Monday, June 29, 2009

I wish there were more civil litigators on the US Supreme Court...

The Supreme Court gets so damned political that it can drive a civil litigator crazy. Take the Ricci case. In this case handed down today, the five member majority held that the 17 white and 1 Hispanic firefighters were entitled to partial summary judgment on the claim that the City had acted without a proper motivation in throwing out an exam that resulted in less minorities passing as a percentage than the white folks who took the exam.

Summary judgment is a hearing or proceeding where a court must find there can be no reasonable dispute about a set of material facts that underlie a legal conclusion (See Federal Rules of Civil Procedure Rule 56). Sorry, my non-favorite five, but you are all wet. There are significant disputes over facts here that would have justified denial of the motion for partial summary judgment.

Just read the first section of the majority opinion, and then read the first section of the Ginsburg dissent (not to mention the fight over facts between Alito in his concurring opinion, where he really shows he has no clue about how to weigh competing facts in a summary judgment proceeding, and Ginsburg's end-of-dissenting-opinion reposite). In her main dissent, Ginsburg points out two significant facts: (1) other cities or municipalities had given more weight to local factors and oral exams than written exams and saw significant increases in minority scores where previous tests had seen poor minority test-taking results and (2) there was clear evidence that minorities more often had trouble getting books on time, or having enough money to buy all the books necessary to adequately study for the exam. That alone should justify the City's decision that it was entitled to a trial on the merits as to whether it's actions were reasonable. After all, that is the question for summary judgment--and these justices know better. It's just they are all fired up (pardon the pun) about civil rights laws in general...and they now have a decision that district court judges will likely ignore when people cite that case as precedent on civil procedure rules for summary judgment.

As to the facts in the Ricci case, I'll be the first to admit that oral exams may create more subjectivity in testing, and that at some point, not having the bucks to get the textbooks for a lieutenants' or captains' exam is close to a whine. But there is certainly a question of fact for a jury to decide as to whether the City was motivated by irrational and discriminatory impulses. By the way, I didn't see such solicitiousness by the non-favorite five with minority or women plaintiffs in these sorts of civil rights cases. Why the sudden reversal of sensibility when mostly white guys are involved? Sorry for that snark, but it is staring us in the face here.

Related to the above, Justice Ginsburg is correct to say that if the 5 man majority of Justices want to limit what I would personally agree with them was too loose a standard on the "disparate impact" test, common sense jurisprudence required that they remand the case to the trial (district) court for further evidence-taking and hearings under the modified standard they were enunciating. In other words, vacate the trial court's denial of summary judgment, but don't do what the five man majority did, which was summarily enter an Order granting the summary judgment and deny the City a right to defend its intent in open court.

Finaly, where is the traditional conservatives' concern or deference to decisions of local governments? It is like the Supreme Court majority of five acted like Justice Brennan in reverse and allowed an individual (or small group of individuals) to overturn a decision of an entire City. What is less surprising, unfortunately, is that the majority fails to mention let alone understand what any historian of the City of New Haven can tell you, which is that the City has a history of racial tension, and that the City was trying to avoid dragging that history through the courts if it had not rejected the firefighter's test. That's what made the City's decision, in light of the facts Ginsburg identified, rather cautious...or should I say "conservative"?

I'd say the non-favorite five failed Civil Procedure 102 (not 101) today.

Sunday, June 28, 2009

Forty Years Ago, They Knew How to Make Freaky Music

Like this.

Yes, Joe Byrd and the Field Hippies. Too much for AM radio, and too much for most FM radio at the time, too. But just fine for today's Internet. Maybe that's why my teenaged son's generation listens to this sort of music on the web--and doesn't have the slightest interest in AM or FM radio.

For those interested in Joseph Byrd (a distant relative of the political Byrd family), here are the Wiki entries on Byrd himself and the one and only album of the Field Hippies--and the amazing eponymous album by The United States of America in 1968. Here are two tracks from that USA album on Youtube: "The Garden of Earthly Delights" and "Stranded in Time."

My wife, son and I were privileged to meet the USA drummer, Craig Woodson, in the late 1990s in Orange County where he appeared during his self-financed tour to introduce ethnic percussive education to diverse audiences. He signed my copy of the USA album (I also own the Field Hippies album) and held it up to the audience to say how glad he was to be remembered for an earlier life accomplishment. He showed himself during the show to be a wonderful, warm human being. Now, if only I could meet Dorothy Moskowitz and Joe Byrd!

Saturday, June 27, 2009

Saturday Night Review of Book Reviews 6/27/09

1. The New York Times has an interesting, short review of a book about the personalities behind the Industrial Revolution (Gavin Weightman's "The Industrial Revolutionaries: The Making of the Modern World 1776-1914").* Too bad the reviewer appears to know little about macroeconomics, or else he might not have belittled Weightman's insight about Great Britain's fatal embrace of "free trade." That the reviewer does not recognize the phrase "free trade" as a propaganda phrase is itself evidence of the reviewer's macroeconomic ignorance.

*If one reads this page from Amazon of the list of books Weightman has written, his newest book appears to be a summation of the research from his previous books.

2. Here is a companion review to read; a review of what sounds like a promising book about the cultural changes in America that reflect the later period of the Industrial Revolution through the end of World War I. Jackson Lears is a famous historian among historians and his "Rebirth of a Nation: The Making of Modern America, 1877-1920" appears mighty interesting, though I am bothered by what the reviewer noted about his blind spot about African-American history (Note too, at the Amazon link for the book, that an Amazon reviwer criticizes Lears for starting at the end of the Reconstruction Era, noting that many of the imperial cultural sensibilities had begun during Reconstruction--again, an omission that suggests Lears is weak on the relationship of African-American history to general American history). I'll have to take a closer look at the Lears book next time I'm at a retail bookstore in the area.

3. Here is a review of a new book about John Dillinger, a flamboyant criminal who was the first of the wave of "criminal-heroes" idealized by J. Edgar Hoover in order to hide his failure to initially confront organized crime, and to choose relatively easy targets like Dillinger (Dillinger's flamboyance made him somewhat easier to find and target than, say, Al Capone). Too bad Max Lowenthal's great but long out of print book, "The Federal Bureau of Investigation" (William Sloane, 1950), was not available to the reviewer for a wider perspective about Dillinger and the crime spree of bank robbers in the early 1930s--and the rise of the mythology of the F.B.I. that was not broken until after Hoover's death.

4. Unfortunately, we must now return to the saga of the continuing attack made against I.F. Stone. This week, we have, in the Washington Post, a review of the newest Izzy Stone biography by D.D. Guttenplan. The reviewer, a historian named Michael Kimmage, essentially admits he knows little about I.F. Stone and the period of the 1930s. He also shallowly believes there is arguable merit to the view that Stone was a spy for Soviet Russia in the 1930s. In the review, professor Kimmage engages in a selective and misleading attack on Stone. He quotes an article form Stone, where Stone called the Soviet Union "the greatest social experiment of our time..." and uses this as an example of Stone's supposed support for the Soviet Union and support for the repression of the dissidents in the Soviet Union under Stalin.

A look at the Amazon "Look Inside" for the book under review (again DD Guttenplan's new bio of Stone, which I have not seen in our little burg of Poway) reveals that Kimmage is being highly misleading to his readers. At page 128 of the Guttenplan book, he quotes Stone's sentence in full from Stone's article in which the quote appeared. The full sentence Stone wrote states:

"The Russia of 1937, though still in many respects absolutist, as all Russian governments have been for centuries, is nevertheless the scene of the greatest social experiment of our time."

I don't know about you, but how many Communists do you know of in the mid- to late 1930s who compared Stalin to autocratic Czars? How many Communists called that Communist regime "absolutist"?

In the same article, Stone also acknowledged there had been, in the Soviet Union, "a hunt for and extermination of suspected dissident elements that has left the outside world bewildered..."

The article Stone wrote was not about the Soviet Union. It was about the Western democracies needing to band together, and yes, even side with "absolutist" Russia against the Fascist menace--something that occurred four years later in 1941. Kimmage should be ashamed of himself for his sly and misleading use of that quote in that manner. Stone's article, then, is not an apology for Soviet oppression. Instead, it was a realistic appraisal of where the world was heading in the late 1930s as war began in Europe and spread throughout the globe.

Later on page 128 of Guttenplan's book, Guttenplan quotes Alfred Kazin, a respectable literary critic who had left his Trotskyism behind by the end of the 1930s, who said of himself, "Even for those who knew the [Soviet] trials were wrong, the danger was Hilter, Mussolini, Franco...I was tired of virtue, and now wanted to see some action" against these Fascist leaders and their militarist nations. So, too, was Izzy, who was so concerned with rising anti-Semtism along with Fascism that he changed his name in 1937 from Isidore Feinstein to I.F. Stone, as if his physical looks did not scream "Jewish" to those who were anti-Semitic. Yet, the defamation that Izzy was somehow a Soviet spy has begun to califiy and harden.

5. And finally, in the NY Review of Books, a thought-provoking summary version of a lecture about the killing fields of Europe in the 1930s and 1940s under Hitler and Stalin, with a short summary of the forced movement of German nationals from Eastern Europe immediately following World War II, something not well known among most Americans. The historian lecturer, Timothy Snyder, appears to be someone worth watching and reading.


Sunday, June 21, 2009

What Krugman says...

Krugman gives us the correct analysis of the health insurance debate. And the article in The New Yorker he cites is a mind opener in its detail and understanding of how doctors becoming business people can drive costs in a way that is destructive to any system, public or private.

