Begging The Question

Friday, April 16, 2004

It's Friday and I am tired of reading trial transcripts - therefore, let the blogging commence
Via Tom Smith at The Right Coast I discovered a new blog today: Inclined to Criticize. I think it is a group blog. Pay particular attention to RJM's postings (R as in Robert, J as in J, and M as in McNamara - no, not that Robert McNamara). Very smart and very funny blog well worth your time. Note that the blog leans to the right (from what I can tell) so our readers from St. Petersburg may not want to go there. Well, they are probably at the gun range rather than reading BTQ anyway.

Bonus find at Inclined to Criticize (sorry, no permalinks at I2C): this nifty little National Budget Simulator. So much fun. You have to try it. There are two versions: a complex one for mathematicians and econo-nerds and a simple one for lawyers and poets. Actually, they are both simple, but there is a "full" version that is more time consuming and an "abridged" version that takes less time to complete. Go give it a shot. I ended up with a budget surplus of $75 billion. It's amazing what you can do when you gut space exploration, Medicare and Social Security!

In addition to I2C, I have added the NEPA blog to the blog roll as well. It looks like a good source for environmental law news. If you have an interest in environmental law you should check it out. Of course, if you had an interest in environmental law news you probably knew about the NEPA blog before I did (Hat tip to Ernie for the pointer).





Housekeeping
I've been too busy to write much substantive stuff, but I hope to find some time this weekend, so keep checking. In the meantime, because I've needed to do it, and because I needed something to post on, I did a little spring cleaning on the ole blogroll. I deleted a few sites I never check anymore, at least not from here, added a few others, and moved some around, largely for aesthetics. It's not like divisions I have on the right actually mean anything; I check most of those sites every day, and a lot of them several times a day. Anyway, a word or two about the ones I added.

1. Jeremy Blachman is a law student who writes a great blog. Very solid stuff, and lots of humor too.

2. Naked Furniture is a blog by a future lawyer, but I love her because she is a prodigious user of some glorious curse words. There was a really nice one she was longing to call someone recently, and she can use it on me, although I don't think it's exactly a term of endearment.

3. Notes from the (Legal) Underground is a little hard to summarize quickly, especially because I haven't been going there very long. But it's good. The author is a plaintiff's lawyer, and I especially enjoying reading his war stories.

4. The Idea Shop is, "where the dismal science gets groovy." It's kind of an everyday economics site. I don't understand anything about economics, so I'm often on the lookout for a place that helps it make sense.

5. Stateline is a really handy compendium of news from all fifty states. For instance, by clicking on a state at random (Minnesota), I find out that Jesse Ventura is considering running for President in 2008. He says he would run as a "strict indepenedent." In his words, "no party -- no nothing." Hmm. Sounds like my life.

6. The other additions were all very good sites that were on Fitz's blogroll, and I was too lazy to keep scrolling down there to check them out. Phil Carter's Intel Dump is as good as it gets for analysis of military policy and news. Trivial Pursuits is another one that's hard to sum up. When Fitz added the site, he said, "This guy likes hand-to-hand combat and Japan. He also has a picture of Bill Lumbergh on his page." That's either enough for you, or nothing is. Finally, Unbillable Hours is an excellent site by a family lawyer from New Jersey. It's thoughtful, deep, but always readable, so I don't mean that in a ponderous way or anything. Good stuff.

Anyway, in lieu of a real post, that's what you get for now. If you click on any of these sites from here, don't even worry about telling 'em I sent ya, because your computer will do that anyway. And people freak out about Gmail.



Thursday, April 15, 2004

The BTQ Review: Confessions of a Tax Collector
Today in our (very) occasional series of reviews, I am pleased to present Confessions of a Tax Collector: One Man's Tour of Duty Inside the IRS, by Richard Yancey. I gave myself a midnight, April 15, deadline to read and review the book, and it looks like I made it with time to spare. Of course I didn't have to fight the mob at the Post Office like the rest of the suckers.

"[T]he power to tax involves the power to destroy."
--Chief Justice John Marshall, McCulloch v. Maryland, 17 U.S. 316, 431 (1819).

