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What’s Real?

In Hollywood? In creation? In the legal profession? In the Recall? In Livingston, MT? And elsewhere.

10.3.03

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OUT OF IT
Re: The Washington Prowler's Clinton Connections:

The Lieberman staffer contends, "We're getting little traction out there [Hollywood Gore connections] right now because Clark is drawing on all of them."

"Right now?" He means to say, "To date, we were never able to parlay the supporters of the Gore 2000 run to the Lieberman 2004 campaign and now we never will."
-- Mark Hessey
Belmar, NJ

One appearance he won't be making is on Jay Leno's "Tonight Show." The NBC late night show invited Clark on, but advisers encouraged him to decline. "Leno is a Republican," says a former Clinton aide doing work in Washington for Clark on Capitol Hill....

This former Clinton aide must be a comic writer himself. Jay Leno a Republican? Why? Because he told Clinton jokes during the Monica crisis?

If Jay Leno is a Republican, then I'm Capt. James T. Kirk -- "beam me up Scotty"!
-- Greg Barnard
Franklin, TN

WHO MADE US?
Re: Hunter Baker's Unintelligent Designs on Academic Freedom and Stu Margrey's letter (under "Sad Science") in Reader Mail's Make Way for 'The Infiltrator':

I was interested in the conclusions reached by Stu Margrey in his letter regarding the subject of this e-mail.

While pondering the "unknowable" back in the early 50's during my days at Baylor University, the problem was put into perspective by a scientist from Oakridge Tenn. (whose name I have long since forgotten.) While speaking in a forum he challenged the students to consider whether they could accept some simple statements as truth. (l) The universe was created by God (he pointed out that to believe otherwise was "to believe that one could put the parts of a watch into a washing machine, turn it on and that eventually the watch would fall together"); (2) That, not being God, we could not know how He did it, but that it was enough to just know that He did; (3) That science could be used to discover the mysteries of how.

It may not be deep, and it certainly is not academic but it has been a bedrock on which my faith in God was built and has never wavered. Just know that He is and that He did it regardless of how He chose to do it. The rest is for him to know and us to try to find out.
-- Guy Merwyn Eiland
Port Angeles, WA

THE QUALITY OF NO MERCY
Re: R.H. Sager's The Guys in White:

Try to imagine how much better I feel now knowing that the Mickey D Idiot's settlement was reduced from an obnoxious $3 million to an obnoxious half a million. Either way, it's pretty darn good pay for being an idiot. Do I get to sue the contractor who made my house for banging my knee on the door jam? Give me a break. Sorry, but you won't get much sympathy from me for lawyers.
-- Bill Deady
Manchester, NH

My spleen just exploded. I shall consider suing Mr. Leon Silverman for causing injury to my temper, by his reckless and negligent expressions of arrogant opinion (as reported by R.H. Sager). His whining about some of the Bar's rotten apples being "outed" by Manhattan Institute makes me ill. And that suggestion that "second year associates" (e.g. newbies who just took the bar last year) make more than poor widdle federaw judges...Cheez Whiz! Big-city parochialism.

Full disclosure: Since January 1988 I have been, and a practicing attorney at law. Oh, yes, I'm a lawyer myself -- a "country" office practitioner. After fifteen years of law practice the highest taxable income I EVER made in my office in one year was about $50,000 (usually much less, supplemented somewhat by teaching law at the local college and by service in that proletarian organization known as the Army Reserve). In my splenetic opinion any lawyer who nets more than $100,000 a year ought to be shot out of hand, as being more concerned with lining his own pockets than with serving people and doing righteousness. By the way, I also hugely enjoy lawyer jokes, which the humorless Mr. Silverman would no doubt also disapprove. As a member of the Iowa State Bar, my view from inside the beast tells me that the Manhattan Institute has Trial Lawyers (Inc.) cold. As with any barrel, the Bar holds all too many rotten apples.

Indeed America does face problems with lawyers who practice as prideful predators (not humble servants), tearing down what better men have built in order to enlarge their pocketbooks. The "Trial Lawyers Inc." report, Mr. Sager notes, "makes the case that plaintiffs' attorneys operate as an industry -- with tremendous profits, their own trade publications, and even new product development..." Well put. I'm sure that at least the 87 of 200 billion dollars spent on lawsuit pursuit and defense is "wasted" (to support rich plaintiffs' attorneys, rich defense attorneys, and all the extra court bureaucracy that civil litigation produces).

Here are three BIG reasons why we lawyers got our country into this destructive legal morass:

1) Basic disrespect among society's elites (prominently including lawyers) for principles of right and wrong. (Anyone wonder why most courts and lawyers don't want the Ten Commandments around, reminding them of Higher Authority than themselves?)

2) Substitution of a principle of power -- "winning" at all costs, "losers" get stomped. Pursuit of "victory" for "victims" has led legislators, and much more often courts, to abolish many of the old common-law "checks and balances" on tort suits that existed back in 1950 (Manhattan Institute's comp year): "contributory negligence" (someone who was himself negligent in actions that produced his injury can't sue another negligent party), "assumption of risk," many of the old immunities (for charities, hospitals, family members, and the like)

3) Widespread and universal disregard of our constitutional limits on both federal and state governments, approved and fostered by the Supreme Court's infamous sellout to Franklin Roosevelt in 1937. (I do firmly agree that most of the federal-level tort revisions, while potentially useful to alleviate problems, do grossly violate federalism principles, which is why I don't support them).

I propose two practical ways of reducing tort litigation in this country. Both are quite achievable, given just a smidgen of political will.

1) Judges should stringently enforce the existing provisions in State and Federal Rules of Civil Procedure which provide for fining lawyers who bring frivolous claims. Making examples of some egregious offenders will deter many potential less-adventuresome attorneys ("anti-tobacco", "anti-gun" and "anti-fat" attorneys would make excellent and unsympathetic targets).

Even better is a step which Legislators can take even without judicial participation. Contrary to popular notion, most State legislatures are not full-time but part-time, and few are "dominated" by lawyers (here in Iowa, of 150 legislators only about 15 even have law degrees). Indeed, many citizen legislators distrust or even hate lawyers, as I learned while working in the Iowa State Senate during law school. Those lawmakers will have few qualms about taking action against "Trial Lawyers, Inc." (unless the Democratic Party openly prostitutes itself to defend its lawyers as it does abortionists).

2) Abolish the existing "American rule" for attorney fees in civil cases, which has been stretched to permit the so-called "contingent fee" (lawyer only collects a fee from his plaintiff client if he succeeds in obtaining *some kind of recovery from* a defendant). which big plaintiff lawyers use to extort money from defendants (who've been denied all those old common law defenses and statutory immunities which used to keep the greed in check). Once upon a time, the idea that an attorney and a client could effectively share ownership interest in a tort claim was a crime, called "champerty." Legislatures should outlaw the contingent fee.

Of course the lawyers who benefit will whine that "poor people won't have meaningful access to the courts!" And they'll get the courts to back them on grounds that "the legislature can't regulate the lawyers, that's the courts' job!" Bah, humbug. To overcome this diversion the Legislature can concurrently enact the fee rule which prevails in all other English common-law jurisdictions worldwide: the "English Rule" -- Loser Pays. The "English Rule" on fees provides that a judge may award a "reasonable fee" recovery to the attorney of any party (plaintiff or defendant) who has won a decision against the other party. We already have this rule in many claims, most notably "civil rights" claims, and it works just fine to attract legal talent to represent people. And all the blackmailed-settlement cases that plaintiffs' lawyers favor must then be brought AT THEIR OWN COST.

Take that, Mr. Silverman.

For temporary relief from ruptured spleen I supply readers a great lawyer joke told me by my fine (small-town lawyer) Congressman, Jim Nussle: "How many lawyers does it take to grease a combine? (grain harvester, for non-Midwesterners)? Only one -- if you feed him through real slow!"
-- David James Hanson
Hofmeyer & Hanson P.C.
Fayette, Iowa

MOVING ON
Re: Bill Croke's Old West and New in Livingston, Montana:

While I can enjoy Bill Croke's ramblings through the West, I do wish he would get his facts straight. His piece on Livingston, Montana, has all the appearance of being drawn from ancient memory.

First, let me address his claim that Livingston was founded in 1882 by James J. Hill's Northern Pacific Railroad. Hill at that time had nothing to do with the NP, which was being built by Jay Cooke, Henry Villard, and Frederick Billings. When the NP went bankrupt in the 90s, Hill got a piece of it, and finally won control in 1901, long after Livingston was founded.

It was an odd experience to see the names of writers who are no longer in Livingston. Novelists and screenwriters Tom McGuane and Gatz Hjortsberg moved out of Paradise Valley, south of Livingston, fifteen or twenty years ago and now live forty miles away. Novelist Peter Bowen left Livingston seven years ago. Hjortsberg, far from wearing a ponytail, cut it off several years ago. The Owl Bar, alleged as the hangout of Livingston writers, is an amiable place but hasn't been a writers' hangout for years. There are still a few writers in town, but the only ones of national reputation are Tim Cahill and Alston Chase.
-- Richard S. Wheeler

Bill Croke replies:
Well, Dick, I'm sorry I didn't conduct voluminous research into the history of Montana railroading. I think I'll apply for an NEH grant. Many writers live outside of Livingston now because, well, they have money and can afford to. They still come into town for groceries, horse feed, doctor's appointments, etc. The Owl Bar-Lounge-Casino (whatever you want to call it) is still home to those few writers who haven't bothered to sober up. I didn't know that Peter Bowen left town. Is he Wanted? As for Gatz Hjortsberg's recent haircut (probably the first since circa 1968), maybe he gets AARP discounts at his local barbershop nowadays.

