I’m a Tucson Arizona lawyer (business, real estate and probate law) and a Licensed Fiduciary (Personal Representative, Trustee and Guardian/Conservator). I also spend part of each day volunteering and helping raise money for good causes. At night I write!

Friday, November 25, 2011

My Big Takeaway From Steve Jobs by Walter Isaacson

Steve Jobs by Walter Isaacson is a great biography about a fascinating man. Much of the press about the book focuses on bad behavior, and I suppose no one should expect more. I know I wanted to assume Steve Jobs was a nice fellow, and I suspect I had plenty of company. In fact, the evidence suggests that, at best, Mr. Jobs could be charming when he felt like it, and that feeling like being charming consumed a very small part of many days. The media likes contra-stories, of course, so this is a lollapalooza!

So what's the real takeaway? The Apple Marketing Philosphy, a one page lesson plan for successful marketing, written by Mike Markkula. Mr. Markkula, an Apple angel investor and executive who is a big-time Silicon Valley success, provided major assistance to Apple in its formative years. The Philosophy--I haven't been able to locate it, so I'm basing my comments on quotes from the biography and web sources--is comprised of three points:  empathizing with customer needs; focusing on only key matters; and imputing core aspects of products within packaging. Put even more simply, put customer needs first (which means, of course, understanding your customers at a very deep level), focus on meeting those needs and make sure your customers know what you're doing in every possible way. If these core values are present, and you have some ability (and plenty of luck), success will come.

Translatable lessons? Absolutely! I don't suppose any healthy individual can be as focused as Mr. Jobs was, but I know I can improve my ability to understand my customers and their needs--I call them clients, and they're buying services, but so what--and that I can package what I do in ways that help people better appreciate the services they are obtaining. New goal for the new year!!!  

Sunday, September 11, 2011


I’ve wondered for years why 9/11 had to be such a big deal for Americans and America.  About 3000 people died as a direct result of the attacks and the rescue  efforts; reports actually vary with respect to actual numbers.  That number represents about one person killed for every 100,000 residents of the United  States.  In  Israel, a country that is plenty familiar with terrorism and its impact on daily life, a similar kill rate only requires the deaths of about 64 people.  [In nine of the 20 years spanning the ‘90s and the aughts, more than 64 Israelis lost their lives as a result of terrorist attacks, albeit not on one day.]  In Iraq the number is about 233.  According to Iraq Body Count, between 2005 and 2007, there were an average of 60+ violent deaths in Iraq every day, the equivalent of more than 720 Americans dying violent deaths every day.

In America, by the way, about 40,000 people die in motor vehicle-related incidents annually, a number that represents one of every 7500 people.  Firearms play a role in about 30,000 deaths per year, or one death for every 10,000 people, and half of those are from suicides.  About 25 times as many people die in the United States every year from drowning and boating-related accidents as the number of people who died on September 11, 2001.

So, what happened?  Why was a horrific terrorist attack so significant for our nation.  First, al Qaeda used planes.  People have a thing about plane crashes.  They’re very upsetting!  We accept a horrendous number of deaths from preventable causes–car crashes, shootings and drownings, for example–but, when one or two hundred people die in a plane crash, the impact on our collective psyche is huge.  We recall these crashes and they take on a noteworthiness that simply isn’t present when we’re focused on the myriad ways in which people die.

I have a theory on plane crashes.  I think they’re a big deal because human beings haven’t fully accepted the notion of flight.  Yes, most of us walk onto planes without giving much thought to crashes.  I don’t think, however, that we understand what keeps the planes in the sky; I know I don’t.  I know physics explains flight, but for me the whole deal is really an act of faith:  Smart people build these machines, they work on almost every occasion and I need or want to go somewhere.  Without an understanding of the mechanisms that keep these metal birds moving forward, however, when one of them falls out of the sky I know I am, at once, horrified and not the least bit surprised.

The other issue associated with flight is a lack of control.  We’re very controlling creatures, used to being in charge of stuff, whether that stuff is our automobiles, our children, the people we supervise at work, etc.  Yet, sitting in seat 20E, in a long, hollow metal tube that is suspended in the atmosphere, eight miles high, stuck between two large people, not able to turn on my phone, not able to grab a hunk of cheese from the refrigerator and not able to use the facilities–that “stay in your seat” light is on–it should surprise no one that I don’t believe I control anything!  The lack of control creates anxiety and, with it, fear.

