other piece of evidence: Judge Wisot's outrageous billing rate. JAMS bills his time at between $600 and $1,000 per hour, and sometimes at even higher rates. By way of comparison, there are 42 retired Judges and Justices (a higher position than a Judge in our system) on the ADR Southern California Panel. That panel includes several highly sought after individuals, such as Judge Alan Haber, Judge Enrique Romero and Justice John Zebrowski. Yet, not one of those jurists charges even $600 per hour. Judge Wisot's lowest rate -- as charged by JAMS -- is higher than every one of ADR's 42 jurists.
Moreover, Judge Wisot has no meaningful reputation. I can safely say that because, in my 18 years as litigator in Los Angeles, I cannot remember a single time when any attorney suggested Judge Wisot for anything, nor have I heard anyone curse him. By way of contrast, I have repeatedly had other attorneys suggest Judge Romero, especially for settlement purposes. I only vaguely remember Judge Wisot when he was on the bench, many years ago. Since becoming involved in the cases before him, I have asked several other attorneys for their opinions. If they remember him at all, their opinions are uniformly neutral: no one particularly likes or dislikes him.
I believe that JAMS and its overpaid mediocre group of retired judges has a cozy relationship with big law firms. The big firms agree to over pay for the services, and in return JAMS rules in their favor. I doubt very much that there is an express agreement along those lines, but my limited experience seems to suggest that is the case. I would welcome a detailed survey of the success rate of big firms in cases tried by JAMS versus cases tried in open court, and subject to review. In the meantime, I will continue to use ADR Services, and avoid JAMS.
Monday, December 24, 2007
Okinawa Soldiers
Thanksgiving, 2007
Almost all the passengers on our flight from Tokyo's Narita Airport to Naha, on Okinawa Honto, were Americans, presumably either army personnel or family. Most seemed to be in their 20s or early 30s at the oldest, although there were a few older than that. Based on their dress and manner of speech, it seemed that they were mostly lower middle class, and came from places other than the two Coasts. We saw the same people in and around Naha, the main city, and also near the army bases, where we saw the businesses set up to service them -- A & W Root Beer, McDonald's, taco stands and shops selling various American goods.
We also saw the protesters outside the army bases. Even though we could not read their signs, it was clear what they wanted. I had to wonder, however, if all the locals felt the same way. Clearly, a large part of the local economy is based on selling to the Americans.
I could not help wondering about these young Americans and what they were doing thousands of miles from home. From what I could tell, they had no interest at all in Japanese culture. They were not there to learn about Okinawa, or even to enjoy the tropical weather, for which few of them were properly dressed. Although I did not ask any of them, I drew the conclusion that these young American were in the army because that was the best option available to them. The fact that they had been sent to Okinawa, as opposed to some other base, was merely a coincidence.
It also occurred to me that my tax dollars are paying for all this. What are these soldiers doing in Okinawa that they cannot do at home? Certainly, they could train at home; that is not why they have travelled over 5,000 miles from the continental United States. Are these Americans going to prevent an invasion by China or North Korea? The idea seems preposterous. Neither of those countries would actually invade Japan. And if there is a risk of such an invasion, why is the United States willing to fund an army base to prevent such an invasion, when Japan is not?
It is time for the Okinawa Soldiers to come home.
Almost all the passengers on our flight from Tokyo's Narita Airport to Naha, on Okinawa Honto, were Americans, presumably either army personnel or family. Most seemed to be in their 20s or early 30s at the oldest, although there were a few older than that. Based on their dress and manner of speech, it seemed that they were mostly lower middle class, and came from places other than the two Coasts. We saw the same people in and around Naha, the main city, and also near the army bases, where we saw the businesses set up to service them -- A & W Root Beer, McDonald's, taco stands and shops selling various American goods.
We also saw the protesters outside the army bases. Even though we could not read their signs, it was clear what they wanted. I had to wonder, however, if all the locals felt the same way. Clearly, a large part of the local economy is based on selling to the Americans.
I could not help wondering about these young Americans and what they were doing thousands of miles from home. From what I could tell, they had no interest at all in Japanese culture. They were not there to learn about Okinawa, or even to enjoy the tropical weather, for which few of them were properly dressed. Although I did not ask any of them, I drew the conclusion that these young American were in the army because that was the best option available to them. The fact that they had been sent to Okinawa, as opposed to some other base, was merely a coincidence.
It also occurred to me that my tax dollars are paying for all this. What are these soldiers doing in Okinawa that they cannot do at home? Certainly, they could train at home; that is not why they have travelled over 5,000 miles from the continental United States. Are these Americans going to prevent an invasion by China or North Korea? The idea seems preposterous. Neither of those countries would actually invade Japan. And if there is a risk of such an invasion, why is the United States willing to fund an army base to prevent such an invasion, when Japan is not?
It is time for the Okinawa Soldiers to come home.
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