f/k/a archives . . . real opinions & real haiku

Some of New York’s black-robed judges are engaging in their version of the Blue Flu, in order to pressure the Legislature to give them (long-overdue) pay raises: They are “recusing” themselves — taking themselves off a case due to bias or a conflict of interest — if a party is represented by a law firm that employs a state legislator (especially Assembly Leader Sheldon Silver’s firm of Weitz and Luxenberg). See Eric Turkewitz’s posting “New York Judges Slowing Cases From Legislators’ Law Firms Over Pay Raise Issue” (NYPILaw Blog, May 2, 2008, with hat tip to Overlawyered.com); and “JUSTICE OF THE CEASE: REVOLT OF ROBES AS STATE JUDGES STALL ‘POL CASES'” (New York Post, April 27, 2008).

Also, see the Advisory Judicial Ethical Opinion (No. 08-76, April 24, 2008), which concluded that the judges’ pay raise lawsuit does not require recusal, but also stated that an individual judge must step aside if he or she has “genuine doubts” regarding the ability to be fair

This time last year, I was chastising Chief Judge Judith Kaye for her tacky use of Law Day Ceremonies to threated a lawsuit to get their pay raise. This year, she is — at least publicly — doing her best to prevent the judicial work slowdown, and deny its existence. See “Chief Judge Writes N.Y. Governor to Deny Work ‘Slowdown’ by State’s Judges” (New York Law Journal/Law.com, April 30, 2008); and “Chief judge cautions against recusals as protest” (AP/Syracuse Post-Standard, May 2, 2008). The AP story says:

Kaye, who after turning 70 will retire at the end of the year, in an e-mail Thursday cautioned them not to refuse to hear lawmakers’ cases as a form of protest. She wrote that “using recusal as a strategy rather than as a matter of individual conscience” would be perceived as retaliatory and weaken their cause.

sua sponte –
her honor
catches me staring

. . . by dagosan

Our rabble-rouser weblog friend Scott Greenfield at Simple Justice disagrees with Judge Kaye, and instead is egging on the judges to “stand up for themselves” and ignore calls to maintain their judicial dignity, because “there’s nothing dignified about poverty.” As I told Scott in a Comment at his website,

It is not a matter of dignity (and you know how often I deride our profession’s Dignity Police at my weblog); it is a matter of duty. No judge has the right to fabricate reasons to recuse himself or herself as they are doing here in order to pressure legislators.

I believe that judicial salaries should be higher, but that does not justify using a judicial variant of the Blue Flu. If pay is intolerably low, then an individual judge should resign. There are dozens of competent lawyers (some making far less now and some much more) who would gladly fill each of their slots on the bench at current salary levels. [Indeed, in many locales across the State — including Schenectady County — fulltime judges are among the highest-paid members of the legal profession (starting at $108,800), and they get plenty of other perks.]

This work action will indeed cause the judiciary (and unfortunately the entire justice system) to lose the respect of the average New Yorker.

My position here is similar to my opposition to the illegal boycott tactics used in Massachusetts by their “bar advocates,” in their fight for higher assigned counsel fees. It may be old fashioned, but I really do hold lawyers and judges to a higher standard than I hold your run-of-the-mill politician or bureaucrat — especially when the dispute really comes down to a matter of money.

My bottom line:

• judges should know better than anyone else that good ends do not justify unethical or coercive means — especially when the “end” (no matter how dressed up in cries of constitutional crisis) comes down to personal financial gain
• if any particular judge “doubts his/her ability to remain impartial” merely because a lawyer works for a firm that includes a NYS legislator, he or she does not have sufficient judicial temperament to stay on the bench and should leave

Hey, it’s Saturday afternoon, and thoughts of haiku (not court hi-jinx) should be on my mind. Before Mainichi News posts its May haiku offerings, here are a pair of poems from its April edition, by two of f/k/a‘s Honored Guests. I had planned to post these poems before I decided to write about the judicial slowdown. So, any resemblance to a judge dead or living is purely coincidental.

spring thunder
dust from a slap
on the horse’s rump

…… by w. f. owen – Mainichi Daily News Haiku (April 2008, No. 706)

offshore breeze —
a girl with wild gestures
where the wave breaks

…….. by Jim Kacian – Mainichi Daily News Haiku (April 2008, No. 706)

