The editorial pages of the Post and Courier are a joke. From the editors themselves to the useless columnists they publish down to the letters from local readers that they publish, these pages are a better comedy than the funny pages. I make it a point to head straight for the editorial pages of the Pointless Courier to see what the latest completely banal and false pronouncement from the right wing demagogues will be for the day. Rarely does the Pointless Courier disappoint and this morning was no exception.
"For eight years under the Bush administration, we had no terrorist attacks on U.S. soil after 9/11."
For weeks now, this has been the conservative mantra. Only it is not true. Not only is it not true, it hasn't been true almost since the day it supposedly began: September 12, 2001. Everyone remembers September 11, but do you remember September 18, 2001. That is the day that letters began arriving at select media outlets including, NBC, ABC, CBS, the New York Post, and the National Enquirer, laden with deadly anthrax. Three weeks later, two more anthrax letters arrived. These letters weren't addressed to just any average senator; they were addressed to two powerful senators, Tom Daschle and Patrick Leahy.
5 people died as a result of these terrorist attacks and a dozen more were injured. We still don't how all of the victims received their dose of anthrax and we are not certain who carried out these attacks. But the partisan hacks in the conservative movement to destroy America don't really care about facts. But make no mistake about it, the 2001 Anthrax Attacks were terrorism on U. S. soil.
Around Christmas 2001, Richard Reid attempted to set off a shoe bomb onboard a plane bound for the United States in an attack identical to the one perpetrated by the Underpants Bomber the conservatives are wetting their pants over. Reid failed because his shoe bombs were no longer functional due to him having worn them the previous day when he was prevented from boarding an airplane. Note, that was the previous day that security was concerned about Reid.
El Al, the Israeli airline, is perhaps the most secure airline in the world. It has to be. There are many terrorists who have tried to attack El Al. On July 4, 2002, a Muslim terrorist named Hesham Mohamed Hadayet attacked the El Al ticket counter in Los Angelos International Airport killing two Israelis and wounding 4 others before an El Al security guard shot and killed him. This was a terrorist attack on U. S. soil. But do not any unAmerican conservatives to acknowledge this terrorist attack even though it happened on OUR INDEPENDENCE DAY.
A couple of months later, on September 5, 2002, a man was shot six times in Maryland in what was to become a series of shootings throughtout the DC area. On September 21, two people were shot, one died, in Alabama. Unknown at the time, but these shootings were also a part of the DC Shooting Spree. On October 5, another man was shot and killed in Maryland. The following day, 4 more people were shot in Maryland and a fifth person in DC. All died from a single shot wound fired from a long distance away. On October 7, a teenager was shot as he arrived at school; he survived the wound. But on October 9, another fatal shooting occurred at a gas station in Virginia. Again, on October 11, a person pumping gas was fatally shot in Virginia. On October 14, another person was fatally shot in Virginia. On October 19, there was another non-fatal shooting in Virginia. On October 22, a man was fatally shot on the steps of his bus in Maryland. This was to be the final shooting in this rampage as on October 24, police arrested John Allen Mohammed and Lee Malvo. It turned out that they were Islamic jihadists bent on terrorizing Americans, and for three weeks, they had done so. On American soil.
In 2006, Mohammed Reza Taheri-azar drove his SUV into 9 students at the University of North Carolina-Chapel Hill. He did so to avenge the deaths of Muslims and to honor his personal hero Mohammed Atta. This was a terrorist attack on U. S. soil.
In 2005, a bomb was set off in a mosque in Cincinnati, Ohio. No one was killed, but it was a terrorist attack.
In 2008, a conservative terrorist killed 2 people and wounded 6 others in a church in Knoxville, Tennessee.
But do not look for the Pointless Courier to correct the record anytime soon. It is not on their agenda.
And let us not forget that China punked Bush three times while he was president, which is far more dangerous to our national security than any of the attempts a group of unprofessional criminals might think of.
Tuesday, January 12, 2010
Monday, January 11, 2010
The Secret To Everything
Most people have the five ordinary senses: sight, smell, hearing, taste, and touch. But what do you do with them?
Some people believe there is a sixth sense, an extraordinary sense, ESP. Extra Sensory Perception. Though, there is nothing extraordinary about perception. Perception is merely how the brain processes the senses. Even if you are not aware of receiving the sense, your brain still processes it through perception.
Perception is important because it largely determines how we think about things, events, people, etc. It decides how we interact with the people and things we encounter. Normally, this process is described as a four-step method: observe, orient, decide, and act. The OODA Loop.
Observe is a bit of a misnomer; the person who first described the OODA Loop, Colonel John Boyd, was a fighter pilot so sight was the most important sense to him. But Observe still serves as an apt starting point in that it describes the receipt of a sense. So the first step is the receipt of information about your environment through a sensory input.
Orient can be a bit difficult because it is often abstract, not actually involving a physical repositioning so much as a mental repositioning. It is also difficult because it requires you to correctly position yourself within your environment, either physically or mentally or both.
Decide is, I suppose, the easiest concept to understand. You observe your environment and orient yourself within that environment, now you must decide what to do. Logic is the only way to successfully navigate this step.
To act is the final step in the process, which is easier said than done. Assuming you can overcome any fear or obstacles in your way.
And, of course, none of this is happening in a static environment. Every step you take potentially alters the environment. And your opponent is going through the same environment, altering the environment further. So the process is multiple-layered and you may have several OODA Loops going at once. The key is the speed in which you are able to complete each OODA Loop. The faster you complete the Loop, the faster you can complete each successive Loop. When you are completing your Loops faster than your opponent, you are said to be inside your opponent's OODA Loop. And that is the best place to be, because you will win everytime. In everything.
Some people believe there is a sixth sense, an extraordinary sense, ESP. Extra Sensory Perception. Though, there is nothing extraordinary about perception. Perception is merely how the brain processes the senses. Even if you are not aware of receiving the sense, your brain still processes it through perception.
Perception is important because it largely determines how we think about things, events, people, etc. It decides how we interact with the people and things we encounter. Normally, this process is described as a four-step method: observe, orient, decide, and act. The OODA Loop.
Observe is a bit of a misnomer; the person who first described the OODA Loop, Colonel John Boyd, was a fighter pilot so sight was the most important sense to him. But Observe still serves as an apt starting point in that it describes the receipt of a sense. So the first step is the receipt of information about your environment through a sensory input.
Orient can be a bit difficult because it is often abstract, not actually involving a physical repositioning so much as a mental repositioning. It is also difficult because it requires you to correctly position yourself within your environment, either physically or mentally or both.
Decide is, I suppose, the easiest concept to understand. You observe your environment and orient yourself within that environment, now you must decide what to do. Logic is the only way to successfully navigate this step.
To act is the final step in the process, which is easier said than done. Assuming you can overcome any fear or obstacles in your way.
And, of course, none of this is happening in a static environment. Every step you take potentially alters the environment. And your opponent is going through the same environment, altering the environment further. So the process is multiple-layered and you may have several OODA Loops going at once. The key is the speed in which you are able to complete each OODA Loop. The faster you complete the Loop, the faster you can complete each successive Loop. When you are completing your Loops faster than your opponent, you are said to be inside your opponent's OODA Loop. And that is the best place to be, because you will win everytime. In everything.
