Libby gets nothing and likes it

Even if you believe that Scooter Libby was wronged (though he was convicted) or that the investigation of the Valerie Plame leak was wrong (though it was ordered by Ashcroft) Bush’s commutation of his prison term is phony. Bush said he “respects’ the jury’s verdict but that Libby’s sentence was “excessive.” Never mind that the sentence was imposed by a Republican judge and could have been appealed. If that’s the case, why not commute Libby’s sentence after he has served half or a quarter of his time or a single month? Wouldn’t that show more respect for the jury and the law, and still show mercy?

As for the large fine, who can doubt that the tab will be picked up by friends of Cheney, or Cheney himself, as a small down payment for favors granted and future favors expected.

A Plan for Barry Bonds

Barry Bonds is taking a lot of heat, most of it unjustified. Even if he had retired before his then-glorious-now-notorious 73-home run season, he would have been a first-ballot hall-of-famer. Now he is reviled and hated (not only because of steroid allegations, but mostly because of them). Bonds stands on the precipice of hitting his 756th home run, breaking the record of Henry Aaron, who broke the even more celebrated record of Babe Ruth. What if Bonds hit his 754th homer and quit—announced his retirement out of respect of Aaron and in deference to those who accuse him of wrong. Everyone would know he could have done it. And he would be forever remembered for a dignified gesture, erasing a career of boorish acts. It would be an asterisk in reverse.

Bloomberg's Electoral Math

Mike Bloomberg’s departure from the Republican Party—convenient for a while, but no longer—sets the stage for his presidential bid. Of course, no third party or independent candidate has ever won the presidency. Only Teddy Roosevelt, a former president, has ever come close and that was in 1912.

But Bloomberg has a shot. The first and most obvious reason is that with a personal fortune tagged at anywhere from $5 billion to $20 billion, Bloomberg could outspend either party by writing himself a check for $500 million or $1 billion and not even notice the money was gone. This is how he became mayor—though if it was not for 9/11, Mark Green would have won in 2001. Even in Manhattan, it is possible to live off the interest of just $4 billion.

The real interesting question is what he could do with all that money. Ross Perot, for all his 19% of the popular vote, was not close to winning a single electoral vote. But he spent only $65 million. The key is not to win a large share of the popular vote, but a large enough share to win some electoral votes.

In the last two presidential elections, the winner scored just a thin margin of the electoral votes—Bush had 15 to spare in 2004. If the race between the major party candidates is similarly close in 2008, Bloomberg would need to win just a state or two to deny anyone else a majority in the Electoral College. If no one wins a majority, under the Constitution, the new House of Representative would pick the president.

For Bloomberg to win the House’s support, he’d certainly need a plurality of the popular and electoral vote. His charm, record, and media budget will have to take care of the former. Bloomberg could rack up 181 electoral votes (a plurality of 540) by winning California, New York, Ohio, Pennsylvania, Florida, Michigan, Wisconsin and Washington—that’s a total of 199. These are either liberal states, or big swing states where the parties are neck and neck. It could happen.

Is this the end of Tony?

With just one episode left, there seems insufficient time for the Sopranos to wrap things up. Tony could get killed. That’s the quickest way and it seems more than possible now that Phil Leotardo has put a contract on his head and that the Lupertazzis have killed Bobby Bacala and (almost) Silvio. But I still think it’s too easy (and not just because the producers want to leave open the chance for a movie sequel).

LKA thinks that Dr. Melfi firing Tony as a patient is a signal to us that we should also lose faith in Tony’s humanity. Maybe. But I disagree for two reasons. First, murderer and adulterer though he may be, Tony has always been the hero of the show and essentially a sympathetic figure. For the show to end by saying that Tony was a bastard all along would, in essence, say the audience has wasted its time and sympathy on a monster. I don’t think that David Chase holds that view now or ever. I also think he would want to undermine the show’s premise in its final weeks.