Meet one of the destroyers. Richard Yancey spent twelve years working for the Internal Revenue Service as a "revenue officer," the name the agency gives to tax collecters. (By the way, they give them fake names to take into the field, which makes sense given some of the threats Yancey receives.) These are the people who knock on your door and say, "We're here for the money." If you can't pay, these are the people who levy your bank account, seize your assets, and change the locks on your house. They can plug your social security number into a database and, within moments, know more about your life than you probably know yourself. It is very easy, given so much power, for revenue officers to start thinking of themselves as "demigods." As you find out from Yancey, many do.

Yancey's life was going nowehere: he was a failed writer tired of taking a string of dead-end jobs. So he answered a blind job ad in the paper offering more money than he had ever made in his life. It turned out to be a job with the IRS. At first, Yancey isn't sure why he sticks with it, and the job clearly starts to get to him. His personal relationships and outside interests suffer, his mood changes, and his instructors and co-workers are a bunch of manipulative and petty connivers and head cases. But along the way, Yancey finds his purpose when he runs into some tax protestors -- the nuts who think they have some secret trick to escape paying taxes. (I had a hearty laugh when Yancey goes, undercover, to one of their meetings and introduces himself as "Henry Thoreau.") He takes on his mission for the Government with a renewed zeal, his personal life improves, and he becomes a new man. In fact, Yancey becomes the perfect revenue officer, a star, and stays with the Service for several more years.

If you think this is a book about the redemptive effects of paying taxes, it isn't. In fact, Yancey's book is quite entertaining during the first half -- his training period, when he knew nothing -- and becomes more introspective later on, and Yancey starts to understand the psychological toll of being among the most hated workers in the most hated federal agency. When he interviewed for the job, a supervisor asked Yancey if he would be able to sleep at night after seizing someone's house. "You see, Rick, the kind of people I'm looking for seize houses even if it means they can't sleep at night."

I could very easily see this book becoming a movie. Yancey paints wonderful portraits of the oddball characters he works with and the deadbeats...uh, "taxpayers" he's forced to reckon with. His instructor is the IRS version of Col. Kurtz, except that he himself is the errand boy sent to collect the bill. The numbing bureaucracy, Machiavellian office politics, and extensive unwritten rules of practice would be familiar to any office worker, but here it's combined with private-eye style fieldwork, tracking down assets and "executing what they fear." And they only care about taxes. They can't say anything about the bruises they see on kids in a home they visit, because that would be unlawful disclosure of confidential taxpayer information. There's another can't-do-anything event I won't give away, because it's pretty much where Yancey hits rock bottom.

The reason this book would be a good movie is the reason it's less-than-great as a nonfiction book. Yancey changes a lot of details to preserve confidentiality, so we never really know how much of this happened, and how much (if any) got embellished in the process of writing. The revenue officers shred virtually everything they write down, so he had no notes of conversations. Who knows -- there may be even more juicy stories Yancey couldn't tell. And the strange thing is, if it were styled as a work of fiction, you wouldn't belive a word of it. It's scary -- and funny -- because it's (basically) true.

In the end, Yancey finds his soul, and I liked the way the book ended. It was a very enjoyable and easy read, humorous and thought-provoking. Oh, and you don't really need to know a bunch of tax jargon to follow it. For the legal set, I would compare it to Double Billing by Cameron Stracher, but I liked Confessions of a Tax Collector even more. I strongly recommend it, but the season may have passed today. Of course, if you didn't pay your taxes, you could curl up with this one year round. You could read a little bit at a time....with interest.
Won't you gentlemen have 5 and a half Pepsis?



Wednesday, April 14, 2004

Playing the Random Sentence Game
I'm a little busy with real work to be able to post much right now, so I thought I would do something fun and easy and play the little game I spied on Crescat here and here.

1. Grab the nearest book.
2. Open the book to page 23.
3. Find the fifth sentence.
4. Post the text of the sentence in your journal along with these instructions.