Monday. Monday! MONDAY!
Advance Sheets 2010-02. BTW, did you know that legal interest on judgments entered this year shall be 7.25%? Well, now you do. Because that came out in today's advance sheets.
Anywho, let us proceed. The Supreme Court issued a couple of opinions today. I do not think any are of the earth-shaking variety . . . but maybe you do.
Dickert v. Dickert is an appeal by both parties from the Family Court granting a divorce and dividing of the marital estate. The Court considered four issues, two of which need more study than the others. First, the Family Court included Professional Goodwill in the value of Husband's dental practice to add to the marital property for division. Goodwill is an intangible asset created by accountants and I'm not sure how the law can divide it. The Supreme Court agrees and reversed the inclusion of Goodwill. Second, did the Family Court err in equitably dividing the marital estate. After reversing the inclusion of Goodwill, obviously the trial court must reevaluate the equitable division. Notably, the Supreme Court instructed the Family Court not to take more evidence for resolving this issue. Third, Husband challenged the Family Court's award of alimony on the basis that it exceeded the average life style over the course of the 20+ year marriage and reflected only the most recent prosperous years. The Supreme Court agreed and reversed the alimony award. I think it is notable, gentlemen, that if you become prosperous in your profession, immediately get a mistress and divorce the woman who stuck by you in the lean years so as to minimize her alimony. Because that seems to be the impact of this part of the opinion. Fourth, Husband challenged the Family Court's award of attorney fees to Wife. The Supreme Court disagreed and affirmed the attorney fees as within the sound discretion of the trial court.
Edwards v. Lexington County is appeal from the Circuit Court granting summary judgment to Lexington County. The Supreme Court reversed and remanded. Plaintiff was the victim of a domestic violence incident in which her ex-boyfriend was ordered to stay away from her. He failed to so on several occasions and Lexington County arranged a hearing before the magistrate to find the ex-boyfriend in violation of the protective order. Although the Plaintiff was frightened of the ex-boyfriend and reluctant to attend the hearing at which he would be present, Lexington County persuaded her to attend but provided no security for the event. Sure enough, ex-boyfriend attacked and injured the Plaintiff and Plaintiff sued Lexington County for negligence. Lexington County claimed it owed Plaintiff no legal duty and the Circuit Court agreed, granting Lexington County summary judgment on that limited ground. The Supreme Court reversed finding that Lexington County created a legal duty under special circumstances by getting the hearing and persuading Plaintiff to appear despite her unease, i.e., a common law duty.
Richardson v. Stewart is a case involving a litigious prisoner whom the Supreme Court found to be abusing the justice system. You can skip this one and save yourself a couple of minutes of your life. And it won't be on the bar either if you are studying for that later this summer.
The Court of Appeals also issued a couple of published opinions. They are:
Johnson v. Hunter is appeal from the Circuit Court finding that a motor vehicle accident constituted a single event for the purposes of UIM coverage. Johnson was traveling on a highway with Hunter following behind him in the same direction. A third party, traveling in the opposite direction crossed the center line and, despite Johnson's efforts to avoid collision, struck Johnson. As Johnson was attempting to exit his damaged vehicle, Hunter struck his vehicle as well. Johnson claimed the events were separate and distinct events and that the trial court erred in ruling them one event under the "causation theory" though Johnson did not challenge the use of the "causation theory" and therefore it is the law of the case. The Court of Appeals affirmed the trial court, finding that the two collisions were both linked to the negligence of the third party driver. A must read for UIM coverage cases as it appears to be a case of first impression and further development is likely.
Blackbaud v. SCDOR is DOR's appeal from the Administrative Law Court decision permitting Blackbaud to take job development tax credits after the date for such credits had passed. Be careful what you ask for, the appellate court just might give it to you. Blackbaud moved here from New York and promised to create 300 jobs by October 2002 in return for tax credits. Under this development law, they could create up to 50% more jobs than promised and still get the tax credit for the excess jobs. Blackbaud created 398 by October 2002 and claimed tax credits for them. Blackbaud continued to create jobs, up to the maximum of 450 after the cut off and claimed tax credits for those jobs for the next five years. DOR claimed Blackbaud was limited to the tax credits for the 398 jobs and Blackbaud sought relief for the Admin Law Court which agreed with them. DOR appealed to the Court of Appeals claiming Blackbaud also could not claim tax credits for five years. The Court of Appeals affirmed the ALC with one modification: not only could Blackbaud claim the tax credits, but they could claim for as long as their job development contract remained in effect and not just for 5 years stating that language of the statute and Blackbaud's contract said nothing about restricting excess jobs to the cutoff - they just had to qualify by the cutoff and that nothing limited the tax credits to any set period of time. Sorry, DOR.
And that was this week. See you next Monday.
Anywho, let us proceed. The Supreme Court issued a couple of opinions today. I do not think any are of the earth-shaking variety . . . but maybe you do.
Dickert v. Dickert is an appeal by both parties from the Family Court granting a divorce and dividing of the marital estate. The Court considered four issues, two of which need more study than the others. First, the Family Court included Professional Goodwill in the value of Husband's dental practice to add to the marital property for division. Goodwill is an intangible asset created by accountants and I'm not sure how the law can divide it. The Supreme Court agrees and reversed the inclusion of Goodwill. Second, did the Family Court err in equitably dividing the marital estate. After reversing the inclusion of Goodwill, obviously the trial court must reevaluate the equitable division. Notably, the Supreme Court instructed the Family Court not to take more evidence for resolving this issue. Third, Husband challenged the Family Court's award of alimony on the basis that it exceeded the average life style over the course of the 20+ year marriage and reflected only the most recent prosperous years. The Supreme Court agreed and reversed the alimony award. I think it is notable, gentlemen, that if you become prosperous in your profession, immediately get a mistress and divorce the woman who stuck by you in the lean years so as to minimize her alimony. Because that seems to be the impact of this part of the opinion. Fourth, Husband challenged the Family Court's award of attorney fees to Wife. The Supreme Court disagreed and affirmed the attorney fees as within the sound discretion of the trial court.
Edwards v. Lexington County is appeal from the Circuit Court granting summary judgment to Lexington County. The Supreme Court reversed and remanded. Plaintiff was the victim of a domestic violence incident in which her ex-boyfriend was ordered to stay away from her. He failed to so on several occasions and Lexington County arranged a hearing before the magistrate to find the ex-boyfriend in violation of the protective order. Although the Plaintiff was frightened of the ex-boyfriend and reluctant to attend the hearing at which he would be present, Lexington County persuaded her to attend but provided no security for the event. Sure enough, ex-boyfriend attacked and injured the Plaintiff and Plaintiff sued Lexington County for negligence. Lexington County claimed it owed Plaintiff no legal duty and the Circuit Court agreed, granting Lexington County summary judgment on that limited ground. The Supreme Court reversed finding that Lexington County created a legal duty under special circumstances by getting the hearing and persuading Plaintiff to appear despite her unease, i.e., a common law duty.
Richardson v. Stewart is a case involving a litigious prisoner whom the Supreme Court found to be abusing the justice system. You can skip this one and save yourself a couple of minutes of your life. And it won't be on the bar either if you are studying for that later this summer.