Second, there’s the matter of the targets and, in particular, the World Trade Center. Americans experienced the bombing of the Alfred P. Murrah Federal Building in Oklahoma City on April 19, 1995, but this building was not a familiar site like the Twin Towers.  Yes, Americans were saddened by the event, but the impact did not seem greater than many other tragic situations.  Watching familiar landmarks fall, however, was exceptional.  (I know, I know, the number of deaths in Oklahoma City was less by a factor of almost 20, and that was surely another factor, but I still think the nature of the targets played a significant role.)

Third, Timothy McVey was one of us.  White.  American.  A soldier.  Yes, he went wrong, way wrong, and that is certainly a scary proposition, but he also valued life enough that he tried to get away.  An awful man, but someone we can relate to.  On the other hand, 9/11 involved this crowd from the Middle East, dark-skinned men from far away who pray to a different God and die for their cause.  After 9/11 Osama Bin Laden told a reporter: “We love death. The U.S. loves life. That is the big difference between us.”  Strange and much, much scarier!

Fourth, we’re more than a little bit spoiled.  We haven’t had a war on our shores since the Civil War, which ended 136 years before September 11.  Terrorism affected the rest of the globe, including the major capitals of the world’s democracies, long before it reached New York City, Washington, D.C. and the empty field in Pennsylvania.  For example, and by way of example only (as there are many, many more incidents not reported here, and what has happened in Israel is not mentioned), London had IRA bombings and shootings, along with Islamist bombings on December 26, 1983 and July 26, 1994.  Bombings in the Buenos Aires Jewish community killed 29 (and injured hundreds more) on March 17, 1992 and killed another 85 (and injured hundreds more) on July 18, 1994.  Almost 1000 people were killed and injured in a series of car bombings in Mumbai on March 12, 1993.  Ignoring the first attack on the World Trade Center in 1993 (which simply did not get our attention), most Americans have never experienced an attack on our shores.  Even Pearl Harbor was different.  The Naval facility was thousands of miles from the United States, in a territory that many Americans had to find on a map.  And, of course, almost all of those who died were sailors, people trained to be in harm’s way, as opposed to the brokers at Cantor Fitzgerald who woke up every morning in New Jersey, prepared to do battle only with the commuter trains and the bond and equity markets.  [On December 7, 1941, 2350 Americans lost their lives.  Sixty eight were civilians.  On September 11, 2001, Cantor Fitzgerald lost 658 employees.]

Finally, we had an administration in 2001 that was predisposed to make 9/11 a big deal! In a post-9/11, pre-Iraq war conversation on February 22, 2003 in Crawford, Texas, between President George W. Bush and Spanish Prime Minister José María Aznar and others, there was the following exchange:

    Aznar:  The only thing that worries me about you is your optimism.

    Bush:  I am an optimist, because I believe that I'm right.  I'm at peace with myself.  It's up to us to face a serious threat to peace.

The public does not remember well the fact that the Bush presidency was foundering in the summer of 2001, locked into a battle over stem cell research.  President Bush had promised to oppose any federal funding for stem cell research, a position championed by anti-abortion conservatives.  During the summer of 2001 the President said the federal funding issue would be resolved during his August 2001 vacation.  The decision–to permit funding, but only as to 60 existing lines–was announced in a televised speech on August 9, 2001.  On August 10, Counselor to the President Karen Hughes told an interviewer:

    Several people told [the President], ‘This may be the most important decision of your presidency,’ or, ‘This is one of the most important decisions you will make.  This has more ramifications than almost anything else you will do as president.’ A number of people made that point to him.  

By the way, it was during this vacation that President Bush received the August 6, 2001 President’s Daily Brief, mentioning that Osama Bin Laden was determined to attack the United States.  His immediate response was to tell the briefer:  “All right.  You've covered your ass, now.”

“Big” (and helpful to the President’s goals) was important to the Administration, and viewing an event through the “it’s big” prism will surely make it nothing less than epochal.  President Bush had campaigned on a promise that his economic plans would not depend on the use of Social Security income to fund governmental operations.  He even promised to establish a contingency fund for the purpose of protecting Social Security.  For decades the government used Social Security receipts–the 12.4% of a portion of wages that you and your employer send the government–to fund deficits and had the Social Security Administration issue debt instruments that the government would have to repay in later years.  In fact, when in President Clinton’s last two years in office the government ran surpluses critics argued that those surpluses still depended on the general fund using some Social Security income.

By the summer of 2001, barely eight months into the Bush presidency, tax cuts and a poor economy forced the Bush Administration to consider using Social Security income for general purposes.  The President rejiggered his promise, adding as special conditions for using Social Security income a recession, war or national emergency.  By the fall, with the recession, the war in Afghanistan and 9/11, he told Mitch Daniels, the Director of the Office of Management and Budget, that “he’d hit the trifecta” and, tastelessly and for the purpose of getting laughs, he later used the line to entertain Republican party big-wigs during fundraisers.