In my case, the nearest "book" was the brief for the United States in a case I'm working on. The fifth full sentence on that page is:

"In this case the defendant cannot establish either one."

I think that pretty well sums up my job. As for the nearest actual book, I'm not going to count my criminal code compilation, the Sentencing Guidelines Manual, the Bluebook, my pocket version of Black's Law Dictionary, and the Texas Manual of Style. For one thing, it's hard to figure out what is an actual "sentence" in these books (do I count chapter headings and fragmentary definitions?). For another, they don't give me the ironic payoff that I want in this post (don't peek to the end!).

But, since I had them opened for this exercise, here's what we get, respectively (with my best judgment over what I'm counting as a sentence):

"The original rules of procedure for the District Courts were adopted by order of the Supreme Court on Dec. 26, 1944, transmitted to Congress by the Attorney General on Jan. 3, 1945, and became effective Mar. 21, 1946."

"The principles and limits of sentencing accountability under this guideline are not always the same as the principles and limits of criminal liability." [That's under the guideline for "relevant conduct," and folks, I'm here to tell you, truer words were never spoken.]

"Literally, 'cf.' means 'compare.'"

"A principal's delegation to an agent, without restriction, to take all acts connected with a particular trade, business, or employment."

"Use parenthases to enclose numerals in a numbered series of clauses."

Oh, and I forgot two other things close by. One is the appellant's brief in the case I've got, which gives us:

"The undersigned counsel presents this Anders brief to the Court, having conscientiously examined the record of this case and having determined that there is no meritorious ground for direct appeal." [I previously discussed Anders cases here.

The other one is close, and is basically a book, but it's on another shelf, and I'm not going to pull out the measuring tape. But it's a Federal Judicial Center publication called Guideline Sentencing: An Outline of Appellate Case Law on Selected Issues. In that one, the fifth sentence on page 23 is:

"If, using a later version of the guidelines, a defendant's offense level is increased but is offset by a new reduction, resulting in the same or a lower adjusted offense level and sentence, there is no ex post facto problem and it does not matter if the earlier or later guideline version is used."

Anyway, the closest actual book that I would call a book is Strunk & White's The Elements of Style, 3d ed. Again, there is the problem over how to count things like topic names and whether the examples count separately or not, but this classic little book is more readable than some bestselling fiction, so I'm using it. Plugging The Elements of Style into the matrix reveals:

"Vigorous writing is concise."





From CNN I learn that the St. Petersburg (Florida) Democratic Club has threatened the life of Donald Rumsfeld. The Club (are these the same people who were somehow incapable of reading and completing their voting ballots in 2000?) ran an ad in the Gulfport Gabber (the local paper) in which the club says of the Secretary of Defense,
"We should put this S.O.B. up against a wall and say, 'This is one of our bad days,' and pull the trigger."
I know you will find this shocking, but no one from the club could be reached for comment. COWARDS rarely can be reached for comment. [Insert profanity-laced diatribe excoriating the Democratic Club here]

I am glad to see the DNC and the Kerry campaign moved quickly to distance themselves from this disgusting ad. I'll be even happier when the members of the St. Pete's Democratic Club are prosecuted for threatening the Sec Def's life.



Tuesday, April 13, 2004

Milbarge At Large: An Irregular Autobiography
What I am doing at work: Rehearing petitions. Man, I hate these things. First of all, they need to be done expeditiously, so not only do I have to drop everything to do them, they always seem to arrive when I have too much else to do. Probably 90% of the time, they are a huge waste, because all the petitioner does is reargue the merits of the case. (Who was it that called petitioning for rehearing the most abused privilege for appellate litigators?) In the other 10%, I read the petition and get a chilling fear that I have royally screwed up something in the first go-round. Fortunately, this has never proven to be the case, and I have never had to go to the judges, hat in hand, and recommend granting rehearing. Of course, the attorneys here naturally make mistakes, and the judges disagree with recommendations from time to time. But every staff attorney's worst nightmare, or most embarrassing moment, is having to recommend rehearing because of something he or she missed in the original memo. I know of one attorney who isn't even working here anymore, but we still talk about the time he had to recommend granting rehearing because he miscounted the deadline for filing something (granted, sometimes it can be tricky not knowing which days not to count). Partly the embarrassment is professional -- it typically means your error has been pointed out by a pro se litigant sitting in prison. Partly it's just a huge waste of time for everybody involved. But mostly it just sucks to have to publicly admit your mistakes.

Anyway, the one I have now is one of the ones where at first I thought I really messed things up. Turns out, I don't think I did, but I could have done a better job with the original case. The truth is that even when we have to recommend granting rehearing, it almost never results in a win for the petitioner (I'm just talking about pro se cases like habeas and sec. 1983 here). It might mean getting there by different means, though. One that comes to mind is a colleague who missed that the district court had granted a certificate of appealability, which meant this court should have affirmed instead of dismissed, but the end result was no relief to the prisoner. I should also note than in some of our cases, we have a default procedure whereby the petition is automatically denied unless a judge steps in to take some action -- it saves the judges the trouble of having to send us a letter unless there's something to the petition. So, in the end, I'm probably making too much out of my aversion to these petitions, but I'm never really pleased to see one land in my box.

What I am doing at home: Something approaching a metric ton of laundry. Also, I have been tearing my apartment upside-down searching for a photograph of Fitz and me from a Halloween party a few years ago. I have looked in all the likely places, so now I'm thinking I must have put it somewhere else "so I wouldn't forget." I do that kind of thing distressingly often. Also, as I rummage through boxes of junk in my closet, I constantly run across stuff I forgot I even owned. Why the hell have I carried these items, in some cases, from college to law school to here?

What I am reading: Mostly still catching up on magazines, although I'm working on a good book that I will review here later this week. Watch this space. Oh, and I ordered the two new books I mentioned last week (#4). Here's how behind I am in my magazines. I went to the bookstore to stock up on this month's issues from the magazines I don't subscribe to. I looked them over, realized that I had not read them, and purchased them. When I got home I realized that I already had them but had not gotten around to them yet. So now I have two copies of three different magazines' April issues. I think this is the final straw in pushing me to subscribe to them. I hadn't yet because they were just occasional purchases, but now I buy them almost every month, and would save money along with only getting one per cycle.

What I am watching: Not too much now that basketball season is over. I did watch two good old movies over the weekend. The one I had not seen was The Ox-Bow Incident with Henry Fonda. I think I had read, or at least was assigned, the book years ago, but the film is a classic. Hardly a wasted frame in the whole thing, and superbly acted. If you don't know it, the story is powerful. It is set in the 1890s West. Word comes to town of a murder and rustling, and a lynch mob forms in the guise of a posse. When they find their scapegoats, the tension builds like a pressure cooker.

The other movie, the one I had seen, was Flight of the Phoenix, with James Stewart and Richard Attenborough. It's not the sweatiest movie ever made, but it's a contender. Stewart is an aging oil company pilot who crashes in the Sahara with about a dozen passengers. There are plenty of excellent supporting players, and it's interesting to see who can handle the strain and who breaks from the desparation. One of the passengers is an engineer of sorts who is insufferable but convinces the gang that they can build a new plane out of the wreckage of the old one. I saw that they're making a remake of this movie with Dennis Quaid in the Stewart role.

One other thing, a bit of foreshadowing. In Ox-Bow, one of the accused is played (very well) by Dana Andrews. I couldn't place him while I watching it, but I later realized he was in The Best Years of Our Lives. That's an all-time favorite, and if I had to pick, say, ten films to tell the story of America, it's one of the easiest ones to choose. In fact (here's the foreshadowing), I may try to do that in a post soon.

What I am listening to: A little of this, a little of that, but lately a lot of the Grateful Dead. I wouldn't call myself a "Deadhead," but I think I'm on the bus. I'm much more of a Bobby fan than a Jerry fan, and so my favorite songs tend to be the ones Weir sings. (I've even seen Weir's band RatDog live.) One I've had in my head lately is "Promised Land," and I love it when they rip it open at "Los Angeles, get me Norfolk, Virginia/Tidewater four ten oh nine." Right now I'm playing disc one of Hundred Year Hall.