The Court of Appeals also issued a couple of published opinions. They are:
Johnson v. Hunter is appeal from the Circuit Court finding that a motor vehicle accident constituted a single event for the purposes of UIM coverage. Johnson was traveling on a highway with Hunter following behind him in the same direction. A third party, traveling in the opposite direction crossed the center line and, despite Johnson's efforts to avoid collision, struck Johnson. As Johnson was attempting to exit his damaged vehicle, Hunter struck his vehicle as well. Johnson claimed the events were separate and distinct events and that the trial court erred in ruling them one event under the "causation theory" though Johnson did not challenge the use of the "causation theory" and therefore it is the law of the case. The Court of Appeals affirmed the trial court, finding that the two collisions were both linked to the negligence of the third party driver. A must read for UIM coverage cases as it appears to be a case of first impression and further development is likely.
Blackbaud v. SCDOR is DOR's appeal from the Administrative Law Court decision permitting Blackbaud to take job development tax credits after the date for such credits had passed. Be careful what you ask for, the appellate court just might give it to you. Blackbaud moved here from New York and promised to create 300 jobs by October 2002 in return for tax credits. Under this development law, they could create up to 50% more jobs than promised and still get the tax credit for the excess jobs. Blackbaud created 398 by October 2002 and claimed tax credits for them. Blackbaud continued to create jobs, up to the maximum of 450 after the cut off and claimed tax credits for those jobs for the next five years. DOR claimed Blackbaud was limited to the tax credits for the 398 jobs and Blackbaud sought relief for the Admin Law Court which agreed with them. DOR appealed to the Court of Appeals claiming Blackbaud also could not claim tax credits for five years. The Court of Appeals affirmed the ALC with one modification: not only could Blackbaud claim the tax credits, but they could claim for as long as their job development contract remained in effect and not just for 5 years stating that language of the statute and Blackbaud's contract said nothing about restricting excess jobs to the cutoff - they just had to qualify by the cutoff and that nothing limited the tax credits to any set period of time. Sorry, DOR.
And that was this week. See you next Monday.
Tuesday, January 5, 2010
Skittish?
On NBC Nightly News, Tom Costello stated that today's non-incident at the Minneapolis Airport shows how skittish the American people are.
It would be shocking if such news programs were to do an introspective segment on their own role in driving the American people to such skittishness. Like their freak out over the Underpants Bomber.
It would be shocking if such news programs were to do an introspective segment on their own role in driving the American people to such skittishness. Like their freak out over the Underpants Bomber.
Monday, January 4, 2010
A New Year And A New Advance Sheets Edition
Advance Sheets 01-2010! Ring in the New Year by reading today's Advance Sheets. They're quick and easy. Or just read my summary.
Just one item from the Supreme Court today: Dawkins v. Dawkins. Please read this one if you practice divorce law. It is especially addressed to the Bar. Well, the Bench too. This is an appeal from the Family Court, or rather, a reversal of the Court of Appeals decision reversing the Family Court and reinstating the Family Court decision. The Court reinforced the notion that an equitable distribution is within the discretion of the trial court and should be presumed appropriate. The Court also overruled Cooksey v. Cooksey, 280 S.C. 347 (Ct. App. 1984) regarding special equity in marital property transmuted from inherited property.
From the Court of Appeals:
State v. Evans. This is an appeal from three manslaughter convictions. At issue was whether the Defendant had been denied the right to a speedy trial while her case was pending for some twelve plus years. The Court of Appeals, limited by its standard of review, found the trial court had sufficient evidence to deny the Defendant's speedy trial motion and affirmed the convictions.* I am not sure of the broad impact of this opinion since it involved a case with some very unusual circumstances with Public Defenders getting elected Solicitor and Assistant Solicitors getting elected Solicitor in other Circuits. Very unusual circumstances.
* This opinion was written for the Court by Judge Short, for whom I served as a law clerk when he was on the Circuit Court.
DSS v. Johnson. This is an appeal of a child support judgment from the Family Court and subsequent contempt citation. The case originated in North Carolina and was certified in South Carolina after the Petitioner relocated here. Petitioner alleges that he was improperly notified of the registration of the North Carolina order in South Carolina though he admitted to knowledge of the North Carolina order. The Court of Appeals affirmed the Family Court.
McDaniel v. Kendrick is an appeal from the Circuit Court that Kendrick failed to establish adverse possession or a constructive trust. Specifically, that hostility was required for a claim of adverse possession and that fraud is required for a constructive trust. The Court of Appeals affirmed the Circuit Court.
Just one item from the Supreme Court today: Dawkins v. Dawkins. Please read this one if you practice divorce law. It is especially addressed to the Bar. Well, the Bench too. This is an appeal from the Family Court, or rather, a reversal of the Court of Appeals decision reversing the Family Court and reinstating the Family Court decision. The Court reinforced the notion that an equitable distribution is within the discretion of the trial court and should be presumed appropriate. The Court also overruled Cooksey v. Cooksey, 280 S.C. 347 (Ct. App. 1984) regarding special equity in marital property transmuted from inherited property.
From the Court of Appeals:
State v. Evans. This is an appeal from three manslaughter convictions. At issue was whether the Defendant had been denied the right to a speedy trial while her case was pending for some twelve plus years. The Court of Appeals, limited by its standard of review, found the trial court had sufficient evidence to deny the Defendant's speedy trial motion and affirmed the convictions.* I am not sure of the broad impact of this opinion since it involved a case with some very unusual circumstances with Public Defenders getting elected Solicitor and Assistant Solicitors getting elected Solicitor in other Circuits. Very unusual circumstances.
* This opinion was written for the Court by Judge Short, for whom I served as a law clerk when he was on the Circuit Court.
DSS v. Johnson. This is an appeal of a child support judgment from the Family Court and subsequent contempt citation. The case originated in North Carolina and was certified in South Carolina after the Petitioner relocated here. Petitioner alleges that he was improperly notified of the registration of the North Carolina order in South Carolina though he admitted to knowledge of the North Carolina order. The Court of Appeals affirmed the Family Court.
McDaniel v. Kendrick is an appeal from the Circuit Court that Kendrick failed to establish adverse possession or a constructive trust. Specifically, that hostility was required for a claim of adverse possession and that fraud is required for a constructive trust. The Court of Appeals affirmed the Circuit Court.
Monday, December 28, 2009
Monday, December 21, 2009
Advance Sheets No. 55
Woah! First thing I see when looking at the Advance Sheets is King v. American General. I was very pleased with the Court's decision in this case a couple of months back and they have now substituted that decision after reconsideration. Admittedly, I am just as happy with the new opinion to reverse the trial court's decision as I was with the previous reversal. This is a class action that I worked on both during law school and after entering private practice, so there is an obvious bias on my part. I would like to say that this is a must read for anyone practicing real estate law or class action litigation. In reality, I am not sure how far beyond the actual case this decision will actually reach. It is very specific to the errors made by the trial court in this specific case.
Next up is Mikell v. County of Charleston. This was an appeal from a finding that the Charleston County Council properly enacted a zoning ordnance involving a Planned Development on Edisto Island. This is old family property dating back to 1715 and Charleston County allowed certain family members to rezone their property allowing for more dense development of their property contrary to the County's 1999 comprehensive land development plan. Other family members objected and the Master sustained their objection. The Court of Appeals reversed the Master and the Supreme Court reversed the Court of Appeals. The case basically turns upon statutory interpretation of zoning laws which the Supreme Court held to be clear. Judge Cooper was sitting as an acting justice and wrote a dissenting opinion. Worth a read if you deal with land use planning and zoning laws.