There are also many reports, not seriously disputed, that as soon after the 9/11 attacks as the evening of September 11, the Vice President and others were focused on attacking Iraq, despite the absence of any evidence that Iraq was involved with the attacks.  Again, the attacks served several purposes and, because they did, the Administration has no reason to downplay their significance.

The administration also saw a situation that lent itself to the goal of increasing the power of the President.  Vice President Cheney had long focused on the need for an Imperial Presidency–my words, not his–after so much power was allegedly lost as a result of Watergate, the CIA scandals in the 1970s and other mishaps occurring between the Nixon and Clinton Administrations.  In The Terror Presidency Professor Jack Goldsmith observed, about the President, the Vice President and the lawyers who advised them, that

    [t]hey shared a commitment to expanding presidential power that they had long been anxious to implement.  It is not right to say, as some have done, that these men took advantage of the 9/11 attacks to implement a radical pro-President agenda.  But their unusual conception of presidential prerogative influenced everything they did to meet the post-9/11 threat.

So, knowing what we now know, how could this horrific event ever be something less than what it became?  We’ll never know, but it’s not an exercise in futility to consider a world in which the events of 9/11 were handled differently.  What if our leaders started by, first, acknowledging just how lucky our country had been, having avoided the terrorists who had attacked most of the civilized world for so many years? What if our leaders adopted a slogan first put forward in 1939 in England, and told us to “Keep Calm and Carry On”?  What if, quietly, our leaders put into place programs to protect us and left the baggage–using the 9/11 attack to boost the Republican party’s electoral prospects and the power of the Presidency as an institution–behind?  What if, instead of making the central focus of our lives the clash between good and evil, our leaders had focused our nation on making itself energy independent and ready to meet the economic challenges of a new century? [As an aside, and without attributing bad or dishonest motives–for all of my harsh talk about certain political leaders, I believe they generally act in a manner consistent with their perception of what will best serve our nation–can anyone imagine President Bush and Vice President Cheney, oil men for many years,  appreciating how reducing our dependence on oil might benefit the country.  Ya, ya, I know all about the foreign oil thing, which goes like “if we produced more, we wouldn’t need Muslim oil.” In global markets, however, oil is fungible, which means any producer, anywhere, will sell to the buyer who pays the highest price and any buyer, anywhere, buys at the cheapest available price.  So, “drill, baby drill” may lower prices–more supply does that–but it does not determine from whom we buy our oil or, without our quickly finding and developing vast quantities of oil, allow us to stop buying from anyone.  Furthermore, without a carbon tax to reduce usage, any price reduction would simply increase usage, as energy use increases when the unit cost drops, and decreases when the unit cost increases.  Bottom line, a national “drill, baby drill” policy simply allows our nation to depend on oil for more years and, when available quantities decrease, makes us more dependent on foreign oil and less able to transition to alternative energy products.]

If we adopted a strategy that said “one incident can’t defeat us or change us,” might we not be stronger today.  Certainly, no one can ignore the pain and suffering associated with the sudden loss of husbands, wives, mothers, fathers, sons and daughters.  But, when we let a bunch of “dead-enders” control our national policy, we do not serve our own interests!  Frankly, and simply, we’re better than all that!

Sunday, August 14, 2011

Job Creators, Taxes and Regulatory Reform = Poppycock

Lately we've been treated to lectures about job creators, the people who will get us out of the fix we're in by creating the millions of jobs we need to employ the millions of people who aren't working.  Republicans claim, as necessary elements for job creation, lower taxes and the elimination of regulations that limit business activity.  Right or wrong, or as Stephen Colbert poses the question, Yahweh or No Way?

No way, in a big way!  No one WANTS to pay higher taxes, and no one WANTS to be told he or she cannot do this or that!!!  So it's easy to come up with arguments for lowering taxes and eliminating regulations.  And yes, it's certainly true that the tax code is very complicated and fundamentally irrational, and that governmental regulations and the way in which they sometimes get enforced often seem nonsensical.  Frustrating, yes, but interfering with the hiring or workers, and responsible for much or all of the current employment crisis? 

Here's the point:  I have represented business owners for 30 years, and have been a "job creator"--yes, attorneys do employ people*--for most of those years.  I have never, not once, seen anyone make an employment decision based on tax rates or governmental regulations.  To hire or not hire depends on one thing only, to wit:  Does the customer base demand enough goods or services to warrant the expense associated with hiring someone?  Nothing much more to it than that, and I've never once heard a client or one of my partners say, "We could hire Joe or Jane, but that 28% marginal tax rate is a killer," or "Gee, if the Arizona Supreme Court would just lighten up the disciplining of lawyers [I work in a highly regulated industry] we could hire some more people."  Simply, no one makes these statements.