What I am thinking about: Reno and Ashcroft before the September 11 commission. Hey -- doesn't "Reno and Ashcroft" sound like a great idea for a sitcom?! After Dour John is tossed out of office, he moves in with Janet and little Elian in a swinging apartment complex in West Hollywood. Hilarity ensues. In the pilot, there are echoes of Who's the Boss? when one accidentally spies the other stepping out of the shower. (I'll let you pick who spies whom.) In future episodes, Janet calls in the National Guard to get the monster in Elian's closet, with predictable results, and John spends $8,650 on curtains.

Peeve of the week: Alarm clocks. Rain. Stupid drivers who almost run me over. Headaches. Deadlines. Flourescent lights. What else ya got?

Today's tidbit: In trying to think of these little nuggets of information about me, the strangest things pop into my mind. For today, the one that popped was that I spent almost all of my third year of law school sleeping on my couch instead of in my bed. Now, when Fitz has to sleep on the couch, it's bad news, but for me, I'm still not sure why I did it. I guess part of it was that I could fall asleep to the tv or music out in the living room. Part of it was that it kept my bed made. Part of it was probably that it was more comfortable (I have a new matress now). Otherwise, I don't know. Just weird, I guess.





The Rise of the Machines
CNN reports that a robot, called a PackBot (manufactured by iRobot Corporation), was destroyed in action for the first time in Iraq. The company CEO was ecstatic, noting that the destruction of the robot was a "special moment - a robot got blown up instead of a person."

The story reports that between 50 and 100 PackBots are now being used in Iraq and Afghanistan for battlefield reconnaissance, search-and-destroy missions (of explosives), and ordnance disposal. The 42-pound base unit, known as the PackBot Scout, costs around $50,000 and operates in adverse conditions such as navigating steep terrain, exploring mountain caves, falling off cliffs and fording streams. When fitted with a special arm, a PackBot can reach and disrupt booby traps that have emerged as a weapon of choice among Iraqi insurgents.

This is a good development for our troops in Iraq. Robots are protecting our troops by replacing soldiers in some of the most dangerous battlefield tasks (compare to Gov. Arnold in Terminator 2: Judgment Day). Note, however, that battlefield robots are not just about saving lives. They have also been proven to be effective at destroying targets - successfully striking al Qaeda leadership targets for example (think Gov. Arnold in the original Terminator). Read Gregg Easterbrook's article on Hellfire missile-equipped Predator drones here and Phil Carter's Slate article on UAVs and other futuristic military technology here. For more on the Predator UAVs, read this article from Aviation Now and this article from National Defense Magazine.

On one level this is really cool - robots taking over for soldiers means fewer soldiers' deaths on the battlefield. On another level, witnessing the future now makes me uneasy. The increased use of battlefield robots raises two issues: (1) Too many sci-fi novels and movies begin with the seemingly benign use of robots to make life safer for humans only to end up with the machines trying to take over the world; and (2) the more pressing concern raised by the ability to deploy a robot army - the ease with which such an army could be deployed. If the potential for human casualties is reduced, then the political costs of going to war are lessened significantly.





Photojournalism from BTQ's reporter embedded with the US Army's 10th Mountain Division

Monday, April 12, 2004

Anti-Discrimination Protection For Gay Federal Employees
Recently, Scott at Life, Law, Libido pointed out (first here and then here) the decision by the Office of Special Counsel -- the federal agency charged with protecting federal employees from "prohibited personnel practices," including discrimination -- to remove information about discrimination based on sexual orientation from its website. The agency head said he was "unclear" about the legality of extending such protection to gay employees. Scott has all the info, but the law is pellucid -- anti-discrimination protections apply to gay employees discriminated against on the basis of their sexual orientation.

