LET'S TALK ABOUT BULLETS

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LET'S TALK ABOUT GUNS

This may come as a shock to some of you, but I am what you would call a Bill of Rights absolutist. That is to say, on issues involving our Constitution's first ten amendments, what you see is what you get. The Second Amendment protects a persons right to "keep and bear arms." That's pretty much it. And my reasoning is also pretty simple. If someone, a bad guy, attempts to harm me or my family with a firearm, I shouldn't have to wait for the police or resort to throwing pots and pans at the guy in order to protect us. I don't think that it's a very hard concept to understand, but I can see where the other side is coming from.

Americans have always been quick to ban or outlaw things, or behaviors, that are thought to cause problems in society. Alcohol, drugs, porn, adultery (see The Scarlet Letter) are just a few examples. We, of course, miss the bigger picture most of the time so we get fun things like the organized crime that was the direct result of Prohibition in the 1920s. The same is true of guns. If we just ban the damn things the problem will go away. Sorry, it won't.

In the current debate over gun control a rather large majority of people believe that so called Universal Background Checks will keep guns out of the hands of nut jobs and criminals. It's a nice idea. It just can't work.

A little personal history might help explain why. Back in the day when my first wife and I moved to a 121 acre farm in rural West Virginia I was a gun owner. The first was a .22 cal rifle, with a scope, that I purchased, new, from Sears. I think. It was a very long time ago. I do know that a background check was not part of the process. My second gun was a 12 gauge, single shot, shotgun that I paid $21 for at an auction. This gun was old. Old to the point that the first time I fired it the gun was tied to a tree and I pulled the trigger with a fairly long piece of string. Just in case. My third gun was a .30 cal lever action deer rifle that I bought from a friend. That's it.

The .22 was bought for protection. Not our protection. Protection for the chickens that my Ex insisted that we raise. It seems that chickens, and chicken feed, attract what we liked to call Varmints. It also worked very well to kill a steer in preparation for butchering. Sorry, but them's the facts. The only hunting I ever did with it was hunting the huge crow that was destroying our garden one year. Now crows are very smart birds and this one was at the top of the list. Every time I came around the corner of the house, with the gun in hand, said crow took off like a rocket. If I hid the rifle behind my back he'd just sit and look at me until I went to swing the gun into shooting position. Off like a rocket again. Finally I spotted him about 200 yards away in the back field while I was still in the house. Declaring softly, "I'm smarter than a crow," I took the rifle into the bathroom. The window looked out on the field. I got down on the floor and very slowly opened the window just enough to allow the rifle barrel to poke out and to give me a clear sight line threw the scope.

I pulled the trigger just as he started to jump into the air for takeoff. He never made it. .22 bullets are very fast. I learned a very important lesson that day. Never fire a gun in a small bathroom! Besides going instantly deaf, I was only hit a glancing blow from the hot brass cartridge that ejected from the gun and then bounced off the wall not two feet to my right. The sucker could have caused serious damage to an eye.

The shotgun's main use was snake elimination. We had an old stone drain on the edge of the front yard and copperheads loved to sun themselves in the rocks. A 12 gauge shell full of buckshot works wonders, and avoids the problem of ricochet. It was better for all concerned. I never hunted with the deer rifle, and, in fact, I think I only fired it a handful of times. It was like getting kicked in the shoulder by an angry horse.

In the end I sold the .30 cal to my brother in law, sent the then broken shotgun to the dump and left the .22 cal with my Ex when I split the scene. I have no idea where it may be now. So how does any of that relate to gun control?

The whole idea of Universal Background Checks is the part about universal. Currently all federally licensed gun dealers must get a background check on any person buying a gun. This same rule doesn't apply to private, person to person sales at gun shows. This is the so called "gun show loophole." Closing the loophole, assuming that the system is in place to allow for quick and easy background checks at gun shows, is not much of an issue to me. No, the problem is with actual person to person sales. And in particular sales of existing guns.

As I said. I bought a high powered rifle from one person and sold it to another. No paperwork of any kind was involved. In order to bring that gun, and millions like it (there are over 300 million guns in this country already), into a Universal Background Check scheme would require registration of that gun. Some proper and approved paperwork would have to be attached, legally, to such and such .30 cal rifle with serial number so and so. This would be true of every existing gun in the country. Oh, and that paperwork would, of course, have to include information on the current owner, and any subsequent owner, much in the same way we register vehicles. Sure, lets create a DMV for guns.