Claiming lower taxes and less regulation equals more jobs serves the desires of those who make the claims, but there is no basis for thinking lower taxes or fewer regulations will produce more customers, and it's "more customers" that matter when it comes to hiring decisions.  So, poppycock and No Way!!!

*I was in a meeting several years ago, and a rather arrogant man asked me what I could possibly know about making a payroll.  I guess he knew very little about the legal services industry!

Friday, July 29, 2011

The Balanced Budget Amendment Fallacy

Not much, if anything, would be worse for all of us than a balanced budget amendment. Never mind how you feel about government, taxes and spending. Forget about the politics. Simply, the effing thing can't work.

Budgets are devices that allow people to plan. In government-speak, however, a balanced budget law mandates that an entity not spend more than it collects. Fine! Anyone who lacks credit knows all about not spending more than what's in the till. (Can you spell "Got any spare change?") So what's wrong with telling government it cannot spend more than it has?  Lots, if what you're doing involves more than simply expressing the notion that borrowing lots of money you don't have may not be a hot idea!

Most governmental bodies budget for fiscal years, whether they run from July to June or November to October. A few budget for two years at a time, but let's stick with the more common approach. Suppose a governmental body thinks it will collect $2 trillion per year. That money comes from taxes, fees, income from national parks, etc. Smart people estimate the revenues by making assumptions. No problem so far, but if $2 trillions is the estimate, planners should not plan for more than $2 trillion in expenditures. Still no real problem. Truly, and I'm pretty liberal! Congress and the President will have to suck it up and tell people they can't have this or that, and they will need to raise tax rates on the most financially successful Americans to reach equilibrium, but none of that should seem impossible? Really! Go back to the 1990s and study up a bit. President Bill Clinton and Democrats in Congress, with no help from Republicans on the income side and some more than gentle prodding on the spending side, pulled it off, and for more than a moment or two. So, to those who are really after less borrowing, an amendment to the venerated Constitution need not pass the Senate and House by two-thirds majorities, and need not be ratified by the legislatures of 38 states.

If a Constitutional amendment need not be passed to accomplish the worthy goal of borrowing less over a long period of time, what's the problem with passing one? It's really very simple:  When the government adopts a budget, it makes educated guesses about income and expenditures. In a $16 trillion economy, how likely is it that all of those numbers will end up spot-on? Not very!!! (How close do you get to estimating how much you'll spend during a vacation day at the beach?) And no one knows, for the year, how things will turn out until the year ends. Forecasting lets the people in charge make corrections along the way, but if we're talking about the federal government, just exactly how does that work. "Revenues are off this month, so close down the FAA; if things pick up, it can reopen next month." "That hurricane last week was a doozy. No health care payments for awhile."  Etc.

Governments cannot function without a cushion to smooth things out. And, when any enterprises lacks an adequate cushion, it loses its ability to make good judgments and often its costs increase. Laying people off and rehiring them is expensive and, in many instances, will result in revenue losses. (When the Republicans shut down the FAA last week, the government stopped collecting airline taxes--the airlines, in the main, are pocketing those sums--and airport projects have stalled. When they start again, damaged equipment will need to be replaced, work will need to redone, etc.)

That all sounds pretty bad, and I've spared you the bad examples, like not maintaining the military, not paying Social Security or Medicare bills, and stuff like that there. But there's more, and this is the really bad part. Who will decide, if revenues do not cover appropriated expenditures, who gets paid? The Amendment says nothing about this issue, except for provisions that allow the Amendment to be ignored if a declaration of war is in effect, or--or is it and, as the Amendment is ambiguous--when the country is involved in a military conflict. Presumably, only the courts can resolve these issues. Congress cannot act, and the President has no power. It's hard to imagine the House of Representatives, with a Republican majority, wanting the hated, unelected, undemocratic autocracy that is the federal judiciary deciding how money should be spent. Who else, though? The gang of this or that many? Some Congressman who knows it should be this way or that? (One friend of mine suggested across the board cuts. So we'll have a federal judiciary on half-pay, a plan that violates the Constitution. Prisons half-staffed. One pill per day, so old people will die, but not as quickly. Really?)