After receiving some flack for this decision, the OSC has now reversed itself and announced that "It is the policy of this Administration that discrimination in the federal workforce on the basis of sexual orientation is prohibited." Here is the official press release. I guess it only took them two months to figure out what Scott tracked down in what was probably a few minutes, but hey, the wheels of justice turn slow. (Link to this news via Fedlawyerguy.)





A Merit Badge In Boycotting
First, there was outrage over several United Way chapters severing ties with the Boy Scouts, including calls for a boycott from giving to the United Way. Now, more outrage over a report of ties between the Girl Scouts and Planned Parenthood. And yes, a boycott is under way against Girl Scout cookies too.

I'm not sure if I'm trying to make a point here or just pointing it out. People certainly have a right to refuse to support any or all of these organizations. I wish the Boy Scouts didn't take some of the positions it does, but they have a right to do so, and on the whole it's a positive experience for many, many kids. And I say ditto for the Girl Souts, despite its handing out of Planned Parenthood sex-ed materials.

However, I think the best course here is local action by parents, not nationwide Blame Canada-style boycotts. As one of the stories linked above notes, parents talked to local Girl Scout folks and got them to discontinue an association with Planned Parenthood. See -- it works. If you're a parent sending your kids off to scout, you darn sure better know the Scout Master/Den Mother well enough to have a conversation with about what the kids will be doing. So, talk to them and say so if you think a ten-year-old girl doesn't need to know how a boy puts on a condom. (I'm sorry I can't offer an alternative to the poor woman who was embarrassed to look at the sex-ed materials with her husband.) Perhaps the time one spends typing press releases could be better spent involving oneself in the troop's activities. Why does a mother in Texas care what kind of deviant whores they're raising in Connecticut? Why does everyone have to make a federal case out of everything?

(Disclosure: I do not, and have never, belonged to or given money to any of the above-named organizations, with the substantial exception of large-scale purchases of Girl Scout cookies. Also, I am eating these as I write this. For what it's worth.)





Congress Giveth, The Supreme Court Taketh Away, Congress Tries to Giveth Back
I think I first saw this in the U.S. Law Week. Georgia Congressman John Lewis has a bill pending (with a bunch of co-sponsors) that would respond to recent Supreme Court jurisprudence on Title VII and the ADA. The bill explicitly states that Congress intended, for example, for state workers to receive the same discrimination protections afforded to private workers.

Here is a summary fact sheet on the bill, and here is a more detailed section-by-section breakdown. I count no fewer than nine Supreme Court cases the bill would attempt to overturn. Some of the more notable: Alexander v. Sandoval, holding there is no private right of action in a disparate-impact claim under Title VI; Circuit City Stores v. Adams, holding that employers may require employees to sign arbitration agreements that eliminate their ability to sue in federal court over discrimination; Buckhannon Board and Care Home v. West Virginia Dep't of Health and Human Resources, which rejected the "catalyst" theory for recovery of attorney's fees; Kimel v. Florida Board of Regents, which held that the Eleventh Amendment barred state workers from suing for ADEA violations; and Feddie's favorite Justice Kennedy opinion, Alden v. Maine, which held that state workers cannot even sue in state courts for violations of federal law, thanks to the Eleventh Amendment. (I didn't want to search forever for a cite wherein Feddie states that Alden is his favorite Kennedy opinion, although I know I've seen him say as much, and here he expresses "glee" at the holding. Picturing Feddie gleeful is not good medicine for a case of the Mondays, especially over an abomination like Alden.)

I have grave doubts that this bill on Capitol Hill will become law, especially not in an election year. And I'm really dubious that it can overturn some of the cases it purports to (especially Kimel and Alden). But it's not unprecedented -- the 1991 Civil Rights Act was a similar response to what Congress perceived as overly-restrictive Supreme Court interpretations of the civil rights laws. (No doubt Lewis had this in mind, as well as the 1964 Civil Rights Act, when he called his bill the Civil Rights Act of 2004.) Anyway, I thought I would pass this along for anyone who's interested in this kind of thing. If you want to follow it, it's H.R. 3809. I don't have the Senate counterpart number handy, but I believe its sponsor is (the other) Kennedy.



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