I see at least two real problems with such a registration scheme. In order for it to work to prevent guns from falling into "The Wrong Hands," (whoever that is) there needs to be a threat of punishment for failing to get a proper background check before a private sale. That threat of punishment would attach to the last  known registered owner of the gun no matter how long ago he owned it and no matter how many person to person sales had occurred since the first such sale. A gun sold and resold twenty times over twenty years that ends up being used in a crime could result in the arrest of the poor schmuck who needed an extra $200 to fix the brakes on his truck twenty years before the crime was committed.

That's the only way Universal Background Checks would work. It's not like the police can see a gun's license hanging off the stock or hand grip like the license plate on your car. No, this would only work with universal registration of all guns...and gun owners. That last part is the second problem with this idea. It has long been said in the NRA world that "Registration leads to confiscation." That may sound a little paranoid, but I think that it's a sentiment held by many more people than the usual suspects labeled, "Gun Nuts." And it's that sentiment which would cause most existing guns to never be registered at all. If the guns aren't registered the whole thing fails. It really is that simple.

Why do I believe that most folks would not step up to have their gun(s) put into the registry? Well, first I think many gun owners would ask, "What's in it for me?" Piece of mind doesn't drive a lot of action by the American public. If people can't see a benefit to them, directly, they are not going to comply. And remember, for this to work the paper trail has to include every subsequent sale or gift of the gun or the damn thing could come back to bite you years later.

Second, we have a long history of ignoring or avoiding laws that we don't like or agree with. Prohibition is a perfect example, as is drug use (tens of millions of people smoke pot on a regular basis) and even the underground economy of cash payments for legal services (I'll give you $20 to take that old stove to the dump) not to mention illegal ones, come to mind. What makes anyone think that tens of millions of gun owners are going to step up and "Do the right thing?"

So, there is my pretty pessimistic take on gun control. I think that this is one of those areas where we as a nation can condemn something, gun violence, while in the end realizing that the ultimate price of freedom, is freedom. In this case that means the freedom to get shot at by bad people. We don't have to like it, but I think we have to live with it.

DOES THE GOP REALLY WANT TO ARGUE RELIGIOUS LIBERTY?

Oh, the fun that comes out of Washington. Now we have one side wanting to make contraception use a statutory right, and the other side screaming that to do so will infringe on their First Amendment religious liberties. It was that claim, "Religious Liberties," that made me sit up and take notice.

Without going into the entire dust up (if you need more information use the damn internet for something other than tweeting) I keep wondering what would happen if the offended religion were one other than Catholic Christianity. You know, like Islam. Would the defenders of faith based scofflawism be just as outraged if the law in question was similar to the French law against wearing a Burka in public? Or what if the defendant in a murder case case claimed that "honor killings" are part of their religious beliefs? Would that be okay? Or even, as I heard from one talking head, that Quakers could object to their taxes being used to fight wars. How far do we what to push this?

As will be no surprise to anyone who has read this blog, I come down on the side of the common good of society being more important than the particular beliefs of any particular religion. That may seem extreme or even anti-religious, but when one considers that their are over 250 different Christian sects in the U.S.A., not to mention the non-Christian religions and of course the non-religious, it seems to me that any other position can only lead to arguments like we are having now.

This puts me in mind of a similar, although not nearly as important as contraception, place where the beliefs of the few are imposed on the many. I'm referring to the good old fashioned "Blue Laws."  You know, the reason that you can't go out to breakfast on a Sunday in, say, North Carolina and order a Bloody Mary before noon. Or run into the grocery store to pick up a six pack Sunday morning in West Virginia. Most of these have been declared unconstitutional or are at least not enforced (much) but the buying booze on Sunday ones seem to have a lot of staying power.

I have been directly impacted by the NC version, and not because I'm a drunk looking to start early on a Sunday. No, The Queen of the Frontier and I owned a restaurant in the beach resort town of Kitty Hawk, NC and we were faced with this every Sunday morning. In comes a car load of happy tourists from some far away land, like New York, looking for a nice beach brunch with a morning cocktail and wham, I have to explain that "I'm sorry but I can't sell you $40 worth of drinks to go with your table full of Eggs Benedict because it's only 11:00 am." Trust me, that does not win friends and repeat customers.