I also think that Dr. Melfi’s turning against Tony is wrong and hypocritical. It has never been her role to reform Tony or to get him to stop his criminal ways. No, she takes her patient as she finds him, and tries to make him a healthier version of himself. After all, the doctors at the hospital know who Tony is, and no one says they should refuse to operate to save his life after he has been shot (ditto for Christopher and Phil). The studies now being bandied about by Melfi’s fellow psychiatrists all seem to be based on the role of a prison shrink whose role it would be to make the convicts into better citizens. That is just not Melfi’s job, and she would know that. (I did think the bit about him ripping up the magazine was pretty hilarious in this regard.) After all, Johnny Sack was a killer, too, and he was treated for his cancer by a world famous oncologist—and this was after his conviction and imprisonment.

One might compare the beginning of “Analyze This”, where Billy Crystal’s psychologist character tries to refuse treatment to Robert DeNiro’s mob boss. “What am I supposed to do, make you a happy, well adjusted gangster?” he asks. In the end, he comes to like DeNiro, and he helps him. In the same way, Melfi has always liked Tony, with the full knowledge that he had people murdered on a regular basis.

I must concede that there has been no advancement toward my theory that the show will end with AJ being arrested and him giving up Tony (except that AJ is out of the hospital and that Tony roughed him up a bit). But I am still going with it. One terrific way to end: AJ gets arrested. He is facing 20 years in jail—hate crimes, racketeering, assault, attempted murder on Junior. He agrees—or is merely asked—to testify against Tony. But meanwhile, Tony cannot be found. He is up there sitting in the attic, slowly going mad, and the show ends with doubt about whether he will give himself up to help his son, or kill himself, or get killed. (Interestingly, Phil was also in his attic when he refused to see Tony when Tony came to his door—he’s a bit nuts as well.)

One of the great things about the Sopranos is that Chase doesn’t feel the need to put a bow on things. It can be messy, like life, with no neat endings. Every season has ended that way—maybe the whole series will end untidily as well. By the same token, every season has ended with the focus on Tony’s nuclear family. If the show ends with him, Carmela and the kids finally breaking apart—over AJ especially—that is the way it could really wrap up.

Whatever happens, this has been a fantastic season, maybe the best ever. However it ends works for me.

I do not recall

Everybody is up in arms about poor Alberto Gonzalez. It's partly about how he let politics subvert the Justice Department, partly about how he seems to have lied about what he did, and partly about how he can't seem to remember what happened. Reports note that Alberto testified he could not recall 45 times at one recent congressional session.

In this total recall failure, Alberto has nothing on former Mayor Giuliani and NYC TLC Chairman Matthew Daus. When I deposed Giuliani in Padberg et al v. McGrath-McKechnie et al, Giuliani said testified he could not recall 99 times-- in a three-hour deposition. Click here for a transcript of the deposition.

In a three-hour deposition in Nnebe et al v. Daus et al, Matthew Daus testified he could not recall 85 times, including many times as to events in the last year. Aberto is a piker by comparison.

More on the Padberg case

Chase on Terror

This season's Sopranos contains an element that has been little discussed but is just terrific: a satire on the war on terror. Every so often, FBI Agent Harris and his partner come around to ask Tony is he has any information about possible terrorists at the ports. Tony, though it's technically ratting, is eager to bank goodwill, so he complies, giving the agents the names of the only two Arabs he knows. At first, he doesn't even know their names-- all he knows is they used to hang around at the Bada Bing--but he gets them from Christopher, now dead.

The agents are all too happy to pursue this non-lead. They later show Tony pictures of the pair and say they are possible suspects for "financing." This could mean anything, of course. Even Tony knows it, repeating "possible" back to the agents. And as the tired agents slink away, they remark that they don't even know if the possible suspects are in the country. So it goes in the war on terror.

Meanwhile, Tony has committed murder, aggravated assault, environmental crimes, conspiracy to hijack. His wife has conspired to bribe a building inspector and his son has committed aggravated assault and a hate crime. Stll these agents, who never managed to arrest Tony, are looking the other way at possible "finance" violations.

AJ again

My theory that Tony's son AJ will cause his final downfall is gaining traction. Tim Noah writes in Slate:

We've discussed in the past how A.J., one of the few characters on The Sopranos who is not a murderer, is nonetheless the least sympathetic character in the series. He's spoiled, he's stupid, he's narcissistic, he's a whiner, and he's mean. But maybe not as mean as we thought. He seems genuinely horrified when Jason Gervase and his thug pals beat up a black bicyclist who crashes into Jason's car door. (Needless to say, the Italians call the bicyclist something a good deal less civil than black.) The violence and hatred that A.J. is witnessing with this new crowd is escalating, and he can't take it. "Why can't we all just get along?" A.J. tells his shrink, echoing Rodney King. Is series creator David Chase rendering A.J. more sympathetic so that we'll miss him when he gets killed, the outcome you suggest? Perhaps. But I prefer your alternative notion that, instead of dying, A.J. may kill someone. Or, being A.J., that he will witness a murder.

Here's how I see it going. The cops nab A.J., and he immediately confesses to being an accessory. The district attorney prepares to lock the kid up for years. But there is one way A.J. could get his sentence shortened. Tony could confess to two or three of the many murders the cops suspect him of ordering or committing. "Look, Tony, we know your kid isn't a criminal. He isn't the one who should do hard time. You are." Carmela and Tony fight bitterly over this proposed deal. Tony says A.J. can beat this rap. Carmela is horrified that Tony is willing to sacrifice his son to save his own skin. "You are a murderer, Tony, and if you won't tell them, I will!" The words are too much for Tony to bear. He pummels Carmela with his fists, really beats her up, for the first time in his life. (Unlike a certain recently departed HBO chief I could name, Tony has never assaulted a female.) Bruised and bleeding, Carmela calls the cops. They arrive, and Tony realizes he has no home left to defend. He confesses to three murders to save A.J. to whatever extent he can. The price turns out to be not only Tony's confession, but also Tony ratting out the whole gang—Silvio, Paulie, Bobby, Hesh, Janice, maybe even Uncle Junior. The only Soprano left unscathed is Meadow, who heads off to medical school in a daze, leaving Carmela, black and blue, alone in the house. Carmela's cherished delusion of sustainable mob-funded affluence is dashed. She will lose her house, she has already lost her husband and son, and Meadow may never again want to admit she even has a family. Goodbye, Bloomies; hello, Filene's Basement. Fade to black.

I agree, but as far as the cops or the feds will be concerned AJ is no inncocent. He has committed three serious felonies-- the acid-on-foot incident, the attempt on Junior, and, most recently, the hate crime against the Somali cyclist. No accessory, AJ struck at least one blow in each case. He could be liable on some 3 strikes theory.

And I think Tony won't fight it. He'll agree to go away to save AJ. It may even be his idea. Tony has always justified every sin by saying he is providing for or prtecting his family. In this he is the typical suburbanite whoe buys a Hummer or a McMansion on the grounds that "it's good for the kids" when, in fact, it's what the parents want. But Tony's redeeming feature, I think, is he really believe it. Thus Toby will be be the hero AND get away from the life that has long tormented him.

I also don't think he'll take the gang down with him. Snitches rat out higher-ups, not subordinate. He may rat out Phil.

I also don' think AJ is unsympathetic. Just pathetic.

Itty bitty conflicts of interest

The Times just ran a big story about potential conflicts of interest among psychiatrists who prescribe psycho-pharameceuticals, mainly to children. Psychiatrists, Children and Drug Industry’s Role (5/10/07)

The drug companies make payments to doctors who give lectures or do studies, and then precsribe the drugs.

While some of the payments in the article are substantial, most are quite small, the average being about $2000. The scale raises the questions, can docs be swayed for a few grand. The answer is yes-- even if the docs don't know it.

The Times quotes Dr. Steven E. Hyman, the provost of Harvard University and former director of the National Institute of Mental Health, who says: "There’s an irony that psychiatrists ask patients to have insights into themselves, but we don’t connect the wires in our own lives about how money is affecting our profession and putting our patients at risk.”

I have some experienec in this question in the administrative law area. In the Padberg case, I retained Prof. George Loewenstein of Carnegie Mellon University, perhaps the world's leading expert in conflicts of interest. In a report filed in in the case, he wrote:

When decision makers receive benefits or even small gifts from interested parties, their judgments are subject to an unconscious and unintentional self-serving bias, even when they try to remain objective. When individuals have a stake in reaching a particular conclusion, they weigh arguments in a biased fashion that favors a particular conclusion. As much as they may try, individuals have proven unable to achieve neutrality or objectivity when they have a personal interest in arriving at a specific conclusion. Because bias induced by monetary interests is unconscious and unintentional, there is little hope in controlling it when monetary interests exist.

This case involved the bias not of doctors, but of administrataive law judges. But the principle is the same.

For more on Padberg, see Background Brief, Case File, and my Brief on the Corruption of the Judges.

Is this the end of Tony?

My prediction for the Sopranos denouement—that A.J.’s crisis will spell Tony’s demise (see 4/23/07 entry) is looking better. In this week’s episode, A.J. becomes involved with some college bookies. On a lark (their’s, not his) they kidnap one of their bettors, beat him and pour acid on his foot. A.J. isn’t just along for the ride; he’s driving the car. The victim has been introduced the “Anthony Soprano Jr.” as if he is a member of the gang. Thus, the feds can nail A.J. on serious federal crimes, including perhaps a RICO count. The sand and beautiful part is that Tony put A.J. up to it, insisting he go to a stripper party—and thinking even after the fact that A.J. doing so was a good idea. After all, it got the depressed and newly medicated scion of the family out of the house. Now when the feds grab A.J. the pressure will be on for him to give up Tony, and Tony can only tell him to do just that. Thus Tony will fall by his own hand. A perfect demise: surprising and inevitable at once.

Bennet Da Bozo

Now that Paul Wolfowitz has hired Bob Bennett his real troubles may begin. Bennet, you may recall, reperesented Bill Clinton in the Paula Jones case. Not only did he lose the case, a bungled deposition led directy to Clinton's impreachment. One theory may be that Bennett, the brother of the right wing former secretary of education, screwed Clinton up on purpose. At least now Bennett is working for a Reoublican who deserves a worse fate that forced resignation from the World Bank.

Are we really safer with Bush's lap dog?

Rudy Giuliani, it appears, is claiming that only a Repulican can keep us safe from terror: He said: "If a Democrat is elected president in 2008, America will be at risk for another terrorist attack on the scale of Sept. 11, 2001... Never ever again will this country ever be on defense waiting for (terrorists) to attack us if I have anything to say about it. And make no mistake, the Democrats want to put us back on defense!"

What a fraud.

9/11 happened on Bush's watch. His administration failed to observe the warning signs. He promoted Condi Rice who failed personally. So why should we feel safe with another Republican, especially one like Rudy, who played Bush's lap dog.

We should always recall that the hero Rudy ran away from the Trade Center. The heros that day were running in the opposite direction.

Halberstam

I ran into the great David Halbsertam once in journalism school and a few times after. In a short lecture, he told us how to write a book. Here is my account http://www.dackman.homestead.com/files/Halberstam.htm (reproduced below):


A Grunt, not a Star, Halberstam Reveals the Secret of His Success

By DAN ACKMAN

Pathfinding war correspondent and celebrated author David Halbertstam told Journalism School students on April 5 [2000] that he remains driven not by awards or glory, but by the "infantry work" of reporting and writing.
Halberstam, author of The PowersThat Be, The Fifties, The Breaks of the Game and 13 other books, attributed his success not to his innate ability, but to his doggedness, his curiosity, and to his willingness to follow his heart. "My success came more from being a grunt than it did from being a star," he told students in James Stewart's Narrative Writing class.
Coming out of college in the mid '50s, Halberstam said he wasn't a top student (though he did go to Harvard, referring to it first as a "school in Boston"), but he knew what he wanted, which was to be a journalist.
As a managing editor of The Crimson, he said he could have gotten a job (as a copy boy) on The New York Times or as a reporter for the Boston Globe. But he sensed that in the wake of Brown vs. The Board of Education, the big story would be about race and civil rights, so he went south. Halberstam took a job on a small newspaper in Mississippi, switching to a larger one in Tennessee about a year later.
This was the beginning of what he called his "12-year apprenticeship" the last six of which were with The Times, mostly as a foreign correspondent. Coming out of college, he says he knew he was good-- "I was quick," he said-- but serving those years in Tennessee made him better. "By the time I got to the Times, I was really ready to go," he said.
The Times sent him to the Congo and later to Vietnam, where he did the reporting which led to The Best and the Brightest, his classic book on the war, and to a fabled career as an author and in long-form magazine writing. He has alternated between books on politics and government and books on sports, most recently one about basketball star Michael Jordan.
His huge success in this field, Halberstam said, is based on his "passion to know." A good book starts with a question, he said. The Best and The Brightest, for instance, started with this one: if the officials in the Kennedy and Johnson administration were so smart and so capable, how did they lead the nation to a war that was such a disaster?
The key, he said, is to pick a question interesting enough to sustain the reporter for two or three years, one which will later sustain the reader as well. It is also critical to find a way to dramatize that question and to "go places where the cameras can't go."
He says he keeps a mental list of people to see, often starting with peripheral figures and circling in to the main subject or subjects. Along the way his knowledge deepens and his questions keep getting sharper. The last question at every interview is a always the same: "Who else should I see?"
Conducting two interviews per day, Halberstam compiles massive quantities of notes, which he later speaks into a tape recorder. He says his one luxury is that he pays someone else to transcribe the notes.
Halberstam said that early in life he probably suffered from a form of Attention Deficit Disorder which steered him away from other fields. He knew his destiny was to be a reporter, so "I knew I couldn't screw up." So far, he seems to have kept the screw-ups to a minimum, and he has been awarded with a two Pulitzer Prizes and roughly 18 honorary degrees. He has sold a fair number of books along the way.
But it's the life that sustains him: "And it has been a terrific life. Each book was a university. That's the best part of it, not the honorary degrees, growing as a person. I've been paid to learn for 45 years.... I find it thrilling."

Sopranos, decline and fall

So far this season has been terrific. On the other hand there has been no progress toward my predicted ending. The last season has emphasized the demise of the Mafia: Junior's degeneration; the moronic violence of the NYC family; Christopher's mining his experience for showbiz; Tony's paranoia. But there has been almost nothing about Tony's nuclear family. This is odd because at the end of the day, the show has always been about Tony and his wife and kids.

As gangster, Tony is a survivor, mostly based on lock-- the rats who die just before they can testify, even of natural causes, like Ray, to say nothing of the ones they kill, like Pussy or Adriana. But I still think that amidst the decline and chaos, Tony will be felled by the failures of own household, specifically his idiot son AJ, though they have barely figures in the show at all this season-- so far.

My prediction for the Sopranos

I predict the last season of the Sopranos will turn on Tony's relationship with A.J. Tony's insipid son will get himself in trouble either through his relationship with his new Hispanic girlfriend (who undoubtedly knows who A.J.'s father is and may seek to benefit from the connection) or by trying to trade on the family name to complete some criminal transaction of his own. Because he is weak and incompetent, A.J. will get caught. The feds will try to get A.J. to rat out Tony. A.J. will resist, but ultimately, Tony himself will tell A.J. to take the deal. This Tony will sacrifice himself for his family. This willingness to sacrifice, at the end of the day, is Tony's justification for all the crimes and violence that he has perpetrated. By going to jail for A,J., Tony will finally get out of the mob life that he has long ceased to enjoy. He will also prove to himself and others what he has always said: that he was doing it to provide for and protect his wife and kids all along.

Executive Privilege Primer

Executive privilege (also known as “deliberative process privilege” protects confidential pre-decisional communications such as recommendations, draft documents, proposals, suggestions, and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency. The privilege is based on the notion that an assurance of confidentiality will promote “candid discussion between officials.” As the Supreme Court has stated, “The point is not to protect Government secrecy pure and simple.” DOI v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 9 (U.S. 2001). The deliberative process privilege shields only those communications designed to assist an agency policy-maker in arriving at a decision and which are actually related to the policy formulation process.