State v. Herring is an appeal from a murder conviction. Police entered the Suspect's property and looked into his garage to find his vehicle but not the Suspect himself. They then obtained a search warrant for the residence in which they apprehended the Suspect and found the murder weapon. Suspect claimed the peek into the garage was an unlawful search and the subsequent search of the residence to be fruit of that unlawful search. The trial court found that the peek was an unlawful search but that the subsequent search was unrelated. The Supreme Court found that the peek was a reasonable safety precaution for officers seeking a suspect they know to be armed and agreed that the subsequent residence search was not related to the peek due to the description police received identifying the suspect. Certainly a good read for criminal practitioners. Not sure how the case would work out had the police been searching for an unarmed suspect. One note: this case does involve a search warrant obtained by facsimile. The Court held that the statute regarding search warrants does not, in fact, require the swearing officer to actually appear before the magistrate but to be sworn by the magistrate and, apparently, swearing over the telephone is good enough. Might be a case of bad facts making bad law. Justices Kittredge and Pleicones concurred separately because they disagree with the majority concerning the initial "peek" search being legal. They felt exigent circumstance were not present warranting the peek.
State v. Anderson is an appeal from the Court of Appeals regarding a conviction of 1st-Degree Burglary. The Defendant asserts that the trial court erred in allowing the admission of an unauthenticated ten-print fingerprint card. Prints lifted from the crime scene matched fingerprints on record at SLED. The Defendant asserts that the trial court failed to follow the requirements of State v. Rich to the letter in admitting this evidence. A good read to familiarize yourself with the rules regarding authentication of master fingerprint cards both for the prosecution and defense perspective.
In re Anonymous Member of the Bar is a disciplinary matter involving law practice marketing through the use of discount coupons and use of the terms "expert" and "specialist". Draw a red flag on this one and read it well. The Court dismissed the charges regarding discount coupons but did address the proper method to distribute them.
LaSalle Bank National Association v. Davidson is an appeal from a foreclosure hearing in Dorchester County in which the trial judge did not attend the final hearing. The Court held that failure of the judge to attend the final hearing is a violation of the parties' procedural due process and a nullity. This one steams my blood better than a nuclear reactor heats water. An "empty ritual" is how the bank described court hearings.
Sapp v. Ford Motor Co and Smith v. Ford Motor Company are consolidated appeals regarding the economic loss rule limiting tort claims. The Court affirmed the judgments in favor of Ford Motor and overruled its decision in Colleton Preparatory v. Hoover Universal to the extent that it expands the exception to the economic loss rule beyond that described in Kennedy v. Columbia Lumber & Mfg. So the exception to the economic loss rule is strictly limited to residential property construction only. Justice Beatty filed a separate opinion concurring only in the result, not the reasoning. Justice Waller also limited his concurrence to the result only but did not join Justice Beatty's opinion. This is a confusing concept and you should take a look at the opinions because you may very well need to try to make some sense of it in the future.
Dervin v. State is an appeal from a Post Conviction Relief Hearing. The Court reversed and remanded for resentencing. Dervin was convicted of trafficking in more than 10 grams of cocaine, though the amount involved appears to have been more than 200 grams but less than 400 grams. Since the jury convicted her of trafficking in more than 10 grams, Dervin asserts the jury did not definitively find she had trafficked in 200 grams as required by US Supreme Court decisions. The Court agreed that she should have been sentenced for trafficking in more than 10 grams, not more than 200 grams, unless the jury specifically found the amount was more than 200 grams. Good to know for defense lawyers.
Some Appellate Court Rules amendments follow. Specifically, Rule 412, you know, the one involving your IOLTA, and Rule 608, the one involving your appointments to indigent representations. Definitely want to rad those amendments to see how they affect you.
The Court of Appeals had quite a few opinions issued as well.
Jeffrey v. Sunshine Recycling is a Worker's Comp claim and the substantial evidence rule. This one is convoluted. Better read this one if you do any Worker's Comp work. With the economy as it is, this might be very important for successful resolution for your clients.
Plantation A.D. v. Gerald Builders is an appeal from the trial court's grant of summary judgment to the Defendants based on lack of consideration in a purported contract. The trial court held that the purported contract unambiguously lacked consideration and denying parole evidence of consideration. The Court of Appeals reversed finding the contract was not unambiguous and that parole evidence should have been allowed. This one has some procedural issues for those with a healthy motions practice.
In re Walter M is a very sad tale; an appeal from a family court murder conviction of a minor who fatally shot a friend. Of note: this decision found that the recent State v. Belcher decision of the Supreme Court was not controlling, so this one might not be finished for a while.
Normandy Corp v. SCDOT is an appeal of a condemnation case and determination of the value of the condemned land due to the presence of wetlands. Normandy claims that the property is not wetlands and is of higher value. The Court affirmed the lower court ruling.
Some very interesting cases to peruse.
Next up is Mikell v. County of Charleston. This was an appeal from a finding that the Charleston County Council properly enacted a zoning ordnance involving a Planned Development on Edisto Island. This is old family property dating back to 1715 and Charleston County allowed certain family members to rezone their property allowing for more dense development of their property contrary to the County's 1999 comprehensive land development plan. Other family members objected and the Master sustained their objection. The Court of Appeals reversed the Master and the Supreme Court reversed the Court of Appeals. The case basically turns upon statutory interpretation of zoning laws which the Supreme Court held to be clear. Judge Cooper was sitting as an acting justice and wrote a dissenting opinion. Worth a read if you deal with land use planning and zoning laws.
State v. Herring is an appeal from a murder conviction. Police entered the Suspect's property and looked into his garage to find his vehicle but not the Suspect himself. They then obtained a search warrant for the residence in which they apprehended the Suspect and found the murder weapon. Suspect claimed the peek into the garage was an unlawful search and the subsequent search of the residence to be fruit of that unlawful search. The trial court found that the peek was an unlawful search but that the subsequent search was unrelated. The Supreme Court found that the peek was a reasonable safety precaution for officers seeking a suspect they know to be armed and agreed that the subsequent residence search was not related to the peek due to the description police received identifying the suspect. Certainly a good read for criminal practitioners. Not sure how the case would work out had the police been searching for an unarmed suspect. One note: this case does involve a search warrant obtained by facsimile. The Court held that the statute regarding search warrants does not, in fact, require the swearing officer to actually appear before the magistrate but to be sworn by the magistrate and, apparently, swearing over the telephone is good enough. Might be a case of bad facts making bad law. Justices Kittredge and Pleicones concurred separately because they disagree with the majority concerning the initial "peek" search being legal. They felt exigent circumstance were not present warranting the peek.
State v. Anderson is an appeal from the Court of Appeals regarding a conviction of 1st-Degree Burglary. The Defendant asserts that the trial court erred in allowing the admission of an unauthenticated ten-print fingerprint card. Prints lifted from the crime scene matched fingerprints on record at SLED. The Defendant asserts that the trial court failed to follow the requirements of State v. Rich to the letter in admitting this evidence. A good read to familiarize yourself with the rules regarding authentication of master fingerprint cards both for the prosecution and defense perspective.