My take on this was always that, if the preachers wanted to make sure that their flock didn't come to church drunk that they, the preachers, should have a chat with their wayward lambs. Why burden me, my staff and most importantly, my customers, with the problem. We don't see Rabbis marching outside of pork BBQ joints claiming that they should close their doors do we? Of course, this was not an argument that was going to go very far in the American south, but it does illuminate the problem.

If you, or your religion, doesn't like the use of birth control fine. Enforce that belief system on your believers. But leave the rest of us alone, please. Because any law that favors one belief system over another, like the blue laws, violates my First Amendment rights. And the great thing about our great country is, my rights are just as important as yours. Let's all defend them equally, shall we. 

THEY SAY THE STIMULUS FAILED...

Ah, autumn. Leaves changing, football on TV (Let's Go Mountaineers!) and the Republicans still telling the same tired lie about the President and the 2009 so called stimulus. What lie is that, you ask? Well, it's actually a compound lie. One which can indite the president and his policies in multiple ways. They go like this.


"Obama lied because..." Or, "The stimulus failed because..." Or the ever popular, "Obama is a failure because..." See the cleaver combining of the President himself with the failed program. So what is all this lie telling and failing about? It's about one little number... 8%.


Here's what happened. During the run up to passing the American Recovery and Reinvestment Act, the said "stimulus," one of the President's advisors, Christina Romer, then chair of The Council of Economic Advisers, made the prediction that the ARRA would bring unemployment down to the aforesaid 8%. Since that time, of course, the unemployment rate has not fallen to 8%, so that, in whatever Never Never Land the Republican Party resides, the entire program was a failure. Period. No discussion needed. Oh ya, and since Obama said it (by way of an adviser's words) he lied to the American people.


This is A number 1, super high quality BS, and to my mind anyone who holds and expresses that position not only shouldn't run for office, he or she should probably be treated for a mental disorder. Let's start with the "Obama lied," group.


No matter how you cut it, paste it, or fold and spindle it, Ms. Romer's statement was, is and always will be, a prediction. The American Heritage Dictionary of the English Language defines the term:
1. The act of predicting
2. Something foretold or predicted; a prophecy
Nothing in the definition of the word relates in any way to the truth of the statement. In fact, we are faced with predictions all the time which we know may not happen. We may say, when we go to work without an umbrella and it rains, that the weatherman lied, but everyone knows it's not a lie. It was a prediction. If that's not enough how about these gems of prediction: "The fighting won't last more than six months." "The war will be paid for by Iraqi oil." "They will greet us as liberators."  Or my favorite, "We know Saddam has WMD and we know where they are." Each of these came from Bush folks before we invaded Iraq. Each was wrong. Point this out to Republicans and see how many rise up on their hind legs and say that George W. Bush lied. So I think we should agree that predictions that prove false are not, on their face, lies.


But, you say, what about the obvious failure of the stimulus to meet the goal that was predicted. Again, one must start from the proposition that a failed prediction or prophecy as to the result expected from some program or action does not necessarily mean that the program or action was a failure. It just means that the particular program or action didn't match the prediction. I can predict that WVU will win tonight's game by 30 points. If they only win by 20 does that mean that the WVU football team is a failure? It may show that I'm a failure at predicting, but it really doesn't say anything about the success or failure of the team.


Likewise,  while Ms. Romer's prediction missed the mark, I think it's a stretch to then declare the entire program a failure because of it. What Ms. Romer is guilty of is a failure to follow Scotty's first law of engineering: When the Captain asks how long the very important repair to the warp engines will take, tell him three hours if you think it will only take an hour. That way being done in an hour, or even two, means you did better than your prediction and the good captain will keep you around. Had Ms. Romer only thought to predict that the ARRA would hold the unemployment rate below 12% we wouldn't be talking about this almost three years later. And let's not ignore a very important fact. The Great Recession was far worse than anyone predicted it would be. In fact the full extent of the downturn is not yet fully known, but just this year we discovered that it was far deeper and wider than was reported even just a year ago. Under those circumstances it looks to me like the ARRA was a success. But then I'm one of those strange fellows that think that any money pushed into the Main Street economy, so long as it stays in the U.S.A., will act as a stimulus.


Now, it may be that the Republicans aren't just mouthing the talking point of the week when they call the stimulus a failure. It just might be that they have a different view of what a prediction should be. Maybe they like that part of the definition that says a prediction is prophecy. Couple that with their often repeated swipes at the President's acting as if he's "The One," and it all makes sense. Of course, to make the logic work out Obama has to actually, you know, be "The One." I don't think their willing to accept that, so their arguments that the ARRA was a failure, or that the President lied, just make them look stupid. It's going to be such a fun election season. I may have to take up knitting!