Pump-Pandering Politicians: It’s great to see that so many news sources and websites are putting a penetrating spotlight on the proposals by the presidential candidates, as well as other federal and state politicians (like Messrs. Bruno and Tedisco in New York), to remove the gas tax over the summer. A Newsday editorial summed it up: “A proposal for such tiny, temporary, iffy savings is a political gimmick, not meaningful relief.” (“No such thing as a free tank: No gas tax for the summer is a bad idea“, April 30, 2008). For more analysis, see:

• “Tax cut could push gas prices higher” (CNNMoney.com, April 29, 2008) “Despite claims from McCain and Clinton, temporary cut in gas taxes could lead to more demand and push prices higher – leaving taxpayers to cover shortfall.”
• “Candidates’ Plans Could Indirectly Raise Gas Prices: Senators Back Steps That Portend Higher Pump Costs,” Wall Street Journal, April 30, 2008
• “Dumb as We Wanna Be” by Thomas L. Friedman (New York Times, April 30, 2008), which opines, “It is great to see that we finally have some national unity on energy policy. Unfortunately, the unifying idea is so ridiculous, so unworthy of the people aspiring to lead our nation, it takes your breath away. . . This is not an energy policy. This is money laundering: we borrow money from China and ship it to Saudi Arabia and take a little cut for ourselves as it goes through our gas tanks. What a way to build our country.”

See the video clip — “Who Can Lower Gas Prices? The Candidates’ Plans: The Gas Squeeze: Will lifting the gas tax provide some relief?” — from Good Morning America/ABCNews (April 30, 2008)

And, listen to analysis on the Gas Tax Holiday from the PBS NewsHour — (April 30, 2008), or read the transcript.

• “Democrats Divided Over Gas Tax Break” by John Broder, The New York Times (29 Apr 2008), which has a description of the presidential candidates’ current and prior positions on gas taxes, and points out (emphasis added):

“The highway trust fund that the gas tax finances provides money to states and local governments to pay for road and bridge construction, repair and maintenance. Mr. McCain and Mrs. Clinton propose to suspend the tax from Memorial Day to Labor Day, the peak driving season, which would lower tax receipts by roughly $9 billion and potentially cost 300,000 highway construction jobs, according to state highway officials.”

update (May 1, 2008): Today’s NYT editorial “The Gas-Guzzler Gambit” also uses the word pander and explains why “it is an expensive and environmentally unsound policy that would do nothing to help American drivers.”

The federal tax on gasoline is 18.4 cents per gallon, about 5% of the average price today. Savvy f/k/a readers probably didn’t have to read an article to wonder why we would expect the oil companies to automatically pass on the savings from a gas tax hiatus. In addition, if you’ve been reading about the plight of many independent gas stations, you might also expect the stations to try to pocket some of the tax savings for themselves. See, e.g., “Stations hope you fill up with more than gas: Fuel is loss leader for many; they make money in convenience stores,” (msnbc.com, April 1, 2008)

If you want to feel even worse about all this, and the related subject of reducing our nation’s gasoline consumption, read a little about the Price Elasticity of Demand for Gasoline; and see “Soaring Gas Prices Will Not Reduce Demand.”

Where do the Presidential Candidates Stand? We’re not naming names (due to our political-punditry hiatus), but see “Clinton Criticizes Obama Over Gas Tax Plan: Knocks Obama’s Opposition To Summer ‘Gas Tax Holiday,’ Which She And McCain Support” (CBSNews.com, April 28, 2008); “Obama Dismisses Gas Tax Holiday: Senator Says Gimmick Won’t Help Consumers, Designed To Get Rivals Through Election” (AP/CBSNews.com, April 29, 2008); and “McCain wants a gas tax ‘holiday.’ It’s a no-brainer, right?,” (The Oil Drum: Europe, April 15, 2008)

update (May 2, 2008): Yesterday, former Democratic National Committee Chairman Joe Andrew, a superdelegate, switched his presidential endorsement to Barack Obama. See “Longtime Clinton ally Joe Andrew defects to Barack Obama” (Los Angeles Times, May 2, 2008) At a news conference Thursday, Andrew said:

“Clinton’s support for a federal gas-tax holiday over the summer was symbolic of a poll-driven candidacy proposing something ‘politically expedient to give a quick pander to Hoosier voters,’ in contrast to what he called the ‘principled’ campaign Obama has run.”