Dick, I have a great idea for your next book. A comprehensive literary history of Livingston. That way, you could put yourself in it, and make up for that glaring omission in my recent piece (along with Alston Chase, Walter Kirn, Jamie Harrison, Doug Peacock, Andrea Barrett Peacock, Scott McMillion, Ben Williams -- there you go, Dick, I've written half the book for you -- along with any literary Gen-Xers and Hook-and-Bullet hacks I haven't heard of), which is, I believe, why I'm hearing from you again, and what has put the current burr under your saddle.

WINNING BY SWITCHING
Re: George Neumayr's Losing by Winning:

I'd like to address several points in your article, "Losing by Winning."

First of all, you, like McClintock, makes the mistake of thinking that the Republican party is a single vast ideologically homogenous unity. On every topic from abortion to zero-tolerance, they share identical opinions. This is not true. Many people are attracted to the Republican's fiscal policies, pull-yourself-up-by-your-bootstraps ideals, etc., but have different views on abortion or gun control or gay rights or the legalization of medical marijuana. A lot of times, these beliefs are affected by one's personal history. A gay Republican will be more likely to be in favor of gay rights. A Republican woman will be more likely to favor at least some access to abortion. Watching someone suffer through chemotherapy affects one's opinion of medical marijuana.

There are several things to consider about the current race. Yes, McClintock would win against Bustamante. This says more about Bustamante than McClintock. I am a registered Democrat. I grew up in Chicago, where the two- party system means the Irish Democrats and the non-Irish Democrats. I am a former employee of the Feminist Majority Foundation and member of LA Clinic Defense. I have marched on Washington (3000 miles away) in support of the right to abortion. But I would vote for McClintock over Bustamante. The opposing candidate would pretty much have to be Lyndon Larouche or Jesse Jackson before I would consider voting for Bustamante.

Arnold Schwarzenegger is fiscally a Republican. He pledges not to tax unless we suffer a terrorist attack or a natural disaster. He wants to limit spending, overhaul government, reduce committees, and everything a Republican wants to do.

McClintock says the same thing about finances -- without the disaster/attack exceptions, but he takes campaign money from the Indian Casinos PAC. (So did Bustamante and Davis.) Schwarzenegger thinks the casinos are undertaxed.

So it comes down to social policy. And, McClintock's policies on abortion scare me. I'm philosophically opposed to abortion, but my father was an emergency room physician in Illinois before abortion was legalized; he says illegal abortions were real, prevalent, and bloodbaths.

Here are some things that the Republicans should consider. Schwarzenegger is bringing people to the polls who have never voted before. These people may decide they like voting Republican. It is also bringing loyal Democrats (like me) out to vote Republican. Many of us may make a habit of it. And finally, the state needs help. To get it, the new governor is going to have to work with the Democratically controlled Assembly and Senate. Who is going to be better an consensus building, a centrist or someone on the right? (I note that McClintock doesn't have much history in the way of consensus building during his twenty years in office.) I want change in this state. I'm not going to vote for someone who will wind up as deadlocked as Clinton when his House and Senate were Republican-controlled.

The reality is that too many Californians are Democrats or liberals to put someone who toes the Republican party line in office. Unz may have won 1/3 of the primary vote in 1994, but we had closed primaries back then. He won approximately 1/9 of those who voted. (The data I used was for the gubernatorial primary election in 2002. Data for 1994 was not available online.) One-ninth of the population does not a governor make. So the question is, given the choice of nothing or something, are you going to take something? Or are you going to demand all, knowing that at least for now, you aren't going to get it?
-- Lauren Eve Pomerantz
lauren@teachspace.org

THIEVES STEEL
Re: John McGinnis's letter ("Creative Signs") in Reader Mail's Make Way for 'The Infiltrator':

As does Mr. McGinnis, I purchase and enjoy the music of independent, self-publishing bands. I'd recommend in particular to any readers www.velvetchain.com (shameless plug for friends).

And as does Mr. McGinnis, I know full well their work is being downloaded without compensation on any number of P2P sites, right alongside Aerosmith and Moby. Thieves steal. From anybody. That simple.

Yet Mr. McGinnis says the artist is to blame for a "marketing mistake" if he or she makes the available in a manner they are not compensated for. Downloaders, and the people who service them take that choice away from the artists. They deny the artist any control over access to their art. And that is the ultimate offense of downloaders.

There is no technical fix for morality. Downloaders steal because they can. It wouldn't matter how inexpensive you make it, or how simple, or how few songs you have to buy. If it isn't free, they'll steal it.
-- Richard McEnroe

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