THIS MIGHT WORK

In looking back over my growing list of postings I've spotted a scary trend: I've written more posts with the Money label than any other topic. This could be because we are deep into a national financial crisis, or because, just as one thinks a lot about the beach in the dead of winter, I think a lot about money because I don't have much. Whichever it is doesn't really matter. Here's yet another one.

If, as I and a whole bunch of actual experts believe, the country is in a demand crisis not a too high taxes and too much regulation crisis than we need ideas that help create demand for American products and services. The Obama administration is proposing an extension of the 2% reduction in the Payroll Tax passed last December as a way to put more money in the hands of consumers who will, most likely, spend the extra money. This is fine, but since it only extends something already in place it can't really help much more than it already has. It won't create any new spending. We need something more. We need to reform the Usury Laws at the Federal level.

In brief, Usury is the act of charging too high an interest rate on loans and borrowing. Most states have such laws, as does the Federal government. And you would be very surprised to find that the legal limits are far below what Pay Day lenders, sub-prime mortgage lenders and, most importantly for this idea, credit card companies, charge their customers. Why?

Without going all lawyer on you the simple answer is that the U.S. Supreme Court ruled in the 1978 case of MARQUETTE NATIONAL BANK OF MINNEAPOLIS v. FIRST OF OMAHA SERVICE CORP. ET AL.   that National Banks can charge credit card interest based upon the Usury law of the state where the bank is located. They said basically that:

The National Bank Act provision codified as 12 U.S.C. 85,  authorizes a national banking association "to charge on any loan" interest at the rate allowed by the laws of the State "where the bank is located,"

Why does that matter, you ask? Just take a look at the address where you send payments to your credit card company. Delaware and South Dakota seem to predominate. These states, South Dakota in particular, took one look at the Marquette decision and realized that they could attract Credit Card companies who could then charge out of state borrowers based upon South Dakota's Usury rate. Of course, there is no usury limit in South Dakota. That's why so many credit card companies locate there.

So here is my proposal: Congress should amend 12 U.S.C. 85 to allow national banks to charge on any loan interest at the rate allowed by the laws of the State where the borrower resides. That's pretty much it. Of course it would have to apply to all existing balances. The screams of the bankers will be heard throughout the land, but there certainly is precedent for making changes to the terms of a credit card contract after the fact, so to speak.

The credit card contracts themselves provide the answer. They can change pretty much whatever term of the agreement that they want to and we, the borrowers pretty much have to take it. Oh, you don't want to pay the new and improved rate of 26% on your existing balance? Well, just close the account. You can't charge any more on that card, but you do have to pay the balance owed under the original terms. In my proposal the States and the Federal government would be acting for the consumers as their representatives (imagine that) in the clearly unfair and unequal contractual agreements that now exist.

The immediate result would be lower payments on high interest rate cards and other consumer loans which puts more money in the hands of consumers just like the Payroll Tax reduction, but this would act as a new stimulus rather than a continuation of an already in place tax cut. And it really isn't such a big change in the law anyway. Most states have Usury laws and have had them from the beginning. Why, even the hard core of the GOP can't bitch too much. Usury is forbidden by the Bible [Exodus 22:25] [Leviticus 25:36] [Leviticus 25:37]!

SHOW ME YOUR PAPERS!

That phrase, show me your papers, has been immortalized by inclusion in any number of WWII movies over the years. You know the ones: our heroes are undercover in Nazi held territory, the come up to a checkpoint and the nasty Nazi in the gatehouse comes out and asks our heroes for their papers, ie, their proof that they are, in fact, loyal followers of the Third Reich.

It's that connection to one of the worst regimes in modern history which is why, I think, many people were not happy with the Arizona immigration law that raised such a stink last year. The image of a native born citizen of this great country, be he or she Hispanic or not, being asked to prove his or her citizenship when asked by a cop during a traffic stop or on a street corner waiting for a ride, smacked a little too much of Show Me Your Papers.

But that, and the entire illegal immigrant problem got me to thinking. Now, before my more conservative readers blow a gasket and stop reading, let me state that I am in full support of the much used phrase, "What part of illegal don't they get?" Where I differ with my friends on the Right is that I'm enough of a pragmatic realist to know that 12 million status law breakers are pretty hard to find, let alone deport. Clearly, it just can't be done without doing great harm to our rule of law... Show me your papers!