People are frustrated, and the comment I hear most often is "at least they're trying something." F for effort, for often the best solution is "don't do something, just stand there." The nation's problems can be solved, but the solution requires an acknowledgment that the problems are not simple, that they are long in the making and, therefore, will take years to solve, and that we all have to be part of the solution, not just "those lazy-ass people who are sponging off of ME!"

The Balanced Budget Amendment is a lazy, poorly thought-out attempt to solve a problem, so that its authors and proponents can kick some ass and feel good about themselves.

Monday, July 4, 2011

Lessons From Highway Driving

I get most of the highway driving duty in my family. I guess we're a pretty traditional trio, and within our milieu driving long distances is "men's work."  We never go very far:  Round trips to Phoenix are the norm, and there's a very occasional excursion to San Diego or Orange County. Thank goodness!

As a young driver I learned a few rules of the road. One that stuck was "stay to the right." Drive in the right lane on the highway, move to the left lane to pass and, then, move back to the right lane. Simple and sensible! And the law, as well, as it is set forth in Title 28, Section 721, Arizona Revised Statutes.

So why do so many people, mostly in Arizona, place their cars in the left lane and leave them there? My wife says it's random, but her theory falls apart when the facts confront her. At any given moment there may be a line of 10-20 vehicles in the left lane and, in the right lane, there's us, three or four pokey-ass semi-trucks, maybe a pickup truck loaded up with everything a family may own and perhaps, a really old car with an even older driver.

So what's the answer. I'm pretty sure I know, but I thought I'd test my theory and, perhaps, generate some commentary on this frustrating aspect of life.

I think the American psyche, writ larger than usual in Arizona circa 2011, explains the lawbreaking behavior. If you're an Arizona citizen--there's actually no such thing, as citizenship is a national concept, while residency is a state-law thing--you have a God-given right to be certain no one can or will move ahead of you in the line, even if that means everyone is driving at about 58 miles per hour. Here in the Grand Canyon State, our people are committed to the notion that if working together will let us all arrive at our destinations more quickly, and if being ahead of the other guy means we're all on the road a while longer, Choice No. 2 is the right choice and the other choice is for Obama-loving Socialists! None of that "village" stuff we got from Madame Secretary in her prior life, no sirree. That's for lib'ruls!

And the real lesson:  Jane should be our new highway driver! Nothing will change the behavior of our fellow travelers, but when she gets a dose of their driving habits, there will be peace in the valley!!!

Saturday, June 18, 2011

A Father's Day Thought

I'm reading The Social Animal by David Brooks. (Yes, that one!) It's sort of a work of fiction about an imaginary couple and, so far, their son. I've followed the relationship between Julia and Rob and have observed their son Harold from birth through, so far, his senior year in high school. Throughout, Mr. Brooks provides a ton of information about how people relate to one another and, in the process, learn and love.

So yesterday, I'm sharing with my wife how much success in life depends on the bonds we have with parents, other relatives, teachers, etc. Jane asked, if that's so, how do we scale up when so many people don't have these relationships in the right doses in their lives? A very good and very fair question, and one I pondered during my 90-second sojourn into the convenience store to buy a bottle of iced tea while we were hurrying to the movie.

The answer was evident as I opened the car door. We--Americans--do too much on the "one size fits all" plan. We make rules, we fund programs and we measure results. When we don't get the results we expect, we blame someone and move on to the next approach or, as often as not, to the next problem. Never mind the fact that there may never be a reason to believe our approaches might work; that's how we roll! (Congress is judged by how much it spends on an issue. Thus, people can blame Congress for not supporting health care for seniors because Medicare reform eliminated $500 billion of wasteful spending. Better, perhaps, to waste the $500 billion over 10 years and prove to old folks that you're on their side?) We have a template for addressing problems, and that's that and that's all!

Of course, the other element we cannot ignore is that fact that the problems many people deal with simply don't affect the powerful, wealthy, achieving class. Our elites go to schools where teachers can give their students the attention they need. The powerful among us are not holding down two and three jobs, so they have the time--and money--to enrich their children's lives. These people, when someone is ill, do not have to pass on mortgage payments to buy medicine. Thus, the power class can take comfort in the fact that their children learned in public schools and assume others are lazy or dumb. Etc.

None of what I've written will shock most anyone who knows me. That said, the epiphany for me was the fact that as we ignore our problems we are destroying our future, and that it's not only about money. Our children need us, mindful of their mental, physical AND emotional development, if we want them to be successful. Yes, we need to focus more financial resources on our people and their needs, but we cannot buy solutions. We get solutions when we invest ourselves in others!!!

Happy Father's Day 

Sunday, May 29, 2011

Creative Thinking About Healthcare

Here's an interesting perspective on a significant problem with our health care delivery system. In our "free market" system it's hard to imagine the concept ever being implemented, but the notion is worth considering.
Why Medical School Should be Free

Lower Tax Rates = More Jobs?

I’ve been an employer for about 30 years. “But you’re an attorney,” you say. “Yes, of course I am, but I’ve always had a secretary, and the firms with which I have been affiliated have had associates, contract attorneys, legal assistants, bookkeepers, files clerks, etc.” So, directly and indirectly, I’ve been employing people for three decades.

My practice focuses on business and real estate issues. My clients are employers, large and small, in many, many different industries.  I’ve represented my clients in times good and bad, and often talk with them about employment issues.

My point? Never, not once, have I decided to hire someone because I–or my firm–had extra money lying around. And never, not once, has a client of mine told me he or she hired someone because they had some extra money in the bank.

We–people who hire employees–hire them when we have work for them and think we will earn more money on account of the work they do. No mystery here; it’s really that simple!

So I get a little nutty when I hear about the Republicans’ job creation scheme. Lower marginal tax rates for the highest earners, they claim, and small business owners will have more money and, thereafter, start hiring. Rubbish, and here’s why:

Assume I own a business. I have employees.  We generate gross revenue of $500,000, and I net $250,000 after paying all expenses. My income tax bill (federal) is about $45,000, leaving me with after-tax income of $205,000.

Now, assume all of the same facts, but change the highest marginal tax rate on my income from its current 33% to 25%. When the math is done, I’ll have an extra $10,000 in my pocket. Cool, but the extra money gives me no reason to hire someone else. After-tax income of $205,000 or $215,000 changes nothing about how I run my business, as we’re still focused on the sweet spot, where I am maximizing revenue and minimizing expenses.

I know, I know, if lots of people all have an extra $10,000, they’ll buy more stuff and maybe, just maybe, they’ll buy it from me. Then, I’ll need to hire more people because demand for what I sell will actually increase.

True, but what if I decide to save the $10,000, or use it to pay off debt? In fact, with an income of $250,000 there’s not much I need. Maybe I don’t appreciate the consumer culture–I, of course, don’t have a credit line of $500,000 at Tiffany, like a certain “regular guy” who’s running for President–but the notion that, somehow, high-earners who pay less to the government will spend their tax savings and cause employers to hire people is just as silly as the old supply-side canard that if we lower tax rates enough tax revenues will increase. There aren’t that many high-earners, and there’s only so much “stuff” we can buy.

If people want lower tax rates, fine. Let’s be honest, though, about two things: First, lower rates means government collects less, which means government must borrow or do less. And, second, putting extra money in people’s pockets does not cause employers to hire more workers unless the extra money increases demand, which won’t likely happen if we focus on demand generated by our highest earners.

Note: The opinions offered here are mine, and mine alone, although they happen to be supported by the Congressional Budget Office and lots of other groups that know this stuff much better than I do.

Thursday, January 27, 2011

A Little Truth, Part 1

A Little Truth, Part 1, is the first post of what I hope are several more, identifying falsehoods in our discourse that don't get challenged.  I hope you enjoy these brief encounters with reality, that they make you more critical thinkers and better citizens, and that you tell your friends.

So, it's a given that people live longer than they used to and, therefore, the United States of America must raise the retirement age for Social Security to save us from ourselves.  Right?  No, wrong, although I'm sure those people who argue for increasing the retirement age will quibble with my characterization of their main argument in support of their position.  To them I say, get your own damn blog!

So, wrong?  Why?  Let's stick with white males, only because I am one and, surprise, the life expectancy tables start with white males. A boy born in 1850 would be expected to live, on average, for 38.3 years. A boy born in 1950 would, on average, be expected to live for 67.55 years, almost 30 years longer. That's a lot of extra years.  Hmmm.  Still wrong?  Yes.

Let's look at how long 1850 boy, if he lived to be 50 years old, would be expected to live.  20.76 more years, all the way until 1920.  And 1950 boy in 2000, when he turns 50?  He'd be expected to live for another 28.2 years.  So over 100 years the average 50 years old's life expectancy lengthened by less than an eight years.

To recap, at birth lives lengthened by almost 30 years over a century, while at 50 years old the same century only gave us middle-aged white guys an extra eight years.  Why the discrepancy?  That's easy; it's all about surviving childbirth.  When a generation lives longer lives than its predecessor generations, but its older people's life expectancies are not significantly greater, mathematics tells us it's all about people dying before they get older.