We think the gas-tax-holiday issue can tell us a lot about our so-called leaders. Who is willing to tell us the truth? Who treats voters like adults? Who is worried about the long-run and not just the next election? It also tells us a lot about the voting public: Who will demand a simplistic “solution” even if it might in fact be counter-productive, just to get a few extra bucks in their pocket now.

– for other posts on issues related to gasoline consumption see: post-Earth Day spread: speed limits and efficient driving; Open Letter to Gas Whiners and Another Silly One-Day Gas Boycott

– update (May 25, 2008):  Jim Tedisco, Republican leader in the NYS Assembly, continues to pander over the Memorial Day weekend, in the Op/Ed piece “To help achieve lower gas prices, make your voice heard” (Sunday Gazette, May 25, 2008).

follow-up (May 8, 2008): There’s an excellent editorial in today’s NYT, “The Tax Trickery Spreads” (New York Times, May 8, 2008) Among points made:

• “Unfortunately, their [Senators Clinton and McCain] demagoguery is growing into a real problem, setting off a chain reaction of “me too” proposals across the country to suspend state gasoline taxes, which tend to be much larger than the 18.4-cent-a-gallon federal levy. If the pandering spreads, it would go a long way in setting the nation’s energy strategy in precisely the wrong direction.”

• “These ideas share a common purpose: appearing to be doing something to ease hard-pressed voters’ pain at the pump. Not only are they costly, but they will not do that. Suspending the federal tax would cost $9 billion. In New York, the suspension would blow a $500 million hole in state finances. Consumers in some states could benefit from lower state gas taxes because wholesalers could import gas from other states. Still, with refineries producing almost at full capacity, the tax break would prompt a jump in demand that would push up prices.”

If you’ve read and considered all of the above, you surely deserve a treat. Here are more poems from the newest issue of Acorn (No. 20, Spring 2008) — which, among its 100+ poems, contains contemporary haiku by a number of our f/k/a Honored Guest Poets:

nearby clouds
nearby mountains
the rescue helicopter hovers

… by Gary Hotham

a cat at a threshold I can’t see sniffs something I can’t smell

icy night
a saw-whet etches
the silence

………. by jim kacian

spring at last
letting the stallion out
into the pasture

….. by Randy M. Brooks

quick-running brook . . .
a stone from the bottom
lighter than imagined

……………… by paul m.

fumbling
with coat buttons
autumn rain

……………. by Yu Chang

Lightning-cracked rain —
his palm rests against
the bottle’s black label

Dead-end road —
shadows of skinny cows
through old barbed wire

……… by Rebecca Lilly

All Souls
a third day
of candy

………….. by John Stevenson

As you probably know, Barack Obama appeared on Fox News Sunday on April 27, 2008 (to the apparent dismay of many liberal bloggers who support negotiating with our nation’s enemies, but are boycotting Fox in order to “delegitimize” it. Please, kids, grow up with all your litmus tests.). Click for a Transcript of Obama on FNS.

For the purpose of this post, what interested us was this exchange between moderator Chris Wallace and Sen. Obama:

WALLACE: Some of your detractors say that you are a paint by the numbers liberal and I’d like to explore this with you. . . . As a president, can you name a hot button issue where you would be willing to cross (ph) Democratic party line and say you know what, Republicans have a better idea here. . . .

OBAMA: . . . I would point out, though, for example, that when I voted for a tort reform measure that was fiercely opposed by the trial lawyers, I got attacked pretty hard from the left.

At Point of Law.com, guest-blogger Carter Wood responded to this brief remark with the posting “Obama Cites His Tort Reform Credentials” (April 27, 2008). Wood notes:

“He’s no doubt referring to his February 2005 vote for S. 5, the Class Action Fairness Act, which passed 76-26. Ted Frank analyzed Obama’s CAFA vote and tort reform record in this December 2006 post, concluding, ‘As a reform supporter, I’m far from convinced that this makes him someone willing to cross the plaintiffs’ bar.’ Senator Clinton voted no.”