Why, just in the last couple of weeks a rather large ring of document forgers was caught and implicated in what could be the sale of thousands of phony documents. And, as a former employer of hundreds of employees I can tell you that knowing whether the ID that new hire showed me was legit or not fell well outside my abilities. Particularly when the drivers license, for example, was from a different state.

In 2005 congress passed the Real Id Act which requires the states to standardize the design and safety features of drivers licenses. The deadline for this has been extended from May of this year to January 15, 2013. There is still much controversy concerning the Act since it sorta/kinda creates that much dreaded National Id Card. Show me your papers!

But hold on a minute. Considering ID theft, the illegal immigrant problem, the thought of terrorists entering the country on forged documents (see 9/11) and the need for each of us to prove who we are, both in person and online, is a national ID card really that bad? It would, of course, have to be very hard to forge. It probably would need a biometric identity component. And it would have to be universally accepted within the U.S.A.

Don't get me wrong. The idea of having any of my personal data socked away in a government computer system scares the heck out of me. And it doesn't matter which team is in charge, since I don't trust any of them as far as I could toss Air Force One. But the need is still there and growing. Wouldn't you like to just swipe your card in a card reader attached to your smart phone or iPad and be certified by a web site on the other end as, well, you. No more passwords with "letters and numbers and at least one capital letter" BS when trying to use your online banking account. For every potential horror there is a compelling benefit from such a national identity document. If technology can just come up with a truly impossible to forge card, that is.

So, each time my bank makes me come up with yet another password, which I have to write down in order to remember, which means it isn't really safe, I wonder if a national ID wouldn't be a better answer. Except, of course, for Show Me Your Papers!

THIS IS NOT A GOOD THING, PART 2

After rereading part 1, and fixing the typo, I realized that I hadn't finished the thoughts started in that post.

Clearly, I could go on for pages with examples, like the Tea Party claims that Obama has "plans" for stripping us of our freedoms. Or any and all of the claims of the "birthers". Or the "truthers". But, of course, maybe I'm the one fibbing about those guys. In the end, that's the whole point.

So long as our press and media continue to frame all issues as having (at least) two opposing positions, and that those positions, regardless of merit, are equally valid and possibly correct, we will be faced with this type of horse race journalism at every turn. Just check out the Sunday talk show circuit. In this corner we have Dem. (Senator, Congressman, Adviser, Author) versus a GOP somebody, who will be asked softball questions about issues of the day. We'll hear Dem. talking points countered by GOP talking points and, of course, the reverse. This will happen sometimes four or five times and hour regardless of the importance, or lack of importance, of the topic. War good! War bad! Torture good! Torture bad! And on and on it goes.

Here's a thought. How about bringing actual experts on to explain the issues? Of course, then the other channels would find their own experts to counter the first experts and away we'll go again. That is the true harm we face. With no trusted voices we will grow more and more apart, sorting ourselves to an ever greater degree into us and them. This is called Tribalism and we certainly can see one long term result of that type of social separation; can you say Middle East.

Am I being too alarmist here? Maybe, but unlike certain groups on the conservative side of the argument, I don't see our society as being immune from the type of tribal disputes that abound in the world. We just think that we're better then that. We're not. Just look at the recent spat that grew around the Governor of Virginia and his declaration of a Confederate History Month without a mention of slavery. Listening to some of the rhetoric you'd have thought that the Civil War was about to start again!

I think that the best course, at least for the individual, is to try not to take sides at all. Unfortunately, when everyone around you is screaming, it's awfully hard to not start screaming too. Oh well. Is it cocktail time yet?

YUMPIN' YEMENI

The Christmas day attempted bombing of an airliner by a Nigerian man, supposedly trained and supplied in Yemen, has turned up the volume on the left/right debate on what we should do about terrorists. 

In the left corner we have the law enforcement folks. Those who think that the actions of the Crotch Bomber tm, attempting to blow a hole in an airplane as it descended into Detroit, should be dealt with as violations of Federal Laws.

In the right corner we have the War on Terror contingent, most recently represented by former Secretary of Homeland Security, Tom Ridge. On yesterdays Larry King Show on CNN he said this:

“I take a look at this individual who has been charged criminally, does that mean he gets his Miranda warnings? The only information we get is if he volunteers it? He’s not a citizen of this country. He’s a terrorist, and I don’t think he deserves the full range of protections of our criminal justice system embodied in the Constitution of the United States”

In other words, damn the Constitution, full speed ahead into another front in the endless War on Terror. I have a few questions for Mr. Ridge, though.

