Make no mistake: this tax cut will reach 120 million families and put $120 billion directly into their pockets, and it includes the most American workers ever to get a tax cut.

This is an interesting statement, insofar as it characterizes a tax cut as putting money “directly into [the] pockets” of taxpayers. I’m having some trouble with this characterization. Suppose you are walking down the street when you are pulled into a dark alley by a common thug. He throws you to the ground, grabs your wallet, and opens it up. He takes out the $200 in cash it contains and runs off with it, all but a $20 bill, which he leaves behind. Has that thief just put $20 directly into your pocket? Should you be moved by his generosity? Should the fact that the theif left your $20 blunt your protest that he took the other $180?

The answer to these questions depends on your presuppositions regarding ownership of property and wealth. If you assume that the thief has a superior right to your money, then the answers to the above questions are all “yes.” If the thief has a right to your money, then anything he leaves you is a gift. But if your right to your money is superior to the rights of the thief, then you own him nothing.

Shifting back to the direct context of taxation, for President Obama’s statement to be true, that his tax cuts are putting money “directly” int your pockets, it would have to be true that the Government has a superior right to all of your money. If the Government has legal rights to all of the wealth in the country, then anything it lets you keep is a gift. If it does not, then cutting taxes is not putting money into pockets; rather, it is merely refraining from taking it.

The White House press secretary also made some statements that rasie some serious eyebrows. He said:

If anybody involved looks at the facts, they’ll find out that this president promised and this president delivered on putting more money back into the pockets of hardworking Americans, cut their taxes, made it more affordable to buy a home, made it more affordable to send their kids to go to college, provided tax incentives for businesses to create jobs through things like clean energy.

Aside from making the same incredible boast about putting money into Americans’ pockets by not taxing them as much (assuming it is even true), this statement raises issues about government spending. The first half of the statement claims that President Obama will lower taxes. The second half of the statement claims that the Government will subsidize things like personal residences, college educations, and business models. But if the president intends to lower taxes, how will he pay for these federal subsidies? In addition, how is the Government going to pay for these unbelieveable bailouts? As I understand it, there are only three basic ways the Government can pay for new programs.

First, it can spend less in other areas. This is a basic budgeting principle. If you want to have more money to spend on things like clothes, that means you have to spend less money on other things like fast food. But the very sugestion that this administration will be spending less seems fairly laughable. Where is all this money going to come from?

A second answer for how the Government can pay for new things is by increasing revenue. The primary revenue-generating method used by the Government is the income tax. But President Obama is promising to increase spending while descreasing taxes. How can this be? One answer is that he plans on using one of the other two methods to fund his programs. Another answer is that he doesn’t really plan on lowering taxes, overall. This latter approach is the Robin Hood approach. By significantly raising taxes on the most productive (and therefore most wealthy) segments of society, the Government can maintain – if not increase – its cashflow by simply shifting the financial burden to a smaller subset of society. Since the lower classes of society generally feature some sort of entitlement attidute, this is a pretty easy sell. This is the mindset that claims that the affluent are oppressing the poor by the very nature of their affluence. This injustice can be corrected by taxing the rich to give to the poor. This view is better known as a variant of Socialism.

The third answer is that the Government can pay for new prgrams by creating the money to pay with. Because American currency is no longer backed by a finite, valuable substance such as gold, that means that two things are true: First, the value of the American dollar is determined by the strength of the American economy. The wisdom of this reliance can seriously be doubted, especially in times like this. Second, the Government can simply print money as it pleases. This second implication is very important because it amounts to an indirect tax. Whenever the government prints money without taking an equal amount out of circulation, it dillutes the pool. That is, it incrementally devalues every other dollar in circulation. This is inflation and it results, indirectly, in the Government taking your money. It does this not by taking your dollars, but by taking away the value of your dollars.

This should scare people. Aside from the notion that you can spend your way out of a recession, these comments by the Obama administration indicate that the foundation of President Obama’s worldview is government ownership of everything and the necessity of redistributing everything accordingly.

Certainly the outcome has substantive impact. If the court decides that Proposition 8 was passed in an unconstitutional manner, it becomes a nullity and California returns to being the second of these United States to allow homosexual mariage by judicial pronouncement. There are, however, some interesting sub-plots that get lost in the shuffle.

First, if the court does rule that Prop 8 is unconstitutional, it would render moot any federal case arguing that Prop 8 violates the 14th Amendment to the federal Constitution. In my mind, this is the “big fish” argument. I have written previously on the evolution of the 14th Amendment and how the United States Supreme Court has a long history of taking a results-oriented approach to its interpretation. One can see the “ramp up” to the infamous Roe v. Wade decision in prior cases dealing with government intrusion into marriage and procreation. There has been a similar ramp-up over the past several years regarding the issue of homosexuality on society. The Supreme Court has issued decisions striking down sodomy laws in all 50 states and has held that states cannot make constitutional amendments excepting “sexual orientation” from classes protected from employment discrimination.