In re Anonymous Member of the Bar is a disciplinary matter involving law practice marketing through the use of discount coupons and use of the terms "expert" and "specialist". Draw a red flag on this one and read it well. The Court dismissed the charges regarding discount coupons but did address the proper method to distribute them.
LaSalle Bank National Association v. Davidson is an appeal from a foreclosure hearing in Dorchester County in which the trial judge did not attend the final hearing. The Court held that failure of the judge to attend the final hearing is a violation of the parties' procedural due process and a nullity. This one steams my blood better than a nuclear reactor heats water. An "empty ritual" is how the bank described court hearings.
Sapp v. Ford Motor Co and Smith v. Ford Motor Company are consolidated appeals regarding the economic loss rule limiting tort claims. The Court affirmed the judgments in favor of Ford Motor and overruled its decision in Colleton Preparatory v. Hoover Universal to the extent that it expands the exception to the economic loss rule beyond that described in Kennedy v. Columbia Lumber & Mfg. So the exception to the economic loss rule is strictly limited to residential property construction only. Justice Beatty filed a separate opinion concurring only in the result, not the reasoning. Justice Waller also limited his concurrence to the result only but did not join Justice Beatty's opinion. This is a confusing concept and you should take a look at the opinions because you may very well need to try to make some sense of it in the future.
Dervin v. State is an appeal from a Post Conviction Relief Hearing. The Court reversed and remanded for resentencing. Dervin was convicted of trafficking in more than 10 grams of cocaine, though the amount involved appears to have been more than 200 grams but less than 400 grams. Since the jury convicted her of trafficking in more than 10 grams, Dervin asserts the jury did not definitively find she had trafficked in 200 grams as required by US Supreme Court decisions. The Court agreed that she should have been sentenced for trafficking in more than 10 grams, not more than 200 grams, unless the jury specifically found the amount was more than 200 grams. Good to know for defense lawyers.
Some Appellate Court Rules amendments follow. Specifically, Rule 412, you know, the one involving your IOLTA, and Rule 608, the one involving your appointments to indigent representations. Definitely want to rad those amendments to see how they affect you.
The Court of Appeals had quite a few opinions issued as well.
Jeffrey v. Sunshine Recycling is a Worker's Comp claim and the substantial evidence rule. This one is convoluted. Better read this one if you do any Worker's Comp work. With the economy as it is, this might be very important for successful resolution for your clients.
Plantation A.D. v. Gerald Builders is an appeal from the trial court's grant of summary judgment to the Defendants based on lack of consideration in a purported contract. The trial court held that the purported contract unambiguously lacked consideration and denying parole evidence of consideration. The Court of Appeals reversed finding the contract was not unambiguous and that parole evidence should have been allowed. This one has some procedural issues for those with a healthy motions practice.
In re Walter M is a very sad tale; an appeal from a family court murder conviction of a minor who fatally shot a friend. Of note: this decision found that the recent State v. Belcher decision of the Supreme Court was not controlling, so this one might not be finished for a while.
Normandy Corp v. SCDOT is an appeal of a condemnation case and determination of the value of the condemned land due to the presence of wetlands. Normandy claims that the property is not wetlands and is of higher value. The Court affirmed the lower court ruling.
Some very interesting cases to peruse.
Monday, December 14, 2009
South Carolina Advance Sheets No.54
Just 4 published opinions in the advance sheets for today. One from the Supreme Court and three from the Court of Appeals.
Supreme Court:
Hooper v. Ebenezer Senior Services - An appeal from common pleas court of York County. Petitioner filed suit against respondent regarding the death of petitioner's decedent but was unable to accomplish service on respondent due to an apparent ownership change and inability to locate the registered agent for service of process. Citing the statute of limitations, the trial court dismissed the case and the Court of Appeals affirmed. The Supreme Court reversed and remanded on the grounds of equitable tolling; finding that there is no exhaustive of suitable circumstances to which equitable tolling should be limited and that, while equitable tolling should be used sparingly, it should be applied where the plaintiff fails to prosecute the matter through no fault of their own but that of the defendant. An important case on this procedural rule that everyone ought to read closely.
Court of Appeals:
Ervin v. Richland Memorial Hospital* - An appeal from the common pleas court of Richland County affirming the Appellate Panel of the Workers' Compensation Commission. Claimant alleged exposure to perfumes rendered her disabled. Employer claimed claimant's asthma was a preexisting condition and claimant was not injured on the job. The Commissioner hearing the matter ruled in favor of Claimant while the Appellant Panel reversed and the common pleas court affirmed. Probably very limited applicability unless you practice in the Worker's Comp field at all.
Shirley's Iron Works v. City of Union - An appeal from the common pleas court of Union County affirming in part and reversing in part the trial court's grant of summary judgment to the defendant. Defendant contracted to build a building to a general contractor but did not require a bond. General contractor retained Plaintiff as a subcontractor and Plaintiff claims it was not paid in full for its work. You really need to read this one because it is a bit complicated in its holding. Particularly if you get involved with litigation between municipalities and contractors,
Smith v. Smith - A cross appeal from the family court of Sumter County affirming in part and reversing in part the family court's final order regarding child support, visitation, etc. A very comprehensive decision regarding divorce cases that you should read.
This week's advance sheets also included notice of proposed changes to Civil Procedure Rules 6 and 7 regarding time for filing memorandum supporting or opposing motions before the scheduled hearing. The changes would create a big change in motion's practice and would greatly reflect the local rules in federal court. If the motion is filed more than 30 days before the hearing: 1) a memorandum in support must be filed at least 20 days before the hearing, 2) a memorandum opposing the motion must be filed at least 10 days before the hearing, and 3) a responsive memorandum in support must be filed at least 2 days before the hearing. As always, if you wish to comment on the proposed rule change, the original and 7 copies must be filed with the Supreme Court Clerk. Deadline is December 29 with a public hearing on January 5 at 3:00 PM. I think it is a good change 9 out of 10 times. I am not 100% behind the idea of finalizing legal theory before the hearing, but how often is that the case?
*I would note that this opinion was written for the Court by Judge Paul Short, Jr., whom I clerked for while he was a circuit court judge.
Supreme Court:
Hooper v. Ebenezer Senior Services - An appeal from common pleas court of York County. Petitioner filed suit against respondent regarding the death of petitioner's decedent but was unable to accomplish service on respondent due to an apparent ownership change and inability to locate the registered agent for service of process. Citing the statute of limitations, the trial court dismissed the case and the Court of Appeals affirmed. The Supreme Court reversed and remanded on the grounds of equitable tolling; finding that there is no exhaustive of suitable circumstances to which equitable tolling should be limited and that, while equitable tolling should be used sparingly, it should be applied where the plaintiff fails to prosecute the matter through no fault of their own but that of the defendant. An important case on this procedural rule that everyone ought to read closely.
Court of Appeals:
Ervin v. Richland Memorial Hospital* - An appeal from the common pleas court of Richland County affirming the Appellate Panel of the Workers' Compensation Commission. Claimant alleged exposure to perfumes rendered her disabled. Employer claimed claimant's asthma was a preexisting condition and claimant was not injured on the job. The Commissioner hearing the matter ruled in favor of Claimant while the Appellant Panel reversed and the common pleas court affirmed. Probably very limited applicability unless you practice in the Worker's Comp field at all.
Shirley's Iron Works v. City of Union - An appeal from the common pleas court of Union County affirming in part and reversing in part the trial court's grant of summary judgment to the defendant. Defendant contracted to build a building to a general contractor but did not require a bond. General contractor retained Plaintiff as a subcontractor and Plaintiff claims it was not paid in full for its work. You really need to read this one because it is a bit complicated in its holding. Particularly if you get involved with litigation between municipalities and contractors,
Smith v. Smith - A cross appeal from the family court of Sumter County affirming in part and reversing in part the family court's final order regarding child support, visitation, etc. A very comprehensive decision regarding divorce cases that you should read.
This week's advance sheets also included notice of proposed changes to Civil Procedure Rules 6 and 7 regarding time for filing memorandum supporting or opposing motions before the scheduled hearing. The changes would create a big change in motion's practice and would greatly reflect the local rules in federal court. If the motion is filed more than 30 days before the hearing: 1) a memorandum in support must be filed at least 20 days before the hearing, 2) a memorandum opposing the motion must be filed at least 10 days before the hearing, and 3) a responsive memorandum in support must be filed at least 2 days before the hearing. As always, if you wish to comment on the proposed rule change, the original and 7 copies must be filed with the Supreme Court Clerk. Deadline is December 29 with a public hearing on January 5 at 3:00 PM. I think it is a good change 9 out of 10 times. I am not 100% behind the idea of finalizing legal theory before the hearing, but how often is that the case?
*I would note that this opinion was written for the Court by Judge Paul Short, Jr., whom I clerked for while he was a circuit court judge.
Thursday, November 12, 2009
The Latest Faux Outrage
Conservatives are currently going batshit insane over what they believe is the Obama Administration's policy to purge the civil service ranks of all Bush political appointees who have burrowed into civil service jobs in the past five years.
It is a bald-faced lie.
First, a little background. There are federal laws regarding political appointees taking civil service positions and those laws are regulated by the OMB.
Well, regulated is a bit generous. OMB currently only regulates political appointees applying for competitive or sensitive civil service jobs. If the civil service job is not deemed competitive or sensitive, OMB does nothing to regulate political appointees taking those jobs even though the law says they should. These regulations are not strict; most political appointees seeking civil service jobs are cleared easily.
John Berry, the director of OMB, has issued a memo stating that that policy will change as of January 1. After that date, political appointees seeking any civil service job will be screened by OMB. Also, any person who left a political appointment within five years of seeking a civil service job will face similar, easy screenings.
Nothing about purging current civil servants who were once political appointees. And you can see where the five year bullshit came from.
Just more conservative bullshit. More lies.
It is a bald-faced lie.
First, a little background. There are federal laws regarding political appointees taking civil service positions and those laws are regulated by the OMB.
Well, regulated is a bit generous. OMB currently only regulates political appointees applying for competitive or sensitive civil service jobs. If the civil service job is not deemed competitive or sensitive, OMB does nothing to regulate political appointees taking those jobs even though the law says they should. These regulations are not strict; most political appointees seeking civil service jobs are cleared easily.
John Berry, the director of OMB, has issued a memo stating that that policy will change as of January 1. After that date, political appointees seeking any civil service job will be screened by OMB. Also, any person who left a political appointment within five years of seeking a civil service job will face similar, easy screenings.
Nothing about purging current civil servants who were once political appointees. And you can see where the five year bullshit came from.
Just more conservative bullshit. More lies.
Wednesday, October 28, 2009
The Tree of Liberty
"The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants."
Thomas Jefferson said those words a long time ago. But does anyone know what he was talking about? Do the tea baggers know what he was talking about when they proudly prance around in their Tree of Liberty t-shirts at their tea bag parties? Probably not.
Jefferson was referencing Shays' Rebellion in Massachusetts. Maybe the full Tree of Liberty Quote would be helpful for context.
"Yet where does this anarchy exist? Where did it ever exist, except in the single instance of Massachusetts? And can history produce an instance of a rebellion so honourably conducted? I say nothing of it's motives. They were founded in ignorance, not wickedness. God forbid we should ever be twenty years without such a rebellion. The people cannot be all, and always, well informed. The part which is wrong will be discontented, in proportion to the importance of the facts they misconceive. If they remain quiet under such misconceptions, it is lethargy, the forerunner of death to the public liberty. And what country can preserve its liberties, if it's rulers are not warned from time to time, that this people preserve the spirit of resistance? Let them take arms. The remedy is to set them right as to the facts, pardon and pacify them. What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time, with the blood of patriots and tyrants. It is its natural manure."
Jefferson's words still ring true today. The tea bag parties might not have been "honourably conducted," but they were founded in ignorance rather than wickedness. For the most part. For the record, Jefferson said it was OK to kill a couple of ignorant tea baggers every twenty years or so for the sake of liberty. Luckily, we have moved beyond the need for such violence against ignorant tea baggers these days. Also:
"A government big enough to give you everything you want, is strong enough to take everything you have."
These words in 20th century vernacular are not the words of 18th century Jefferson no matter what you might read on the editorial pages of the Charleston Post and Courier. Gerald Ford said these anti-American words while president.
Thomas Jefferson said those words a long time ago. But does anyone know what he was talking about? Do the tea baggers know what he was talking about when they proudly prance around in their Tree of Liberty t-shirts at their tea bag parties? Probably not.
Jefferson was referencing Shays' Rebellion in Massachusetts. Maybe the full Tree of Liberty Quote would be helpful for context.
"Yet where does this anarchy exist? Where did it ever exist, except in the single instance of Massachusetts? And can history produce an instance of a rebellion so honourably conducted? I say nothing of it's motives. They were founded in ignorance, not wickedness. God forbid we should ever be twenty years without such a rebellion. The people cannot be all, and always, well informed. The part which is wrong will be discontented, in proportion to the importance of the facts they misconceive. If they remain quiet under such misconceptions, it is lethargy, the forerunner of death to the public liberty. And what country can preserve its liberties, if it's rulers are not warned from time to time, that this people preserve the spirit of resistance? Let them take arms. The remedy is to set them right as to the facts, pardon and pacify them. What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time, with the blood of patriots and tyrants. It is its natural manure."
Jefferson's words still ring true today. The tea bag parties might not have been "honourably conducted," but they were founded in ignorance rather than wickedness. For the most part. For the record, Jefferson said it was OK to kill a couple of ignorant tea baggers every twenty years or so for the sake of liberty. Luckily, we have moved beyond the need for such violence against ignorant tea baggers these days. Also:
"A government big enough to give you everything you want, is strong enough to take everything you have."
These words in 20th century vernacular are not the words of 18th century Jefferson no matter what you might read on the editorial pages of the Charleston Post and Courier. Gerald Ford said these anti-American words while president.
Tuesday, October 27, 2009
Open Up Your Arms
This is a campaign by Iraq and Afghanistan Veterans of America and the band O.A.R.
This O.A.R.'s latest video:
Thursday, October 22, 2009
Medical Malpractice
People are making some absurd claims regarding the need for medical practice liability reform.
I have read claims that make the outrageous allegation that medical malpractice costs $500 billion per year. The amount of tangible money spent on medical malpractice insurance is quantifiable and less than 1% of total health care expenditures. Claims are paid out of those premiums so add nothing to the total costs.
So where does the remaining nearly $500 billion come from? Proponents of malpractice reform stoop so low as to allege that physicians in this country are committing a fraud so large as to be preposterous. They allege that physicians defraud this country of nearly $500 billion a year through defensive medical practices that are entirely frivolous in order to prevent malpractice claims.
The idea is ludicrous and defamatory to our great medical professionals, most of whom never come close to committing malpractice. First of all, defensive medicine cannot prevent malpractice. Ever. Tests or either part of the standard of care, in which case they are not defensive, or they are not part of the standard of care, in which case they do not prevent malpractice. Second, there are a myriad of reasons a physician would order a test so it is impossible to label tests as solely to prevent malpractice claims and thus outrageously claim malpractice costs $500 billion.
Even if you assume that defensive practices exist, the CBO estimates that eliminating malpractice would save Medicare approximately $54 billion over 10 years. That is $5.4 billion a year in a system that spends about $1.5 trillion. $15 billion is 1% of $1.5 trillion and $5 billion is just one-third of that 1%. That is not real cost savings.
But here is the kicker. Medical expenses account for the largest element of medical malpractice damages. Single payer universal Medicare eliminates the need for medical expenses as a part of malpractice damages. It would also carry over to almost all other personal injury lawsuits. Universal Medicare would be the single most effective way to "reform" personal injury lawsuits.
I have read claims that make the outrageous allegation that medical malpractice costs $500 billion per year. The amount of tangible money spent on medical malpractice insurance is quantifiable and less than 1% of total health care expenditures. Claims are paid out of those premiums so add nothing to the total costs.
So where does the remaining nearly $500 billion come from? Proponents of malpractice reform stoop so low as to allege that physicians in this country are committing a fraud so large as to be preposterous. They allege that physicians defraud this country of nearly $500 billion a year through defensive medical practices that are entirely frivolous in order to prevent malpractice claims.
The idea is ludicrous and defamatory to our great medical professionals, most of whom never come close to committing malpractice. First of all, defensive medicine cannot prevent malpractice. Ever. Tests or either part of the standard of care, in which case they are not defensive, or they are not part of the standard of care, in which case they do not prevent malpractice. Second, there are a myriad of reasons a physician would order a test so it is impossible to label tests as solely to prevent malpractice claims and thus outrageously claim malpractice costs $500 billion.
Even if you assume that defensive practices exist, the CBO estimates that eliminating malpractice would save Medicare approximately $54 billion over 10 years. That is $5.4 billion a year in a system that spends about $1.5 trillion. $15 billion is 1% of $1.5 trillion and $5 billion is just one-third of that 1%. That is not real cost savings.
But here is the kicker. Medical expenses account for the largest element of medical malpractice damages. Single payer universal Medicare eliminates the need for medical expenses as a part of malpractice damages. It would also carry over to almost all other personal injury lawsuits. Universal Medicare would be the single most effective way to "reform" personal injury lawsuits.
Concierge Medicine
Or whatever you prefer to call it. There isn't really a good name for it because, really, it is what every general medical practice should be about.
Basically, you pay a retainer to a general practicioner . . . maybe $1500 per year. In return, the physician limits the number of patients in their practice, say to 300. That guarantees the physician revenue of $450,000 to cover their annual "fixed" expenses, assuming a maximum of 300 patients is actually achieved. Other than getting your foot in the office door, that annual fee includes a complete annual physical examination. But hopefully you won't need additional visits.
If you do get sick, you pay for office visits and tests and such as normal. The key thing is to focus on that annual physical and prevent illnesses before they occur. By reducing the patient load, physicians are better able to focus on prevention rather than cure. By guaranteeing a certain level of revenue, you can hopefully encourage people to become general practice physicians focused on preventive medicine.
If you were to add in the benefits of an active health club membership with a professional trainer, a health lifestyle for this country becomes an obtainable goal. It would be a good start.
I would like to see a health care reform bill that expands Medicare coverage to every legal resident of this country. It should include provisions for the above, concierge medical fees and health club membership with monthly monitoring by a professional trainer. This would rein in costs by helping people to be healthy and prevent illness. Anything less, in my opinion, would be a failure. And it would be a lot cheaper than many would imagine.
Basically, you pay a retainer to a general practicioner . . . maybe $1500 per year. In return, the physician limits the number of patients in their practice, say to 300. That guarantees the physician revenue of $450,000 to cover their annual "fixed" expenses, assuming a maximum of 300 patients is actually achieved. Other than getting your foot in the office door, that annual fee includes a complete annual physical examination. But hopefully you won't need additional visits.
If you do get sick, you pay for office visits and tests and such as normal. The key thing is to focus on that annual physical and prevent illnesses before they occur. By reducing the patient load, physicians are better able to focus on prevention rather than cure. By guaranteeing a certain level of revenue, you can hopefully encourage people to become general practice physicians focused on preventive medicine.
If you were to add in the benefits of an active health club membership with a professional trainer, a health lifestyle for this country becomes an obtainable goal. It would be a good start.
I would like to see a health care reform bill that expands Medicare coverage to every legal resident of this country. It should include provisions for the above, concierge medical fees and health club membership with monthly monitoring by a professional trainer. This would rein in costs by helping people to be healthy and prevent illness. Anything less, in my opinion, would be a failure. And it would be a lot cheaper than many would imagine.
Monday, October 19, 2009
Liberal
An adjective.
Favorable to or in accord with concepts of maximum individual freedom possibly, especially as guaranteed by law and secured by government.
Favorable to or in accord with concepts of maximum individual freedom possibly, especially as guaranteed by law and secured by government.
Monday, September 14, 2009
What Their Words Reveal
I've been hearing a lot of noise from a very small minority of physicians who are just tore up with some kind of superior stupid. Take for instance this excerpt from a letter to the editors:
"Private health insurance pays about half of what physicians bill, Medicare pays about 20 percent and Medicaid pays even less."
So basically all of the payers in health care think physicians charge too much and refuse to pay those charges. That is what this statement means. And we know physicians charge too much because no one pays them what they charge yet they remain viable businesses.
And the always dubious claims regarding tort reform are just plain outrageous. Physicians paid around $10 billion in malpractice premiums last year. And payouts on malpractice claims were around $5 billion. Neither of these figures is a significant portion of U.S. health care costs. Yet, tort reform is once again being presented as a must-be-addressed issue by those who otherwise oppose all health care reform. Ande since $10 billion isn't enough to control health care costs, the tort reformers are relying mainly on an intangible boogeyman named Defensive Medicine.
The kindest thing that can be said about Defensive Medicine is that it is a strawman. It is not only intangible, but almost completely hypothetical in nature. Tort reform advocates claim that this bogeyman accounts for 10% of health care costs, $300 billion. Malpractice payouts accounts for $5 billion, but tort reformers want you to think that physicians spent 60 times that amount to prevent having to pay $5 billion. Really?
Now, I said the kindest thing that could be said about Defensive Medicine is that it is a strawman. But I am not feeling particularly kind toward tort reformers. If a physician orders a test merely to prevent a lawsuit . . . I cannot even complete that thought it is so outrageous. The physician hasn't prevented anything.