Just what is it about this fellow, or his actions, which strips him of the Constitutional rights which we freely offer to other legal aliens within our borders? It can't be because he's black, can it? It can't be because he's Nigerian? Is it because he tried to blow up a plane? Well, the Shoe Bomber, Richard Reid, tried to blow up a plane and he was tried and convicted, by the Bush administration, in criminal court just fine. Was it because he had connections with al Qaeda in Yemen? Why should this guy be treated as an Enemy Combatant?

Because that fits within the right's position that all such acts are terrorism and the only way to fight terrorism is as a war. "No ifs, ands or buts about it, we are at war with terrorism and we've got to...."
And that's where the War on Terror bunch starts to change the subject. Even (some) of these chowder heads begin to realize that we can't keep invading every country with any connection to al Qaeda. At least I hope they do.

No, the basic problem here is that those on the right have no faith in the American justice system. Since even before the Miranda decision conservatives stopped trusting that the courts could "get it right" when it came to crime in this country. For that reason conservatives, when they have been in power, lead the charge that has pushed this country to it's position as the prison capital of the world. Justice has become secondary to punishment. So we are expected to see Mr. Ridge's calling this guy a Terrorist as the reason for bypassing the Constitution. Never mind presumption of innocence. Calling him a terrorist puts him into the War on Terror, which is a military and not a criminal justice issue. And anyone, like the President, who disagrees is, well, just use your imagination. I'm sure within the next weeks and months that they'll have lots of names for the President.

But where does it end Mr. Ridge? If all we need do is call someone a Terrorist and puff, all his or her Constitutional rights are forfeit are any of us safe? And would the same apply to Terrorist Sympathizer, or Terrorist Enabler, or Terrorist Leaner? Thought crimes can't be far behind. Of course, they won't be crimes, they'll be acts of war. In the war that can never end.


Here are a couple of links that explore the current situation a little more.

CURMUDGEON'S FIRST LAW

It may be, in the continued popularity of Sarah Palin, that we are approaching a truly staggering national proof of what I like to call Curmudgeon's First Law of Politics. Before stating what it is that the First Law states we need a bit of history.

Personal history, that is. For pretty much the entire decade of the 80's I was the duly appointed City Attorney of a small town in north central West Virginia. Since this town held elections every two years I got a chance to work with five different mayors and about a dozen city council members. That direct exposure to the results of small town politics lead to the creation of the First Law. The fifth and final election was so memorable that the First Law almost wrote itself in the aftermath.

You see, the fourth mayor had some issues with the Sargent of Police. The said Sargent took some medical time off and during that time he grew a rather full beard. It is when the Sargent returned to active duty that things get interesting. According to the mayor, the Sargent reported for duty to the mayor in full bearded glory. The mayor suspended him and told him to go home and shave. When he refused, according to the mayor, His Honor fired him.

Of course, according to the Sargent no such bearded appearance ever happened. He was on his way home to shave before appearing for duty when the mayor saw him. The firing was unjust and unlawful and just plain wrong. And oh ya, I'm suing the city.

The details of the case and even it's outcome are not important. OK, the Sargent won a small settlement but that's not what lead to the First Law. During the course of the litigation another election came up and who do you think ran for mayor? And won? You betcha'. The Sargent ran for mayor while suing the city and in the end had to sign his own settlement agreement both as plaintiff and as defendant. That's what brought forth Curmudgeon's First Law of Politics.

Which states:

People will elect others to local office whom they perceive to be dumber than themselves.

I have since had to modify this to remove the word local.  As we saw so clearly in 2000 and 2004 our utterly connected world makes all politics local. I can sit at my desk and read the thoughts of partisans from all parts of the political spectrum. Hell, I can add my opinion to the mix. So the First Law now reads:

People will elect others to office whom they perceive to be dumber than themselves.

If the First Law is predictive, which of course I think it is, then the Democrats, and the country, could be in real trouble if Palin runs in 2012. The population of voting age Americans who think she is dumber than they are is, well, huge! And growing bigger each and every day. Be afraid. Be very afraid.

IT'S THE JUDGES' FAULT

The continuing debate over Health Care Reform is starting to heat up. I've started to hear that old chestnut about how doctors and hospitals are burdened by the high cost of malpractice insurance, brought about by out of control damage awards, and that we as a nation could lower the high cost of health care if we just enact tort reform.