All this means that the time is ripe for a Supreme Court decision stating that states cannot prohibit homosexuals from marrying if they wish. The interplay between Prop 8 and the 14th Amendment looks to me like the perfect battleground for such a decision. But if the California Supreme Court overturns Prop 8, it would make the federal question moot and non-justiciable. A California victory for homosexual marriage proponents could come at the expense of a federal coup d’état.

My second observation is that there is a considerable ideological overlap between the people who want the California Supreme Court to overturn the results of a popular election and the people who, for the last 8 years, have mercilessly ridiculed Justice Scalia and the United States Supreme Court for usurping a popular election and declaring George Bush the winner of the 2000 election. For over 8 years, the accusation has come from liberal corners that the Supreme Court should not have gotten involved in the democratic process by halting the recount and that the will of the people should have been given paramount importance. Now, from those same corners, we are hearing that the will of the people of California should not be recognized and that the state Supreme Court should step in and invalidate the results of a popular vote. This is certainly inconsistent, if not downright hypocritical.

So what do you think? Will the California Supreme Court strike down Prop 8? Can you see the United States Supreme Court mandating homosexual marriage throughout the country? When should courts substitute their own notions of morality for the will of the people?

I can understand people protesting the government when it makes unilateral actions that people disagree with. Certainly the purpose of protesting (and indeed, the First Amendment) is to ensure the people have a voice when their government takes actions with which the people disagree. But Proposition 8 was voted on by the people. Those for it and those opposed to it had their voices heard, not just with the pre-vote campaigning, but in the exercise of the vote itself.

So what do you think? Is this a perfectly legitimate protest, or does it border on “sour grapes”? Are there any other instances I am not aware of where Americans protested the outcome of the direct exercise of democracy?

Thoughts?

Personally, I cannot see the educational value in taking school children to any personal life event of a teacher. I would object to children being taken to any wedding during school hours. To be charitable, perhaps this was a way for the teacher to avoid having to take a personal day.

Anyway, on to business.

I am not all that interested in economics per se, nor do I consider myself a political guru by any stretch. Nonetheless, I wanted to offer up a remark about the astonishing $700,000,000,000.00 government bank buyout that is currently occupying headlines.

I don’t pretend to know all the details of this plan, but obviously, someone is going to have to pay for it and everyone knows the U.S. government is already dead broke. That fact also brings up an interesting corollary that I am not seeing mentioned in the media: We are in this position because of widespread and rampant financial mismanagement. So why do we think that the federal government (which already has a $10 Trillion debt to testify to its financial management prowess) is going to make the situation better? And even if we could be sure it would, does that necessarily mean that it should?

It makes me nervous when the government interferes in free markets for the purpose of economic engineering.

One other point that goes to my caveat regarding politics. I would consider myself conservative, but I would not call myself a Republican. One reason for this is exemplified by this issue. If liberals can be counted on to increase government spending to pay for gratuitous government programs, why can’t conservatives be counted on to keep the government uninvolved and let the market regulate itself? Why does the choice seem only to be where we spend the $700 Billion we don’t have?

However, I want to focus on the issue of governmental immunity. Here is a relevant excerpt from the article:

On June 11, 2005, Middleton, who had been a Jackson police officer since 2003, was working a 2-10 p.m. shift. After dropping a prisoner off at the Hinds County Detention Center in Raymond, he headed north on Mississippi 18 near Siwell Road, according to police statements.

At the same time, around 10:44 p.m., Harris was heading in the opposite direction. Harris, driving a 2000 Pontiac Grand Am, tried to turn left onto Siwell.

Witnesses told police investigators that Middleton was driving at a high speed without his emergency lights or siren on. They said he ran the traffic light and crashed into Harris’ vehicle.

Middleton was indicted in October 2005. After a Jackson Police Department Internal Affairs investigation, he left the department.

Harris’ family has a wrongful death lawsuit pending in Hinds County Circuit Court against Middleton and the city of Jackson. No trial date has been set.

Assistant City Attorney Pieter Teeuwissen said the city’s position is that it is prohibited by law from paying the Harris family’s claim.

Teeuwissen said the state code says “an employee shall not be considered as acting within the course and scope of his employment and a governmental entity shall not be liable or be considered to have waived immunity for any conduct of its employee if the employee’s conduct constituted fraud, malice, libel, slander, defamation or any criminal offense.”

Although the offense has been wiped from Middleton’s record, he pleaded guilty to a criminal offense, Teeuwissen said.

Sounds reasonable, right? You may not agree with the law, but there it is, black and white. A government employee is not acting within the scope of his employment if he is engaging in a criminal act. Middleton plead guilty to a criminal charge, therefore he was not acting within the scope of his employment, right? Not quite.

Whether the reporter considered it unimportant, or whether Mr. Teeuwissen omitted it from his interview, the actual statute reads a bit differently from the quote in the article. Here is Miss. Code Ann. § 11-46-5(2) in its entirety:

For the purposes of this chapter an employee shall not be considered as acting within the course and scope of his employment and a governmental entity shall not be liable or be considered to have waived immunity for any conduct of its employee if the employee’s conduct constituted fraud, malice, libel, slander, defamation or any criminal offense other than traffic violations. (emphasis added)

That changes the landscape a little, does it not? Respondeat superior and governmental immunity may be complicated issues, but there is a huge difference between a government employee knocking over a 7-11 and a police officer on duty, in uniform, in a marked government police cruiser returning from a duty of his employment driving recklessly, running a red light, resulting in the death of a motorist. One falls under the statute and the other doesn’t.

I am all for a total ban on smoking, but I think to be reasonable that the law should ban smoking anywhere that children may be present. It should be allowed in stand-alone bars, nightclubs, and casinos. It is fair that smokers have somewhere to go, but they should not be allowed to smoke around children. And I should not be forced to keep my child at home to avoid their smoke. It is time for smokers to have some responsibility.

This is a very interesting statement. It implies that tobacco smoke and children should not exist in the same place at the same time. Assuming for the moment that this is true, why prefer children over smoke in Red Lobster? If smoke is irritating, what about screaming, crying babies and poorly behaved children? It’s almost impossible to relax and enjoy a good cigar after dinner with all the annoying children carrying on. So again, why not pass a law prohibiting children from restaurants? Because it would be absurd, that’s why.

There once was a day when politicians and judges would refuse to hear these issues, preferring to let the market self-regulate. In this age of state paternalism, that seems to be an antiquated notion. In the old days, property owners had the right to allow or prohibit perfectly legal behavior on their premises. If you didn’t like smoke and a non-smoking section wasn’t good enough for you, you could register your displeasure and not come back. If enough people did the same, the restaurant would lose business and be forced to reassess its position.

Likewise, if a restaurant voluntarily prohibited smoking and you like to enjoy a cigar or pipe after dinner, you could register your displeasure and eat elsewhere. In either case, property owners were free from government intrusion and the market would regulate itself.

But not anymore. Now, if there’s something that annoys you, you don’t have to be content to merely utter “there oughta be a law…” Now, you can actually get one.

The standard for allowing the case to go forward should be higher than mere plausibility, the government said, pointing to recent Supreme Court decisions, including one in an antitrust case last year, that raised the standard for the evidence that plaintiffs must provide at the initial stage in order to withstand a motion to dismiss their lawsuit.

The unnamed antitrust case is a reference to Bell Atlantic and while the NYT article implies that the Government is getting greedy and arguing that even plausibility is insufficient, the text of the appeal makes it look more as if the Government is arguing that even though the Second Circuit couched its opinion in terms of plausibility, the evidence at this early stage is nonetheless insufficient under Bell Atlantic.

The case is styled Ashcroft v. Iqbal and the Supreme Court granted certiorari, meaning that we could soon have a firmer understanding of the impact of Bell Atlantic on the notice pleading system. Stay tuned…

In the criminal justice system, the attorney/client privilege looks a little different, at least in the public eye. One of the ethical requirements that obligates a lawyer is to never incriminate his client. The reasons for this are much the same as in the civil context. Even though we don’t like “bad guys,” they are nonetheless entitled to an adequate defense. If the system allowed lawyers to “rat out” their clients, the system would effectively deprive the accused of an adequate defense. Defendants would always be on guard, unable to trust their own attorney. They would resist divulging any information they wouldn’t tell the police and they would simply be unable to have an adequate defense.

With this in mind, consider the case of Alton Logan. Logan has been in prison for 26 years for a crime he didn’t commit. The true perpetrator, Andrew Wilson, had in fact committed the murder for which Logan is serving time. At the time, Wilson had told his lawyers that he, and not Logan, had committed that murder, but Wilson’s attorneys were bound by the attorney/client privilege and could not come forward with the information.  Logan was wrongfully convicted and only now that Wilson has died in prison has the privilege been released and the truth been able to come out.

It is very difficult to be in the position of defending a system which allowed an innocent man to spend 26 years in prison for a crime he didn’t commit. On the other hand, I’m not really defending it. The burden for falsely convicting Logan rests on the prosecution and Logan’s own lawyers. Since Logan did not actually commit the crime, we should blame the system that falsely convicted him.

The attorney/client privilege is good for the system, even though it occasionally seems to produce unjust results. It also highlights the reasons I have no desire to go into criminal law. The stakes are very high and the toll it takes on the conscience is not one I’m willing to pay.