What does all of this have to do with the Social Security retirement age?  Soon after Social Security came into being in the mid-1930s, 60 year old men were expected to live for about 15 years when they retired.  And now, 75 years later?  About 20 years.  Not very much longer, and certainly nothing worthy of "people are living longer, so we have to raise the retirement age."  I'm no expert on Social Security, but I do know this:  When you talk about people living longer in the context of Social Security, overall life expectancy matters not at all!  Instead, it's about how long people will live once they receive benefits.  And the little truth is that over the past 75 years, retirees aren't living all that much longer.

So, when you hear noise about people living longer, find out who the people are who are living longer, how much longer they're living, and ask yourself, Does this matter?

Sunday, January 16, 2011

Random Thoughts On The Tucson Tragedy

I've been quiet until now. "Mostly quiet, " to be totally truthful. We did have a dinner party on January 8--the food was ready and the friends close, so we saw little reason to cancel--and, at about 9:30 and with a snoot full of wine in me, I answered the phone. A reporter from JTA, an international Jewish news service, was calling from Washington, wanting a referral for an article he was writing about the shooting. (Long story about why he was calling me.) I told him I'd get him Jonathan Rothschild's number in the morning. Jonathan is my law partner, a dedicated Democrat, an active member of the Jewish community (and, most likely, the next Mayor of Tucson.) I must have said more than "I'll get you Jonathan's number in the morning," however, as the story that was released on Monday identified me as a Tucson-area lawyer (right) and a Democratic Party activist (huh), and quoted me thusly:  “You have a vice-presidential candidate for a major party who runs ads with targets saying ‘remove Gabby Giffords’ and a young man with issues. You're going to spend a long time convincing me it doesn't have something to do with it.” (My partner was more temperate, but he spoke with the reporter in the morning!)

I promised random thoughts. First one. If you've met Congresswoman Giffords, she's your friend. I've met a fair number of politicians over the years, but never one like Gabby. No pretense, and lots of fun and funny. (And she must have a photographic memory for faces and names.) Plenty smart and strong, but I've never seen her proving her smarts by putting someone down or building herself up. Just a really nice person. (BTW, it takes a certain amount of confidence to be a young woman in what is still a man's world, slight in stature, and call yourself, and let others call you, Gabby!)

Big deal? Yes, as I believe Gabby's personality plays a significant role in our reaction to the horrid events. Of course, I can't be proved right or wrong, but if Tucson was represented by someone who more closely fits "central casting" for a Member of Congress, our community's reaction might be different. (Nothing about Judge John Roll, the other prominent victim, changes this theory. Another exceptional person, totally approachable and friendly, albeit in a way very different from Gabby's.)

Second one. About the criticism of the memorial service:  Get over it, critics. Everyone mourns differently. The Right Wing owns this tragedy no more than it owned 9/11 (despite its claims to the contrary), and if the service at McKale Center on Wednesday didn't suit someone's taste, all he or she had to do was leave or, more likely, turn off the television set. Yes, if weird is a synonym for unfamiliar, the opening by Dr. Carlos Gonzales was weird. Of course, weird is not a synonym for unfamiliar! Dr. Gonzales is an American with a non-Anglo Christian heritage--like so many people in Tucson, Arizona--and, like Christians, Jews, Moslems and others, he follows a tradition that he knows. That he shared it with tens of millions is very cool. That a few people found this weird--yes, you, Brit Hume, among others--is very sad.

Third one. About the tone, and all that. I heard no public official blame the shooter any less because of the intemperance we've all experienced over the past two years. (Yes, the Sheriff of Pima County is a public official--and not a very liberal one at that--and no, he did no such thing. Read what he said!) One group in this country has gotten very good at taking what other say, amping up the words and, then, screaming about the unfairness of it all. In my workaday world we call this a "straw man argument." Throw something out there, blow it down and call it a day! It's crap in a courtroom, and it's crap on cable, too.

On the same issue, I am reminded of Hamlet and "The lady doth protest too much, methinks." Yes, campaign is a political term with origins in the language of war. Yes, Democrats have run ads with bullseyes. Yes, sometimes people associated with Daily Kos and other liberal blogs forget every mother's adage:  "If you don't have something nice to say, be quiet."

Agreed, politics is a tough game. But there's a difference between a bullseye and what's seen through a rifle scope. (And no, Sarah Palin, the surveyor's scope bit won't sell!) And when a candidate in Florida shoots at a target with with the initials DWS (for Congresswoman Debbie Wasserman Schultz), that's not OK. Nor is candidate Jesse Kelly holding an event that gets promoted in this way:

Get on Target for Victory in November
Help remove Gabrielle Giffords from office
Shoot a fully automatic M16 with Jesse Kelly

It wasn't OK when it happened, and it can't be OK after January 8, 2011. We're all better than this! Really, we are! And as for Daily Kos, does the Far Right really want to compare some blogger with many of its elected leaders and its propagandists. I mean really, some guy posts something and you all want to liken him to Glenn or Rush or Newt or Sarah? (In passing, on the Jesse Kelly event, who gets off on shooting an M16? I'm sure I'd feel like a fool, hanging out with a bunch of guys and being all macho with guns!)