In his earlier Point of Law piece, “Obama and liability reform” (Dec. 27, 2006), Ted Frank weighed in on whether Sen. Obama had any tort-reform creds, discussing his vote for what Frank calls “the eminently sensible Class Action Fairness Act.” After noting that “Obama may have annoyed the lunatic left with his vote for CAFA,” Ted says, among other things:

“Obama didn’t participate in the negotiations to get Democratic support, and he voted for every Democratic attempt to eviscerate the bill with amendments. . . Obama didn’t break with the Democrats on any seriously contested tort reform measures: he filibustered medical malpractice reform, and was one of the votes to kill the asbestos reform bill (which effectively failed by one vote) . . . Obama claimed to support medical malpractice reform in his Senate campaign (or, at least, made pro-reform swing voters think that he did), but, then, so did Kerry and Edwards in their 2004 presidential campaign.

“Obama co-sponsored the MEDiC bill with Hillary Clinton; it was a federally-funded variation of the so-called “Sorry Works” proposal . . . But it’s hardly the move of someone daring to flout the trial lawyers who dominate the Democratic Party these days.”

I don’t believe that Barack Obama has ever tried to portray himself as a full-blooded, knee-jerk Tort Reformer. As far as I’m concerned, neither being totally for nor totally against every tort-reform proposal makes good sense or good public policy. The issues raised are complicated and need to be looked at with regard to the legitimate rights of both injured plaintiffs and accused defendants — assuring that all litigants get justice and our justice system is efficient and fair. There is no simple fix that can assure that those truly injured by bad-actors are fully compensated and that defendants are treated fairly both when blame is assigned and when damages are measured.

From my perspective as a consumer advocate and citizen looking for an effective and fair justice system, it seems that: Rabid proponents of tort reform mostly want to pay injured plaintiffs as little as possible, while rabid opponents of tort reform — mainly the “trial” or personally injury bar — want to be able to extract as much money as possible from defendants while assuring the biggest fees possible for plaintiffs’ lawyers.

In this context, I’m pleased that Barack Obama has not totally embraced “tort reform,” and — as a Democrat who worries about interest groups strangling the party and skewing its positions and priorities — am even more pleased that the Senator is unwilling to simply rubber stamp the position of trial lawyers by serving as their mouthpiece, puppet or platitude-peddling political paladin, rather than looking at each issue or piece of legislation on its merits.

I continue to hope that Sen. Obama will produce a comprehensive statement about our litigation system and necessary reforms and restructuring (including the need for full access to the courts). By choosing not to embrace either Tort Reformers or Trial Lawyers, Barack Obama increases his creds as a refreshingly different kind of politician.

Prof. Yabut says: This posting is a follow-up to one of the most-visited posts in our five-year history was: “Inquiry to Obama on Tort Reform” (Aug. 4, 2004), from which we hoped to find out the position of Democratic presidential candidate Senator Barack Obama on tort reform and related issues. We never received any response from the Obama Campaign. [Note: Our Editor is a lifelong Democrat and has recently noted his support for Sen. Obama.]

Reminder: The f/k/a Gang [the Editor and his alter egos] are not “tort reformers” — we do not advocate arbitrary or blanket limits on the size of personal injury awards. We have, however, written extensively on the topic of the standard contingency fee (charging virtually every personal injury client the same percentage fee regardless of how risky or easy the case might be), which we believe consistently extracts excessive fees from clients. See, e.g., our four-part essay on the ethics and economics of contingency fees.

This position has drawn the ire of the so-called “trial lawyers,” “consumer protection lawyers” and “justice lawyers,” who seem to have much power over traditional Democratic politicians (especially those seeking campaign contributions). For example, the supposedly pro-consumer Clinton Administration opposed a bill that would have merely told consumers that they have the right to negotiate the level of a contingency fee. [aside (May 1, 2008): See my Comment #5 below about a reaction to the above mention of standard contingency fees.] Now, finally, let’s go to the point of this posting: