The Andrew Winters Blog

Winters Law Office Blog

2008-12-15T12:05:00.002-05:00

As you can tell, I not updating this blog anymore. I am, however, maintaining a blog through my website --

www.winterslawoffice.com

In that this blog is part of my web site, it is fairly tightly focused on criminal defense issues. I still have periodic thoughts about other issues that some day I will wish again to blog about. Until then, please visit me at the above address and feel free to send your comments and/or subscribe through the RSS feed.

Thanks and happy holidays!

The General Motors situation

2005-11-11T10:25:00.000-05:00

here's an idea ...

Why doesn't G.M. just go into the employment training business. Instead of having a bunch of idle and underutilized workers getting paid good salaries to do next to nothing, why don't they just train the workers to help G.M.A.C. Most people who can learn to work in a factory could also learn to --

1. sweep up an office
2. answer a telephone
3. type
4. close a loan (let's face it, it's not rocket science)

Why have a whole bunch of perfectly capable people sitting around twiddling their thumbs on what is ultimately the U.S. shareholder and taxpayer dollar? Let's get worker's working. It's not economical to produce automobiles in this country. We're a service based economy. Let's face it and move on.

If they let me manage G.M. I'd close every factory tomorrow. Transport the machinery to India, pay off the U.S. workers whatever the government and public opinion will accept, and just call it the end of an era. We'll all be better for it in the long run.

The Stock Market and Interest Rates

2005-10-11T18:31:00.000-04:00

(Note: this will be the first part in a continuing series)

Below is a graph of S & P 500 Price to Earnings Ratio that I got from www. generationaldynamics.com As you can see, price per earning hit a historic high during the bull run of the late 90's, and is currently still quite high. Some cry apocalypse.

In my mind, it's really the inverseof the p/e ratio that's important to study (i.e., the earnings per price ratio). This is because the inverse of p/e tells you what the return per dollar is based on current earnings, assuming no or even growth. The p/e inverse of stocks in general should correlate with the rate of return on any alternative forms of investment, such as real estate or bonds. Of course, because earnings growth is generally expected for stocks, the inverse of the p/e ratio will tend to be lower than long term interest rates, for which the return remains constant for the life of the investment.

Using statistics gathered from the S & P 500 and posted to the web by Economist Robert Shiller, I graphed the inverse of the S & P 500 against the long term interest rates as tabulated by Mr. Shiller. Clearly, since about 1960, the inverse p/e has been very highly correlated to long-term interest rates. This is likely the result of increasingly conscious efforts by the central bank to control this relationship. I know this isn't anything new but the bottom line is this: the value of assets is dictated by the value of money, which is dictated by interest rates, which are controlled by the central bank. The more an investor can get from a safer investment (e..g, bonds), the less likely she will be to invest in a riskier asset with a higher possibility of return (the stocks). Stock prices will have to be lower for her to buy, and so the prices will come down, driving the e/p up, which is why the interest rates and the e/p of stocks move in tandem. Later we'll add median home values to the mix ...

Technology

2005-08-16T08:45:00.000-04:00

You might remember my post from a while back about my dream of creating one device to carry with you for all of your functions (e.g., keys, phone, tunes, wallet, license). From the front page of this morning's Wall Street Journal:

Takeshi Natsuno, a Japanese business man is "pushing a new line of cellphones that work like an electronic wallet with cash stored inside ... The first version, introduced in July 2004 [in Japan], can store up to about $450 in cash ... About 22,000 retailers in Japan have installed devices at their cash registers that can recipe the phone's signal."

Somebody needs to notify Wal-Mart about this immediately!

N.H. charges against illegal immigrants dismissed!

2005-08-12T16:20:00.000-04:00

I have this through a third party, so new link yet. In case you don't know the story, here's a post I did on it a little while back.

Bottom line is, these trespassing charges against illegal immigrants solely because they were in the town were totally bogus. Thank god Judge Runyon had some common sense. Hopefully these arrests will disappear from memory and don't represent a trend.

Judgment against public defender reversed

2005-08-11T13:45:00.000-04:00

Here's an interesting post from "a Public Defender" blawg. According to the story, a man was shot and paralyzed by some cops, who then planted a gun in his hand, getting him convicted for assault. In the aftermath (story doesn't say what happened to the cops, who hopefully were sent to prison), the man successfully sued his public defender for failing to act on knowledge that the officers involved had a pattern of corruption. The award was reversed, however, because of juror misconduct. In fact, apparently one of the jurors had starred in a movie about the scandal and never mentioned it!

The question I have is, who is theoretically most liable for the man's wrongful conviction? Clearly the immediate officers involved but, after that, I think the next most responsible agencies are the police department and the prosecutor. Only if those agencies were non-negligent should a public defender be liable, in my opinion.

Blogging tip

2005-08-10T11:13:00.000-04:00

Here's a tip from the blog of legal marketing expert Larry Bodine, quoting a comments made at a conference by legal blog marketer Kevin O'Keefe. The best advice is this: keep your posts short, and quote, link and cite other blogs and cites. This is O'Keefe's advice for getting traffic, which apparently has been successful for him.

He says make each post two paragraphs, with no more than two sentences each! That strikes me as impossibly short, and he even gleefully violates this rule in the post itself. Nevertheless, I can't disagree that brevity is undoubtedly a virtue.

Fantasy Blog Market?

2005-08-09T16:57:00.000-04:00

Here's a link to a web page called the "Fantasy Blog Share Market." What the point of it, and who would be interested, I'm not sure. Is this a joke? Is this about people trying to make money of other people's blogs, or is it about entertainment? Who are these people?

Court appointed lawyer fees

2005-07-25T16:10:00.000-04:00

Here's a post from Carolyn Elefant at the My Shingle blog. She's critical of Mass. court appointed counsel who have been complaining rates. This is what she says:

Court appointed lawyers can't expect a guaranteed stream of revenue at private rates. It's a trade off. If lawyers want the security of a flow of cases for which they don't have to advertise or market, then they can settle for court appointed work at a lower rate. If they want to make more, then they need to go out and find the clients who are going to pay - and stop asking the captive ones to fork up even more money.

And as I've always said, court appointed work is interesting and a good way to pay the rent early on or even a way to do work that's got a pro bono element without working entirely for free. But if you want to step up to a successful practice, your plan has got to include weaning yourself from court appointed work. After all, why limit yourself to $84,000 a year when you could possibly make ten times that much?

Of course, being a public defender for my entire professional career thusfar, I'm biased on this subject. I see her point but what she doesn't acknowledge is an inherent tension that will arise when a person carries a mixed caseload of court appointed work and retained work that pays at a higher rate. Which clients are going to get the more effective representation?

Plug for my brother

2005-07-22T13:53:00.000-04:00

A musical that my brother, Ben Winters, co-wrote, opened Wednesday night in Albany, NY. "Breaking Up is Hard to Do," based on the songs of Neil Sedaka sold-out, and already had its run extended. It also got a great review from the Schenectady paper (can't link as requires a subscription).

Neil himself was in attendance, and seemed to be having a great time.

Supreme Court nominee John Roberts

2005-07-20T09:10:00.000-04:00

I was obviously wrong in predicting that Gonzalez would get the pick. However, I still see him a strong candidate for the next spot that opens, possibly Rhenquist's after one more session.

From the reports I heard, Bush went farther than any President in recent memory, and perhaps history, in the numbers of Senators he consulted before making a selection. I gotta say, not that I'm a fan of the President, but that was a smart thing. Why have a nasty confirmation hearing if you don't need to?

Judged from the appearances alone, Roberts doesn't look like the kind of guy who would knock a teenager up, or be found in a strip club or smoking a joint behind a bowling alley. I won't say he looks like Ward Cleaver, but he looks equally puritan. I bet he gets confirmed easily. Hopefully the Court will still need one more vote to overrule Roe v. Wade (assuming that Scalia, Thomas, Rhenquist, and Roberts would all vote to overrule it in a heartbeat).

Good luck, America! (meanwhile Canada goes ahead and legalizes gay marriage ...)

Sex offenders and recidivism

2005-07-16T16:11:00.000-04:00

Every day it seems we hear a story about a young girl who was murdered by a sex offenders who had been released from prison. The editorial implication is often that the murderer should never have been released. The problem with this type of analysis, however, is that it rarely discusses actual studies on recidivism. Of course, if we *know* for a fact that a particular offender is highly likely to murder when released, then it would be hard to argue that he should ever be released. However, we never know for sure which offenders will murder and which will never offend again. Some might say err on the side of caution, and incarcerate all sex offenders for as long as possible. The problem, though, is that so many people are classified as sex offenders that we'd be incarcerating a far larger percentage of our population than most people would ever suspect. The vast majority of these people will not murder when they are released, I'm confident of that, and many will be productive members of society.

Eugene Volokh has this interesting post on the RRASOR ("razor") test, which is a simple screening of sex offenders to determine their likelihood of recidivism. Any of the following factors are deemed to increase an offender's likelihood of recidivism: youthfulness, male victims, multiple offenses. What Volokh, a law professor, wonders is, if the parole board takes this test into account in determining who will get parole, does it violate equal protection of law?

Illegal immigrants being prosecuted for trespassing in small-town southern New Hampshire

2005-07-14T08:13:00.000-04:00

A series of arrests in the towns of New Ipswich and Hudson have gathered some national medial attention (N.Y. Times article here - you must subscribe for free). Local police officers, upset that INS will not arrest illegal immigrants in the community, arrested them for trespassing.

I have a general opposition to immigration control unless an individual seeking to enter can be shown to be dangerous. My opinion is that, contrary to popular belief, immigrants produce more for the economy than they take from it, and don't commit crimes disproportionately. Therefore, they are generally a benefit. Overcrowding is not an issue in this country. As evidence, just look at which area has a higher standard of living -- a densely populated state like New Jersey or Rhode Island, or a sparsely populated one like Wyoming or Alaska? The answer is of course the densely populated states, because the more people working in close proximity the more efficiently each individual can produce economic value. Rural America is the ground of many future New York cities, and this is a good thing, trust me.

Immigration is one of Bill O'Reilly's pet issues and it makes me laugh every time he talks about it on his show because he has no idea what he's talking about. What it is is the fear of the other. He uses statistics in a misleading way to provoke fear in his audience.

In fact, tight immigration control is a wasted of resources and a serious drain on our economy.

How does N.H. compare to other states in regard to lawyers per capita?

2005-07-12T11:09:00.000-04:00

I was curious about this question, so I got date on lawyers per state (for the years '04 and '05), state population (as of July '04), and gross state product (as of '04) . I put this data into a spreadsheet to get the following pieces of information:

1. How many lawyer are there in that particular state?
2. How many dollars are there per lawyer? (Gross state product vs. number of lawyers)

Just to give you a sample of how it came out, here are the top and bottom states for each figure (note: this only includes the 50 states, not D.C., Virgin Islands, etc. D.C. would obviously have far and away the most lawyers per capita,.)

Lawyers per state:

1. Massachusetts - 7.76 atty per 10,000 people
2. New York - 7.39
3. Connecticut - 5.13
4. Illinois - 5.02
5. Rhode Island
46. Indiana - 2.11
47. North Dakota - 2.05
48. North Carolina - 2.03
49. South Carolina - 1.99
50. Arkansas - 1.92

Millions of dollars in the economy per lawyer
1. Delaware - 23.40
2. North Carolina - 19.38
3. North Dakota - 18.11
4. Nevada - 18.01
5. South Dakota - 17.71
46. Louisiana - 9.00
47. Rhode Island - 8.75
48. Illinois - 8.28
49. Massachusetts - 6.38
50. New York - 6.31

Clearly this doesn't mean that lawyers in states like N.Y. and Mass. are making less money than in places like North Carolina and South Dakota. Just the opposite is probably true. My conclusion from this data is that law firms in states do national work that includes services for businesses conducted all over the country.

To answer the question posed above, New Hampshire ranks # 36 in terms of lawyers in the state, with 16.35 lawyers per 1,000 persons. In terms of money per lawyer, NH ranks #9 at 16.35 millions of dollars per lawyer. It must follow that Massachusetts and N.Y. lawyers are taking our economy's dollars!

Here is a link to my spreadsheet. Sheet 1 and Sheet 2 contain the exact same data, but Sheet 1 has the states ranked by dollars per lawyer, while Sheet 2 has them ranked by lawyers per State.

Technology

2005-07-11T19:31:00.000-04:00

One thing that I have to say has been bothering me is that I can't get this piece of hardware that I bought, that supposedly will allow me to watch cable television through my computer monitor in a window, to work. The funny thing about it is is that I don't even like TV all that much. It just seems so cool to not have to two screens in the same room just to watch TV and use the computer at the same time. What's the point? Ockham's Razor (alt. spelling Occam's Razor).

Anyway, another thing I'd like to see, along the same lines, is house and car keys that could attach to your telephone/ipod. Why not, right? They can do it at hotel rooms, which are usually in much worse neighborhoods than your house. And cars I'm sure they could do it. Of course the cars and locksmiths would have to cooperate but why wouldn't they. I wonder how hard that would be to set up.

Then all you'd have to do is carry one device around with you that would just be a very small computer designed to do exactly the stuff you like -- talk on the phone, listen to music, e-mail, view the web. It would just be slower with break-ups in service, etc., the same stuff people used to deal with a lot more often before DSL.

In any event, I wanna be the first person to carry one of those things. Then the next step would just be adding a credit card onto there and not carrying any money either. Then, of course, if you lost the thing you're screwed.

People & Animals

2005-07-10T17:28:00.000-04:00

I just got this subscription to the supposedly most e-mailed photos. I've been surprised how many are of animals. I have to say that today's photo of a 7-day old baby macaque is cute. (Go here for photo with full caption from yahoo).

To me, what's more interesting than animals is the human obsession with animals, which I think reflects an inherent moral quandary over how we treat other life forms, and ultimately matter. Though I'm a vegetarian, I don't consider myself an animal rights advocate, and I don't intend to suggest I wish to influence the the behavior of the listener on this point. I'm simply noting the obvious subjectivity over where one draws the line.

Naturally, human morals is contingent on the notion that our consciousness is entitled to far greater consumption of resources than any other form of consciousness. It's a survival mechanism: Each organism, including the human, will naturally consume as much as possible, before allowing any other organism, except those with a similar genetic makeup, to consume any.

In order for the human mind to make this logically sensible, which is necessary for survival, it must judge the consciousness of the other in relationship to the other's apparent similarity, or lack thereof, to the mind of the judge. That such a notion of morals would evolve make sense, because our genes motivate our bodies to promote the success of bodies that house similar genes (see Dawkins). Thus, a person is normally motivated greatly to help a relative, to a much lesser extent, the baby macaque, and only nominally, bacteria.

The reductionist school of ethics analyzes all behavior as ultimately caused by prior events, that themselves were caused. That is, free will is purportedly denied. I'm naturally critical of this thesis, because it seems to deny the possibility of morals. Yet we have good reason for wanting morals to exist. If they do, it bodes well for our long-term future ...

Unemployment hits lowest rate in almost four years.

2005-07-09T12:08:00.000-04:00

Unemployment rate hit a nearly four-year low in June at 5%. It hasn't been lower since September, 2001. Interesting how this AP Economics story doesn't discuss that curious coincidence/ connection (how you describe it depends on your perspective). Meanwhile, the price of oil barrels dropped slightly. I think high oil prices are good for the economy. See here for my opinion on that.

On news of the low jobless report, the dow went up to 10,449. The dow, in my opinion, is "our" (all of the people in the United States) collective best estimate of a representation of our total net worth. While the dow doesn't necessarily reflect how much we have, it reflects how much we think we have which, for immediate purposes that we deem "the economy," is more relevant. Economics is ultimately psychology -- the more we think we have, the more we'll spend, and the less hard we'll work, and thus our standard of living will immediately rise. However, the more we spend and less hard we work in the short-term, the less we'll have to spend and the harder we'll have to work in the future. This will then force a reassessment of our assets in the future, when we have less than we otherwise would have. (Of course, such a simple analysis ignores the factor of technology, which theoretically means that total assets could rise even with less total labor). That explains the cyclical nature of the economy - the constant reassessment of assets.

Rhenquist to retire imminently?

2005-07-08T19:46:00.000-04:00

According to this post at the Volokh Conspiracy, Bob Novak just said on CNN that Rhenquist will be announcing "as soon as the President lands," which will be approximately 5:00 EST. [update as of 7/9 @ 8:45 a.m.: No Rhenquist retirement after all, so all those rumors were wrong, at least as to the timing of the announcement. There was also some talk yesterday of Stevens and Ginsberg possibly making announcements, but a retirement from them was seen as unlikely].

The theory of evolution and homosexuality

2005-07-08T01:21:00.000-04:00

The existence of homosexuality among a distinct percentage of the human population seems to contradict the theory of evolution. Most people are aware that the traits of organisms that reproduce, especially in high numbers, will come to dominate in future generations over the traits of organisms that don't reproduce, or reproduce far less than average. Thus sex is pleasurable: because organisms that devote energy enjoy towards having sex will tend to pass on that trait to future generations, while organisms that devote the same energy elsewhere will not pass on their proclivities. Why, then, does homosexuality exist in the animal kingdom? It would seem from the above that the opposite would be true. Organisms that show no desire for sexually reproductive activity would die without producing any offspring that shared the lack of desire. I can venture a few guesses at some answers but really don't have a clue what the honest answer is. According to this Wikipedia article, homosexuality is far more prevalent in the animal kingdom than had until recently been thought, probably because of observer bias. For example, the article says that 8% of male rams exhibit a preference for male partners, and that male penguin couples are known to mate for life together. Again, how does the theory of evolution explain these behavioral traits having survived? One possible answer lies in a "group selection" theory of evolution. For a controversial example of a popular writer who puts forward that type of theory see Howard Bloom's The Lucifer Principle. The basic idea is that groups compete, not just people, so that the traits of a successful group as a whole will be passed down to future generations, while unsuccessful groups will not pass on their traits. I see the process working but not necessarily on an evolutionary level, but more on an anthropological one. For example, let's take two cultures - one discourages homosexuality, and the other encourages it. Those two cultures compete, and the one that encourages homosexuality prevails, that is, it's cultural norms come to dominate. In that event, the social constructs that encouraged the homosexuality are passed down to descendant cultures. If we accept this model, then the current existence of homosexuality demonstrates a cultural construct that has contributed to the success of contemporary culture. The question then becomes, what about homosexuality has made it at least somewhat helpful? Check out Plato's The Symposium next time you're bored. Bloom though, and some others, while not denying the importance of anthropological explanations, somehow go further by saying that group selection can operate at a biological level. This I'm not persuaded of, and the prevailing theory, as expressed most popularly in Richard Dawkins's The Selfish Gene, is that group selection is not possible. All of this, of course, has enormous ramifications for the law in that the law is an omnipresent cultural construct that lends itself to study. As such, it is most interesting to note for its function ...

Off-topic: best two-chord songs?

2005-07-07T19:09:00.000-04:00

I'm trying to make a list of the best two-chord songs that I'm aware. The whole three-chord song thing is a cliche by this point. Few people talk about two-chord songs.

Here's what I've come up with so far: "Jambalaya" by Hank Williams Sr.; "Jane Says" by Jane's Addiction (it might have a quick bridge, and if so, I stand corrected, but as far as I can recall it's a two-chord song) and finally one of the true all-time best songs in the history of music, "Tonight the Bottle Let Me Down" by Merle Haggard.

Can you think of any others?

Wal-Mart: Diversity is good for business

2005-07-06T21:20:00.000-04:00

According to this article from law.com, Wal-Mart is demanding that all of its legal partners boost up the number of female and "minority" attorneys of color. They're probably doing this partly for their image, but also partly because they realize that diversity really does help business -- people of diverse "backgrounds" will tend to have diverse sets of ideas as well. Of course, different geographic and lifestyle backgrounds is also important, but that's harder to assess, and therefore harder to implement. "Race" and gender has the advantage of being easily quantifiable (although with race that's not at all true, but it's still assumed to be true by some slow earners).

This story tends to support the libertarian view of economics: good business is utlimately ethical business. Like I said, this might be partially for the P.R., but don't assume that's Wal-Mart's entire motive here. I think it's a selfish act by business for what's in it's own good: a wider base of positive ideas, leading to greater profit.

The Winters school of economics

2005-07-06T19:37:00.000-04:00

(Note: I am not an economist)

Frequently economists and politicians bemoan the fact that we import more goods than we export. Except for the necessity of having resources stockpiled, and an emergency production scheme in place should we be cut off from the rest of the world's resources, I don't see this reasoning. In fact, just the opposite is true as far as I can tell: goods being manufactured elsewhere and imported here is what allows Americans to dominate the world economy.

Let's work this out: the primary reason why a product can be produced in Singapore for much less than what it can be produced for here is the low cast of labor. That is, the Singapore workers who make the shirt make a lot less for their labor than an American would. Thus, when the item is imported, it is cheaper. This raises our standard of living, because goods are cheaper than they would be otherwise.

What about the American factory worker who loses this job? Undoubtedly he loses in the short run, and maybe the long run as well, depending on his ability to use other skills in the job market. The economy as a whole, as measured by the standard of living, improves because goods cost less.

A complete theory would address the ethics vis-a-vis the American worker, the Singapore worker, the consumers, the rest of the worlds, the environment, etc. However, I'm all concerned about practicalities right now.

What this system does is allows Americans to dominate, because American labor is worth more than foreign labor. Why is this? Because the American laws control, and so living in America, and receiving the benefit of our laws, is what allows the labor of Americans to be worth more.

That is, Americans are not inherently better workers than Singaporians or whoever. Yet our labor is worth more. Why is that? Because we Americans provide services: legal, banking, business, etc. Other citizens of the world are, by the nature of the system, unable to render these services, because they don't live in America, and because they don't have access to the education about how these systems work.

In the future, as information becomes more and more accessible, more and more rapidly, American domination will likely decline.

In what areas of law will the new appointee have the most impact?

2005-07-05T12:46:00.000-04:00

The SCOTUS Nomination Blog has a continuing discussion of which areas are most likely to see change with a new Justice. One case that takes on new importance is a New Hampshire case -- Ayotte v. Planned Parenthood, dealing with parental consent restrictions on abortion. Previously the Court had held that all abortion restrictions must have an exception for the health of the mother. Will a new Court overrule that principle? Could be a test for how strictly a new Court will construe stare decisis. A broad application of stare decisis will mean fewer reversals of prior caselaw, while a strict interpretation will mean more reversals. As SCOTUS points out, stare decisis is more likely to be rejected in constitutional cases, as opposed to statutory cases, because in those cases Congress does not have the power to legislate around the decision.

The blog also cites a piece by Rick Hasen in the New Republic (subscribe for free for the full article) discussing how a new Justice could mean surprising changes in election law, frustrating Voter Rights activists.

Happy Independence Day! Checks and Balances Are Plugging Right Away ...

2005-07-04T23:35:00.000-04:00

Couple of articles in the past few days regarding the O'Connor resignation: The New York Times has this piece about how senators and other politicians and interest groups have started the war of words on talk shows and editorials (you have to subscribe for free to get the Times online). Right now the dispute is over procedure, and specifically, what questions of the candidate are "appropriate." Of course, while the debate is phrased as procedural, the ultimate goal for both sides is policy.

Even before O'Connor announced her retirement, there were reports of interest groups starting to prepare for a battle, presumably at the time anticipating a Rhenquist announcement. The fact that it's O'Connor and not Rhenquist makes the position even more important. Here in New Hampshire I recall that Republican Attorney Tom Rath, longtime friend of Souter and Rudman has already been assigned to start campaigning for the appointee, whoever that may be.

The Washington Post also has a procedure-oriented story about a deal that was made among seven Republican and seven Democrat senators to avoid filibusters save for "extraordinary circumstances." Will this box the Democrats in and prevent them from getting the most possible leverage in the attempt to force a more moderate nominee? We'll see - I'm sure some of the Democrats will not find the agreement binding, especially if they objected to it in the first place.

Editorial from the author: high gas prices are good in the long run

2005-07-03T03:23:00.000-04:00

Here's an blurb in NH Insider about, despite rising gas prices, people are traveling in high numbers this 4th of July weekend. In a truly free market, gas prices should be higher to assess the damage that burning oil does to the environment and health of other people. This would have the affect of discouraging people from using gas, and encouraging them to use alternative energy sources, or simply use energy more efficiently.

I am an eternal optimist. In the long-run, we will run out of oil, but there's no particular reason why we must be dependent on oil. For one thing, with computers we truly need to travel a lot less.

[The irony might be that the Orwellian big brother scenario actually is a utopia not, a police state. With computers, which should become increasingly cheap, all barriers are broken, information is immediately accessible, cooperation is more efficient. Hopefully, this will mean that it will be increasingly difficult to horde power. I will post my case for optimism in the future]

New York Times coverage of the Supreme Court opening

2005-07-03T01:27:00.000-04:00

In one article, the Times talks about how conservative Christians are rallying against the nomination of Attorney General Alberto Gonzalez, who is thought to be soft (from their perspective) on abortion and affirmative action. I don't know how his problems with the Guantanamo thing will be a factor.

The other piece is about Senator Arlen Specter, chair of the judiciary committee. He himself is not too popular with conservative Christians.

Breaking news: Sandra Day O'Connor just announced her retirement!

2005-07-01T14:09:00.000-04:00

Here's the news story so far at msnbc. According to my mother on the phone yesterday, who was telling me about these rumors floating around in Washington, O'Connor's husband is not well and they want to move back to Arizona.

Here's the text from SCOTUS, quoting O'Connor's letter to Bush:

Dear President Bush:

This is to inform you of my decision to retire from my position as an Associate Justice of the Supreme Court of the United States effective upon the nomination and confirmation of my successor. It has been a great privilege, indeed, to have served as a member of the Court for 24 Terms. I will leave it with enormous respect for the integrity of the Court and its role under our Constitution’s structure.

Sincerely,

Sandra Day O’Connor

It's going to be an interesting summer, that's for sure!

More on the theory of evolution and law

2005-07-01T13:39:00.000-04:00

By the way, I did hear back from Mr. Leiter thanking me for my interest, explaining a few things to me, telling me when and how the article will be available. Nothing else in this post is a response to what he said; I just wanted to make sure it was known that he did write me back, since I said earlier he probably wouldn't.

Let me clear: what I don't think is that a judge, lawyer, politician, or cop can consciously "use" the theory of evolution to make, interpret, or enforce law. Rather, I would think that evolutionary biologists would be interested in studying the behavior of the judges, lawyers, etc., in an effort to define exactly what makes us essentially human.

It's probably a stretch to say that law is *the* distinctive human behavior. There's religion, mythology, story-telling, etc. But law, I think, is representative of the type of human behavior that meaningfully distinguishes or behavior from other animals. Law also has the advantage of inherently, for its own purposes, keeping records. And I think law is representative of the other unique human behaviors. In fact, the law must be derived from them. Just as linguists theorize of a proto Indo European, or even a proto world language, and comparative mythologists then talk about a proto Indo European (and perhaps even proto world?) religion, there must also be a proto Indo European law. Or at least law-like behavior that becomes law.

At what point, and why, does the human biologist deem behavior to be in the field of social science?

E-mail that I'm sending to philosophy and law professor Brian Leiter

2005-06-30T13:45:00.000-04:00

This is a person whose credentials and views expressed in his blog I admire. If I was smarter I might be doing exactly what he's doing (not that I'm not happy doing what I do now). I've discussed his popular and insightful blog in at least one other post. I'm not expecting a response but I just thought I'd let him know my surprise. Here's the link to the post that I'm responding to. Here's the e-mail I sent him. Am I crazy?

Subject: Your upcoming writing projects mentioned in blog

Dear Mr. Leiter:

You're meaning to tell me that you intend to make the claim that evolutionary biology is irrelevant to law? That I gotta see! I've been reading your blog for a few weeks now and thought I understood you but now you've thrown me for a loop ...

I don't read Nietzsche any other way than as treating man as as an animal. Why wouldn't man's animalistic behaviors (with law being among the most distinctive) be subject to the "laws" of evolution? Sure, there is a valid critique of those who would misapply the theory of evolution in an effort to solve legal problems, but it doesn't follow that the theory of evolution is "irrelevant." I'll be very curious how you support your claim. If asked to make that argument, I wouldn't even know where to start.

Why don't you just work it all out on the blog?

Gay Marriage in Canada, Spain

2005-06-30T11:25:00.000-04:00

The Canadian House of Commons approved legislation on Tuesday night to legalize gay marriage in Canada (not law yet, though). Just today, Spain passed into law gay marriage. Here in America, at least if you listen to a lot of talk radio, we are opposed to gay marriage. In fact, we're so smart we want to pass an amendment to our founding document to prohibit gay marriage. Oh, that's a good idea! I'd feel so happy if my important rights like free speech and privacy was equated with the right to live in a society devoid of gay marriage. Clearly those rights are parallel.

I suspect that the future will make the United States look foolish on this issue, while countries like Canada and Spain will look visionary. It's no wonder that conservatives are bemoaning our Supreme Court's reliance on International Law. They can see exactly where it's going and they don't like it.

The psychological factor at play is these conservatives who support an anti-gay marriage amendment, and complain about cites to international law, fear any authority but their own. Though they purport to be God-fearing, their refusal to acknowledge the persuasive value of the ethics of other communities betrays their true reluctance to submit to authority. It's a perfectly natural and unavoidable phenomenon, and so I can't hold a grudge against them. In fact, they fascinate me.

Group attempting to exercise eminent domain over Souter's farm

2005-06-30T11:11:00.000-04:00

This is a really funny story from yesterday's Concord Monitor (linked here since the Monitor will take it's articles off after a while, I think) that some wealthy Californians have petitioned the selectmen of Weare, New Hampshire in an attempt to exercise private eminent domain over Souter's farm and convert it into a hotel. Surely that will be of greater economic benefit town, they say.

I love crazy shit like that. They say they want to have a copy of Ayn Rand's Atlas Shrugged in every room. They are not, however, associated with the Free State Project, a group of radical libertarians that have all committed to moving here within a certain number of years.

The truth of the matter is that Souter only lives there half the year anyway. The hotel could put that property to better use. Where they do they get the idea that he's so attached to the property anyway? He doesn't strike me as the sentimental type. I'm sure he could be another piece of land in the area, or anywhere else he wanted.

Justice Thomas supposedly suggest that there will be no retirements

2005-06-29T11:21:00.000-04:00

According to law.com this morning, which is quoting the Fulton County Daily Report (Georgia), Justice Thomas made suggestions that there will be no upcoming Court retirements. Thomas was speaking at the swearing in ceremony of the new Chief Justice of the Georgia Supreme Court. According to the report

Thomas noted that his court ended its term on Monday as "winds of controversy swirled about the Court's decisions and, unfortunately, about the imagined resignations."

Hard to really give a lot of meaning to that. Seems like he's more frustrated about the controversy and says "imagined resignations" as an attempt to dispel it, not as a way to disclose any information. If anything, I could see him erring on the side of saying imagined so that he doesn't get in trouble by disclosing something he shouldn't. But who knows.

Reaction to this term of the Supreme Court

2005-06-28T12:42:00.000-04:00

Over at Sentencing Law and Policy, Professor Douglas Berman is critical of the Court's obsession with death penalty cases, while wavering and qualifying with sentencing in general (e.g., Booker, etc.). As Berman and the writer he quotes point out, the death penalty is relatively infrequent in the big picture of punishment as a whole. Not that Berman seems to be against the death penalty.

Berman links to Tom Goldstein's list of 10 Court cases of the term at SCOTUS. Of that list, I'm going to pare it down to six big decisions (this is entirely my subjective analysis, based on how much people have been talking, and my legal instinct).

Kelo - city can exercise eminent domain for public development as long as the town has a plan in place for how the taking will benefit the community that it serves [5-4] (takings clause of the fifth amendment)
Grokster - peer to peer file sharing software and marketing schemes themselves violate copyright law when they deliberately and openly facilitate widespread copyright infringement [9-0] (copyright law)
Raich - feds can criminalize medicinal marijuana even when state has legalized it [6-3] (interstate commerce clause)
Roper - state can't execute a person who was a juvenile at the time of their offense [5-4] (8th amendment)
Booker/Fan Fan - the federal sentencing guidelines, to the extent that they allow a judge to enhance a sentence based on facts not found by the jury, are unconstitutional [5-4] (6th amendment right to jury trial)
Van Orden/ McReary County - ten commandment ok as one of multiple statutues on the courthouse lawn, but not ok as a framed copy inside the courthouse [5-4 on each with Breyer as the swing vote] (first amendment establishment clause)

Of these cases, I'm most inclined to "agree" with the rulings in Roper, Booker, McReary County and "disagree" with Grokster, Raich, Van Orden. Kelo, as mentioned a few posts ago, I'm right on the fence on, but inclined to agree with.

More Detail on Today's Supreme Court Decisions

2005-06-27T18:41:00.000-04:00

Ten Commandments: I was a little hasty before in my reporting of the Ten Commandments case. In one case, McCreary County v. American Civil Liberties Union of Ky., the Court reversed, finding that framed copies of the Commandments inside a Kentucky courthouse did violate the Establishment Clause (First Amendment). On the other hand, in another case, Van Orden v. Perry, a statue on the grounds of Texas Courthouse, one of 17 historic displays on the property, did not run afoul of the Constitution. Both cases were decided 5-4, with the swing vote coming from Justice Breyer.

File Sharing: In Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., the Court ruled 9-0 in favor of MGM, and against a file sharing company. This is a big win for the record and file industry. However, the Court could not agree on exactly what constitutes the outer bounds of permissible software and marketing for file sharers.

Various blawgs are covering these (see link to the side): SCOTUS, How Appealing, the Volokh Conspiracy. SCOTUS has, in fact, established mini-blawgs to discuss the Commandments case and Grokster.

Supreme Court strikes down ten commandments display in front of courthouse

2005-06-27T13:50:00.000-04:00

Here's the article at CNN. SCOTUS promises to report the case soon, and will likely have in-depth analysis. This has been one of the most watched cases of this term. Souter wrote the majority, and was joined by Breyer, Ginsburg, Stevens, and O'Connor. Scalia wrote the dissent joined by Rhenquist, Kennedy, and Thomas.

Still waiting word from Rhenquist, and possibly even O'Connor, of possible retirements.

2005-06-26T03:02:00.000-04:00

I just posted the photo below so that I could have a link to use for my profile. I need to get a better photo, but that's what's available.

Will be back tomorrow (later today) with more.

2005-06-26T02:53:00.000-04:00

Supreme Court's decision to allow eminent domain for economic development (as long as certain conditions are met)

2005-06-24T21:59:00.000-04:00

In yesterday's Kelo v. New London, a 5-4 majority of the Court approved the Conn. town's eminent domain to be used for economic development, as long as the town had a plan for how the taking would serve a public purpose. That is, the town couldn't just take the property so as to confer the benefit on another private party. But otherwise, the town could take the property to serve the public interest.

A lot of blawgers are talking about this decision: e.g., the mysterious Volokh conspiracy, and SCOTUS blawg -- each including links to a variety of different commentaries.

I have mixed feelings about this issue, I have to say. In my younger adult life (I'm 31 now), that is, about five years ago, I was a true believer in libertarianism -- Nozick and Friedman style, more or less. I can articulate the libertarian position in debate easily, and even as of two years ago, during the Bush-Kerry N.H. primary battle of '04, I frequently argued with Howard Dean volunteers, advocating a libertarian position (of course, I was not popular with those jokers, but they're all gone now anyway).

But I've gradually come to soften substantially in my libertarianism, in large part because of my disillusionment with the notion of rights, as a fiction introduced to justify the maintenance or seizure of power. As I mentioned before, my second reading of Nietzsche had a powerful influence on me that brought home a few things, and caused me to embark and a study of the basics of the theory of evolution (still have a lot to learn, of course - and, truth be told, I'm excited about it).

I still have libertarian leanings, because I do believe that power tends to corrupt, and bureaucratic institution of all sorts tend to take on a life of their own, including the "desire" to grow and ultimately reproduce. It may be, as David Friedman notes, that libertarianism, from a utilitarian perspective, has value. That is, he has stated that he is a utilitarian morally, but believes that a Kantian-type of respect for rights as having value in and of themselves, regardless of their utility, will ultimately produce the greatest utility. If that were the case, wouldn't be that convenient? Almost some sort of proof for God, although I couldn't tell you what Friedman's metaphysics are, if he has any.

Anyway, bottom line is that I don't know how I would have decided this case. The underlying criticism seems to be that corruption can never actually be proven, but it is their on some level. That is, the public won't actually benefit, only a big business that was able to influence a government. It's the case for small government, no doubt.

On the other hand, what if that turns out to be false? What if there is a case where say, it's a rich person who owns a lot of land, and it really is in the best interest of the public to take that particular land? Is the anti-Kelso argument that that's simply not possible? Or is the argument that that's possible, but the private person's property rights should never be trumped?

I know the following line of reasoning will infuriate libertarians but let me just toss it right out there: if we take the "anti-takings," or the "hard libertarian" position to its logical conclusion, then the land all belongs to the natives (what's left of them, anyway). Sure, the building belong to "us," but the land belongs to the natives. We stole it from them and everyone knows it. Why isn't the true libertarian position that the land should go back to the natives? Somebody explain that to me. Then we'll talk about the stupid fifth amendment.

New Hampshire Supreme Court: three new decisions

2005-06-24T17:05:00.000-04:00

Tothill v. The Estate of Warren Center; Mt. Washington Assurance Corporation v. Phenix Mutual Fire Insurance Company (consolidated appeal) (June 24, 2005): The primary issue was whether Tothill, who was injured while employed by Center, could sue him for negligence. Because she accepted workier's compensation benefits, she could not - her sole remedy was through worker's compensation. Her argument that she was not a "domestic employee" as defined by the worker's compensation statute was irrelevant, because, although perhaps Center was not required to obtain worker's compensation for Tothill, he did, and her claim was accepted.

Appeal of Simone Riendeau (June 24, 2005): The Court upheld the tribunal's decision that a cashier who sold cigarettes to a minor, but otherwise had a perfect employment record, was not entitled to unemployment benefits. The tribunal did not err in finding that this single act was "deliberate," thus rendering the cashier's unemployment the result of misconduct.

Soraghan v. Mt. Cranmore Ski Resort (June 24, 2005): The question was whether the Ski Resort should be liable for Soraghan's injuries, when Soraghan was not paying to ski, but was on the premises to watch and volunteer. The Court found that, even though Soraghan didn't pay to get in, she was on the property for a "purpose related to the landowner's business for which the landowner customarily charges." Therefore, RSA 508:14 did not give the Ski Resort immunity, because this statute was designed to promote private land being opened up for recreational use without charge. The Court also rejected the argument that RSA 212:34 gave the Ski Resort immunity for the same reason. Rather, the Court found that ski operator liability is governed by RSA 225-A, because it specifically addressed ski operators, not the general recreation use of land.

Should President Bush be Impeached?

2005-06-23T22:37:00.000-04:00

Brian Leiter is a professor of law and philosophy at the University of Texas. He has regularly maintained a "blawg" (law-related blog) since September of '04. He suggests that Bush be impeached. His rival is Juan Non-Volokh, author of the "libertarian leaning"Volokh Conspiracy. Volokh apparently is a law professor, but he write anonymously. His blog is popular. For some reason, Leiter wants to publicly identify "Mr. Non-Volokh." In this post from a few days ago, he brings the dispute to a head. It's half way between wrestling and the McLaughlin Group. I love it!

Leiter looks like an interesting guy. He's written stuff on Nietzsche, so he must know a thing or two about The Genealogy of Morals, one of those books that tends to stick with you, and change the way you think about the world. He seems likely to have an interest in Critical Legal Studies, an area that I'm interested in, but struggling to piece together the full meaning of.

By the way, I do not necessarily support impeaching President Bush, although I would be willing to examine all of the evidence and make an independent assessment. It's possible that Bush didn't lie, because he didn't have the requisite mental state to lie. That is, he didn't intentionally state assertions he knew to be false. However, he may have had a negligent or reckless disregard for the truth. At some point there's a fine line between ignorance and lying. Perhaps his recklessness for the truth was so extreme as to be tantamount to lying.

A second requirement, by Leiter's own admission, needs to be met for it to be wise to impeach: there must be an imminent need to replace Bush. That is, simply because Bush could be impeached doesn't mean he should be. I'd have to be persuaded of that. I mean who is going to replace him? Cheney? He's worse than Bush. There'd be no point. And obviously it would be unprecedented for both Bush and Cheney to be impeached. So it all just seems like a fantasy. I don't see even a democrat coming in and doing anything different. I mean look at who voted for the war. All of the democrats. So where does impeachment get you anything different.

Subject matter jurisdiction of the New Hampshire Motor Vehicle Industry Board

2005-06-23T13:45:00.000-04:00

As I may have mentioned before, part of the purpose of this blawg is for me to learn more about civil law (all of my experience is on the criminal side). So I will be describing and discussing civil cases as they come out. If anything looks funny, send me a line and I'll issue a correction if necessary.

Harley Davidson Motor Company v. Seacoast Harley Davidson (June 23, 2005)

The seacoast franchise protested when Harley Davidson reassigned nine Mass. zip coes that had previously been assigned to Seacoast. Seacoast filed a protest with the Motor Vehicle Industry Board (See RSA 357-C:12), and Harley Davidson moved to dismiss, arguing, among other things, that the Board does not have subject matter jurisdiction over decisions affecting Mass. The Board denied that motion and Harley Davidson appealed to the Superior Court, which dismissed the appeal as premature.

The N.H Supreme Court found that RSA 357-C:12 authorizes appeals only of final orders. This includes decisions regarding subject matter jurisdiction. Therefore, the superior court correctly ruled that Harley Davidson's appeal was premature.

Client confidentiality

2005-06-22T22:49:00.000-04:00

Without thinking much about it, in an earlier post, I discussed a few decisions where my office, but not myself, represented the defendant. Then I went back and deleted those posts from the blog, because I decided there was no purpose to discusse those cases. I don't think it's unethical but I decided to err on the side of caution.

Here's my reasoning for why it's not unethical: (a) at the appellate level the trial has already occurred, all facts are on the record, etc; (b) often the appellate lawyer never meets his client, or if he does, no confidential information is exchanged, and this is well known; (c) as long as the blog post is consistent with the argument already made on public record, and does not unfairly slant the facts either way, it doesn't seem to disservice the client, particularly considering the very few people reading a blog; (d) SCOTUS, which covers the Supreme Court, is sponsored and prmariand primarily written by a firm called Goldstein & Howe, which advertises itself as practicing exclusively in the Supreme Court. On that blog, they discuss their own cases, always with a cautionary warning that they represent one of the litigants.

Having said all, there are so many things to talk about, why risk disrespecting a client's confidence?

Who will be the next Justice of the Supreme Court?

2005-06-22T15:37:00.000-04:00

The Chicago Tribune has an article today naming Bush's supposed "short list" of individuals who he will nominate to replace Rhenquist, should the Chief retire in the near future (you have to subscribe to the Tribune for free to read the article). Attorney General Alberto Gonzales is at the top of that list and has at least three things going for him: (1) Bush wants to nominate the first Hispanic Justice; (2) it is thought that he would sail through confirmation proceedings; and (3) Gonzales and Bush have a good personal relationship. Social conservatives consider Gonzales a disaster of a selection because his views on abortion and affirmative action are either unknown or moderate.

Could it be that Gonzales will be the latest in a line of Justices appointed by Republicans who turn out to be more liberal than even their colleagues appointed by Democrats? I'm thinking most notably of Earl Warren (Eisenhower); William Brennan (Eisenhower); and John Paul Stevens (Ford). Some might argue that Souter and Kennedy somewhat belong in this category as well. Maybe 30 years from now, nobody will even be able to tell you the political party of the President who appointed "Justice Gonzales"

Welcome to my blawg

2005-06-20T21:49:00.000-04:00

My name's Andrew Winters and I'm an assistant appellate defender. I started working with the New Hampshire Publice Dender in 1999, and worked for five years as a trial lawyer out of the Concord office. This past September I started a two-year rotation in the Appellate Defender office, which is also out of Concord, but which covers appeals across the state. I never realized just how much I had to learn about the law! It's been rejuvenating though, to get a new perspective on things.

My experience is in the area of criminal law, but I also have an interest in all practice areas I realized this when I caught myself reading civil cases for no particular reason other than that they just came out. I especially like the legal malpractice and ethical complaint cases for some reason.

Through this "blawg" I hope to cover topics of interest to the New Hampshire legal community. Sometimes I tend to wander into other topics -- like politics, national news, even history and philosophy. My goal is to keep those to a pleasant minimum with this particular outlet.

The goal of this blawg is to be useful to people who practice, or care about, law in New Hampshire, in all areas. While I know most about criminal law, I will try to cover all practice areas. If you know more about a topic than me (or think you do) feel free to e-mail me a comment, which I will post if I want. Or better yet, start your own blawg, and I'll make sure to link to you (unless you're totally crazy).

The opinions expressed in this blawg are solely my own, and do not represent those of my employers in any way, other than coincidentally. In fact, nobody even knows about this blawg but me.

Nothing in this blawg should be construed as legal advice.