Fourth one. Last thought. The Tea Party crowd swears by the Constitution, but I cannot recall another election cycle in which we heard more chatter about amending the Constitution, all of it offered by Tea Party candidates. They suggest doing away with the 16th and 17th Amendments (taxing authority and direct election of Senators, respectively), the 21st Amendment (which repealed the 18th Amendment, which instituted Prohibition), and those portions of the 14th Amendment that make people citizens if they're born here and subject to our jurisdiction when they're born. For a crowd that thinks the Constitution is Biblical in its import, they seem to have issues!

I have an issue, too. My issue is the 2nd Amendment. Why is it so sacrosanct? In fact, courts have routinely allowed for reasonable restrictions on the right to bear arms, but with the National Rifle Association in control of state legislatures, Congress and the U.S. Supreme Court, the notion that any legislative body would adopt the most minimal of restrictions seems unimaginable. Yet, we have a problem that seems obvious:  More guns than any other developed nation and more gun deaths. We can't fix the problem because of the 2nd Amendment, so we need to repeal the 2nd Amendment. Fat chance, of course, but why is the 2nd Amendment not worthy of thought, when those who swear most loudly their adherence to the Constitution want so badly to rewrite it?     

I could say much more, about so many other things, but I think I've said all I need to say, save one thing. Be kind to your children, your spouse, your friends and others. If we all learned anything from what happened last week, we now know a quick trip to the grocery store, a visit with a friend or any other daily activity can turn everyone's world upside down.   

Saturday, January 15, 2011

Don't Sell Us Out!!

I met with a client not long ago and heard a story I can't let go of. My client's business interfaces with the federal government. One of his employees failed to comply with a notice requirement associated with a regulation. A screw-up, absolutely, and a violation of a federal regulation, you bet! That all said, the violation was insignificant and, when it was discovered, my client's people self-reported the violation. What followed was Kafka-esque, and only ended with the payment of a very, very large fine. The fine bore no relationship to the harm caused by the violation. (X times nothing, with nothing representing the harm, will always equal nothing.) I imagine my client could have fought the assessed penalty, but the business depends on a positive relationship with the government. Good sense said, Pay the man! Good sense prevailed.

Several years ago another client had a problem with a different federal agency. (The problem related to a  signature not being notarized on an administrative appeal. For want of the notarization, the appeal would have been granted, according to the agency.) Not so dependent on the good graces of the government, this client had me sue the federal government to avoid a six-figure penalty. A very nice fellow from Washington, DC defended the suit by filing a motion to dismiss. Lots of blather in the motion about the need for compliance with laws and all that, and about courts not interfering with administrative regulations. I gave as good as I got and, finally, we had a hearing on the motion. The judge (the late John Roll) asked the Washington lawyer--he flew out to Tucson for this hearing--to address anything not addressed in  his memorandum. He couldn't and, after fumbling around for a while, Judge Roll asked me to speak. I started to explain why my client had a right to have the court test the propriety of the penalty, whereupon Judge Roll said:  "I agree." He also suggested, from the bench, that we discuss a resolution.

The case settled for about $10,000 a few days later. When I spoke with the lawyer after we reached an agreement, I asked him about the regulation, as he was the lawyer for the government who was tasked with enforcement. He said the agency had promulgated the regulation and was giving it a "test drive." I asked him about his success rate. "Not so good," he said. "I'll bet," I thought.

Government has the power to solve problems for real people. In fact, many problems our society faces, slogans and buzz words aside, can only be solved by the federal government. So, when I hear about nonsense like the fine my client was (effectively) forced to pay, and when I have to file a lawsuit to avoid a ridiculously large penalty being assessed because someone forgot to carefully read some instructions, I ask myself, How does the government expect those of us who believe government is a force for good expect us to sell that position to others? How can I tell my clients they ought to believe government can be a positive force in our society when the federal government takes their money, and only takes it because it can?

There are millions of people like me who believe government makes people's lives better, but we also know government works best when people believe it can solve more problems than it creates. So, government, be smart whenever you can be. Focus on long term impacts. Make friends, not enemies. You'll be more effective, and we'll all  be better off.