With regard to the health insurance debate, I am appalled at the fact that Democratic and Republican congresspeople and senators can bluntly say they are against a "public plan" option in any bill because it would work--and not be immediately facing a primary challenge the next time they seek re-election. But as a friend said to me tonight, "Mitchell, remember who owns this country." Still, the bluntness surprises me.

Another personal story, really funny: A old guy at our family's synagogue comes into the sanctuary, where I greet people as president, and says to me, "Better take care now. The government's gonna take over our health care and mess things up like they did with the financial industry." I said, "You mean, like Medicare? How about this--you take my Blue Cross plan and I'll take Medicare? Is it a deal?" He smiled with recognition, and said, "Okay, I see your point." Yes, I said. Medicare is a government plan. And it's cheaper in cost than private insurance company bureaucracies and he doesn't have to worry about whether he has enough money to see a doctor or be treated in a hospital. Amazing how propaganda works on someone who is actually in the system and benefiting by that system, isn't it?

That we're not seriously discussing single pay or Medicare for All is a triumph of lobbyists and political corruption. It really is that simple.

Saturday, June 20, 2009

Tom Paxton on the bailout of bankers and financiers

This Youtube video reminds us of the whimsy and insight of troubadors. We miss their slower, kindhearted sensibility in a fast-paced world. Apparently, there is an earlier version going back to the Chrysler bailout from the 1970s.

Tom Paxton, for those who may not know, was a second tier folksinger from the 1960s, which I hope is not a criticism. He wrote this haunting folksong that the Move turned into a power ballad before the phrase "power ballad" was known.

Friday, June 19, 2009

Did the Supreme Leader in Iran just say, "Bring it on?"

Remember when the last President we had said, "Bring it on?" and Iraqi terrorists brought it on against him and our military?

I wonder if the Supreme Leader in Iran just said the same thing...

Too bad this may end up being used by Arab propagandists in Arab news outlets by those who don't want to talk about Iran's internal issues. Still, a day in the life of the occupation may not have the power to take out what could be the story of this year or even decade if the Iranian citizens get riled up enough against the leaders who perpetrated election fraud in Iran.

ADDENDUM June 21, 2009: Wow. A revolution has begun, but it is still in its embryonic stage...

Saturday, June 13, 2009

Iran not yet ready for a revolution (unfortunately)...

Iran has been in a twilight of some openness, with the government clamping down from time to time--including banning opposition parties from taking part in elections the government leaders think they will lose.

This time, they took a more traditional approach to holding elections--they appear to have stolen the election with fraudulent ballots (the opposition canddiate, Moussavi, had actually warned of this when poll watchers for his party were refused access to polling places).

And now they are arresting the opposition leaders. One interesting item: A reformist ayatollah, Hashemi Rafsanjani, had also worried about fraud in the election before the polls closed. He may resign his current position as Chairman of the Assembly of Experts, which assembly chooses the Supreme Leader in Iran--after the Supreme Leader rejected Rafsanjani's warnings about this election.

And now Iranians are beginning to take to the streets in increasingly violent clashes.

Still, I see no evidence that there will be a successful revolt over this latest election in Iran or that Ahmadinejad will be forced to resign, or a new election ordered through the Iranian Parliament or Council of Guardians. Too bad. I continue to believe a clear majority of Iranians in Iran want peace with the U.S., don't really care about Israel as an issue, and want an open government within their own country. That the vast majority of Iranians want a nuclear bomb is what most people in most countries want. Sigh...

ADDENDUM: While some in Israel's and America's neo-con elite hope for Ahmadinejad to prevail, most Israelis polled don't want war with Iran and, I suspect, they hope as I do for reformists to take over in Iran.

One day people in Israel, Iran, the US and elsewhere will come to the realization that the right wing yahoo element is essentially the same everywhere. It is stupid, it is violent, and it is fearful of whatever they like to call "the other." Our current president must continue to pressure Israel to stop building settlements and sit down to talk peace. Netanyahu's speech today was cynical, as he set the bar impossibly high for Palestinian negotiators to move quickly to peace. Still, Obama can continue to pressure Netanyahu by using the effect of his words and keep saying what Obama has been saying about "no" to more settlement encroachments and "yes" to the two state solution.

Wednesday, June 03, 2009

Michael Moore on GM and a program to rebuild mass transit

Michael Moore nails it in this article that my Uncle sent me via the Huffington Post. However, Moore's proposal of a two dollars a gallon tax makes little sense to me as it would disrupt our society by raising prices too quickly. I would instead propose a sliding upwards scale tax up to two dollars so that our nation can adjust as we are investing in a mass transit program. Other than that, Moore is spot on in highlighting the problems that have led GM to this moment, and what we need to do in moving forward.

Too bad I have absolutely no confidence that Obama sees mass transit as a priority, and Pelsoi and Reid are too damned shallow and careerist to actually propose anything visionary.