A malpractice claim is preciated upon a violation of the standard of care. If the standard of care does not call for a certain test, then ordering that test is not defensive. It is frivolous and unethical. If the standard of care does call for a test to be performed, then ordering that test is not defensive. It is the standard of care.
So if a physician claims to practice Defensive Medicine, remember that that physician is admitting to engage in Frivolous Medicine and confessing to unethical practices.
Friday, September 19, 2008
What Is Property?
With recent "purchase" of AIG by the U. S. government, the word "socialism" has been receiving a lot of unwarranted attention.
We have long thought about and played with various economic systems. There are all manner of theories out there, but they mainly are based upon the different views of the ownership of property. We can argue about capitalism versus socialism versus fascism versus communism until the cows come home but it is meaningless if we do not understand what we are arguing about. And to begin to understand economic theories, we have to understand what property is. Because that is the dividing line of economic theories.
We can dismiss personal property and intellectual property from consideration because both of those items are determined by the economic system; they do not define the economic system but are defined by it. So basically we are talking about real property. Land and the resources within the land. We can also include improvements made to the land, such as a factory and equipment permanently installed within it. The means of production, thus, are the land, resources and improvements thereto.
There are essentially two theories about the ownership of property, now that we have defined it. First, is the theory that rejects the idea that property, nature, can be owned by individuals. The second obviously accepts the idea that property can be owned by individuals. That's it, folks. Nothing more complicated than that. And they cannot be reconciled with each other. There is no combination of the two. You cannot accept the idea of private ownership of property and reject the idea at the same time.
The theory accepting private ownership is obviously capitalism. The other theory is basically ever other economic model ever created. For simplicity's sake, we can divide the theory rejecting private ownership into two camps. The first would be those who believe nature cannot be owned and is available to all; this would be communism. The second would be those who believe that the government owns nature on behalf of the . . . whatever (whatever being the separation in the remaining economic models; generally some type of aristocracy); this would be socialism.
Socialism is the predominate economic system for most of mankind's recorded history. Fascism, feudalism, you name it, are variations of socialism. Communism being the predominate economic system for much of mankind's unrecorded history.
That may be debatable because we never consciously created capitalism; it just sort of snuck up on us and we didn't even see it until Adam Smith pointed it out to us. It arose from feudalism, when monarchs started giving land to subordinates. At some point, that gift of the monarch became less of a noble's "duty" and more of a noble's "right." When the nobility further began giving land away to commoners, the concept of private ownership became entrenched.
We have pretty much done away with any valid concept of socialism or communism and they are relatively useless terms to be casting about in a capitalist society. At best we have concepts of capitalism that may resemble some loose concept of socialism or communism in a general sense. But they are based on an entirely different view of the world and cannot be mixed with capitalism.
Thursday, August 7, 2008
Why I Am A Liberal
Because I am an American and believe in our Constitution and Declaration of Independence.
Because I am a Capitalist.
Because I am a Christian.
I cannot think of three more liberal institutions than those.
This has been another episode of simple answers to simple questions.
Because I am a Capitalist.
Because I am a Christian.
I cannot think of three more liberal institutions than those.
This has been another episode of simple answers to simple questions.
Wednesday, August 6, 2008
A Day Which Will Live In Infamy
Seven short years ago today the President of the United States was briefed on a summary of intelligence related to terrorists activities in the United States. As the then National Security Advisor to the President was fully aware, that summary briefing was titled "Bin Ladin Determined To Strike Inside The U.S."
The President responded to be being briefed about 70 full field investigations into possible terrorist attacks inside the United States by telling the briefer: "You've covered your ass."
He wasn't covering his ass, Mr. President; he was providing you with information so that you direct the Administration on their efforts to protect this country. You failed.
And more than 3,000 Americans died as a result of your failure.
As bad as that was, you continued to make poor decisions that led to the deaths of thousands of other Americans and hundreds of thousands of people in other countries.
In honor of my friend Todd's birthday, I offer this birthday song in remembrance.
It's you're birthday.
Oh, happy birthday.
Misery, grief, and despair
People dying everywhere
On your birthday.
Oh, happy birthday.
The President responded to be being briefed about 70 full field investigations into possible terrorist attacks inside the United States by telling the briefer: "You've covered your ass."He wasn't covering his ass, Mr. President; he was providing you with information so that you direct the Administration on their efforts to protect this country. You failed.
And more than 3,000 Americans died as a result of your failure.
As bad as that was, you continued to make poor decisions that led to the deaths of thousands of other Americans and hundreds of thousands of people in other countries.
In honor of my friend Todd's birthday, I offer this birthday song in remembrance.
It's you're birthday.
Oh, happy birthday.
Misery, grief, and despair
People dying everywhere
On your birthday.
Oh, happy birthday.
Beating Irony To Death
A headline on the last page of the front section of today's Post & Courier caught my eye. The headline claimed that 2 former CIA officials denied telling Ron Suskind that they had been told to fabricate intelligence linking Iraq to the 9/11 Hijackers. So naturally I read the article.
It was an AP article under Brett J. Blackledge's byline. I couldn't find a link to the article on charleston.net but here is a link to it at Newsweek with a headline similar to the Post & Courier headline.
One of the first things I read in the article was not that two former CIA officials deny Suskind's claims, but that the White House issued a statement on their behalf. Then I read further that itself wasn't really true. The White House issued a statement on behalf of one of the former CIA officials who himself was claiming to speak on behalf of the other.
But the entirety of the story revolves around accusations that the White House is fabricating communications for people.
So, you know, maybe it might be better to not use the White House as a source for communications it claims were made by others!
Update: To be clear, the former CIA officials in question are named Robert Richer and John Maquire. The White House allegedly issued a statement on behalf of them both. It actually was only Richer allegedly making the statement. In the statement Richer alleges that he spoke with Maquire who authorized Richer to say that Richer never order him, Maquire, to fabricate evidence. It is all very self-serving from beginning to end.
Update II: Suskind is standing by his book and says it is all on record in his notes and recordings. Suskind also claims that Maquire was pressured to make a statement based on misleading information.
It was an AP article under Brett J. Blackledge's byline. I couldn't find a link to the article on charleston.net but here is a link to it at Newsweek with a headline similar to the Post & Courier headline.
One of the first things I read in the article was not that two former CIA officials deny Suskind's claims, but that the White House issued a statement on their behalf. Then I read further that itself wasn't really true. The White House issued a statement on behalf of one of the former CIA officials who himself was claiming to speak on behalf of the other.
But the entirety of the story revolves around accusations that the White House is fabricating communications for people.
So, you know, maybe it might be better to not use the White House as a source for communications it claims were made by others!
Update: To be clear, the former CIA officials in question are named Robert Richer and John Maquire. The White House allegedly issued a statement on behalf of them both. It actually was only Richer allegedly making the statement. In the statement Richer alleges that he spoke with Maquire who authorized Richer to say that Richer never order him, Maquire, to fabricate evidence. It is all very self-serving from beginning to end.
Update II: Suskind is standing by his book and says it is all on record in his notes and recordings. Suskind also claims that Maquire was pressured to make a statement based on misleading information.
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