Some of the arguments for reform include limits on punitive damages, limits on non-economic damages, use of court appointed expert witnesses, the adoption of the English rule that the loser pays and the elimination of elections for judges. The arguments against reform include fairness to persons injured, punishing people or corporations that are negligent and the idea that only by exposing and punishing negligent acts will people and institutions change their behavior. Which political side takes which position is pretty well known, so I'm just going to leave that alone. What I would like to address is the elimination of elections for judges, and how that could have a significant effect on jury awards in general and medical malpractice in particular.

Why should electing judges have any effect on the size or frequency of jury awards? Judges are impartial, right? Well...sort of. We've seen of late that judges can, and do, get their hands caught in the cookie jar when their financial interests and the interests of justice collide. And there's no bigger cookie jar than campaign donations. But, while avoiding even the appearance of a conflict of interest may be a good reason to stop electing judges, I think that there's an even larger conflict that elected judges face. Pleasing voters.

Elected judges like to get reelected. While their appeals to donors can be personal and done in the back room, so to speak, the appeal to voters is public and based on a judges record. And there's the rub. It's far easier to defend your record (to the voting public) as a judge in civil lawsuits if you don't have a long list of the poor injured plaintiffs who you've dismissed out of court before their cases could be decided by a jury. So "bad" cases or cases that could result in huge unjustified jury awards regularly get tried. And juries award huge unjustified sums to injured plaintiffs and we all get to stand back and blame the greedy lawyers. So, as a result, all liability insurance rates go up and more and more cases are settled out of court. More importantly in the medical field, more and more doctors start to practice "defensive medicine," ordering tests and procedures that protect the doctor or hospital from lawsuit, rather than the health and well being of the patient.

As I've said, the public likes to blame the lawyers because they file some really ugly lawsuits. They will include every possible defendant, no matter how remote their connection to the harm. under that tried and true legal theory of "Sue everyone in sight." And our elected judges just roll over and allow such cases to proceed. You see, it's not as if judges don't have any recourse. They do. It's called "The Rules of Civil Procedure." Every state, and the federal judiciary, have them. The rules set out how you start a civil lawsuit, serve notice, make motions, etc. Here's the West Virginia version that I used to practice under.

Now here is the really interesting bit. The rules say that, in order for a party to file a legitimate lawsuit, they have to "state a claim upon which relief can be granted." Say what? In English that means that your lawyer can't just make up a connection between your injury and, say, Dr. Green. There needs to be what's called a causal link. So judges can throw plaintiffs out of court before a case even gets underway. (The particular rule is number 12(b)(6). It also references rule Rule 56, Summary Judgment).

So what's the point? If judges weren't worried about reelection they would have far less inclination to "let a case go to the jury." They might actually throw bad cases out and sanction plaintiffs' lawyers for wasting the court's time in the first place (see Rule 56(g) ). Let a sitting judge charge a few malpractice lawyers with contempt of court and a fine and the number of questionable lawsuits in that jurisdiction will start to go down. Will some good cases get thrown out or not filed? Probably, but that's why we have appeals.

Elected judges are afraid to do this. I know. I've seen it in action. I represented a businessman in a matter involving a contract to buy some real estate. In the course of negotiations the businessman's father hand delivered the contract documents to the seller. When the negotiations went south the seller sued my client and his father! Now, it doesn't take a law degree to see that Dad's connection to this matter was peripheral at best. So, as a favor to my client, I filed a 12(b)(6) motion to have the case against his father dismissed. The judge turned us down saying "I think we should let the jury decide." Result...Dad had to get his own lawyer and proceed with the case. He was ultimately dismissed as a defendant and his son won his case, but at what cost? The father had to pay his lawyer and take time off from work simply because the elected judge was facing opposition and, to a judge, letting the jury decide is always safer than making the decision yourself.

In medical malpractice cases, as we've seen, the results can be much more expensive for the parties and for society as a whole. What should we do then? I think that judges at every level should be appointed for either a limited term (say 12 years for trial judges, 20 for appellate judges) or until they reach a mandatory retirement age. Governors can do the appointing at the state level, just like the President for the Federal Bench, and, if need be to get such an idea passed, confirmation by the state senate. We already know how to do this, it just requires some political courage.

Oh wait. Political courage seems to be in short supply every time this subject comes up. Maybe next year. Ya, sure!