For a particular document or communication to be protected by the privilege, the agency must demonstrate that the document is both “predecisional” and “deliberative.” The document must be predecisional, that is, prepared in order to assist an agency policy-maker in arriving at a decision. Second, the document must be deliberative, that is, actually related to the process by which policies are formulated. The privilege does not cover procedures or implementation strategy or individual cases (including personnel decisions). It covers policy.

To demonstrate that a document is predecisional, an agency must: (i) pinpoint the specific decision to which the document correlates, (ii) establish that its author prepared the document for the purpose of assisting the agency official charged with making the agency decision, and (iii) verify that the document precedes, in temporal sequence, the decision to which it relates.

Documents that are purely factual are not protected by executive privilege. Mere instructions to subordinate officials as to the implementation of policy are not privileged either. Just because a document satisfies these requirements, however, it does not mean that the deliberative process privilege bars its disclosure. An agency may be required to disclose a document otherwise entitled to protection if the agency has chosen expressly to adopt or incorporate by reference a memorandum previously covered by the privilege in a final rule or opinion.
As with the attorney-client privilege, it is the burden of the party raising the deliberative process privilege to demonstrate its applicability. Finally, the deliberative process does not protect third-party documents submitted in connection with an agency decision, unless the third party is acting an agent of the government. The privilege is waived under certain circumstances if the documents have been disclosed to a third party that is not within the agency.

The Justice Department and the TLC

The emerging Justice Department scandal regarding the politicized firing of U.S. Attorneys is reminiscent of the Taxi & Limousine Commission, both in terms of Operation Refusal and the TLC's summary suspensions.

My class action lawsuit about a Giuliani's Operation Refusal-- suspending the licenses of cab drivers illegally based on phony, politicized charges (together with the attempt to revoke those licenses). This was obviously a big-deal for the cabbies, but a yawn for even the local beat reporters. This was despite the politicization of the agency and the corruption of the judges.

The cabbies had no real defense, and only the class action rules allowed them to sue after the fact. When the city was required to pay $7 million in damages, it got a little ink, but not much.

The lesson is that small injustices are very easy to hide.

Paul Krugman makes this point very well.

My slogan for New Jersey

My Slogan for New Jersey

New Jersey: Gateway to America


May 7, 2006
New Jersey's Slogan Goes From New to Stale
By THE ASSOCIATED PRESS
The Associated Press
TRENTON, May 6 — New Jersey officials have said the new state slogan, "Come See for Yourself," would highlight the Garden State's true beauty.
It turns out, however, that at least one other state already had that idea.
State tourism officials said they canned the slogan after it failed to pass legal muster because some states, including West Virginia, have used it in the past.
"We are proceeding without the slogan," Karen Wolfe, a spokeswoman for the state's Commerce, Economic Growth and Tourism Commission, was quoted as saying in The Press of Atlantic City's Saturday issue. "We will revisit the next steps at the end of the year."
Former Gov. Richard J. Codey unveiled the slogan with great fanfare at a January news conference, just days before he left office.
Mr. Codey, who remains State Senate president, said at the time that the state's catchphrase "should hint at our true beauty."
The slogan was the top choice among 11,227 telephone and online votes cast by residents for five final entries in a statewide contest.
But at an annual tourism conference in Cape May County more than a week ago, the slogan was absent from state promotional materials.
Tourism officials say West Virginia used the phrase in some previous promotions, but now uses "West Virginia: Wild and Wonderful."
The slogan resulted from Mr. Codey's appeal in October for ideas after he rejected a marketing company's proposal for which the state paid about $250,000. He said that slogan, "New Jersey: We'll Win You Over," was negative and reminded him of his own self-deprecating pitch when he asked girls out on dates.


As I have lived in New Jersey for more than two years now, I feel I have the perfect state slogan: Gateway to America.

It’s catchy and happens to be true, as NJ is the a stronghold of immigrants, both now and historically, and is the state closest to Ellis Island. It is also is the state through which visitors to New York City must pass, more often than not, if they want to reach the American mainland.

Ackman quoted by Krugman...

... alas not by name...

NEW YORK TIMES
March 24, 2006
Op-Ed Columnist
Letter to the Secretary
By PAUL KRUGMAN
Dear John Snow, secretary of the Treasury:

I'm glad that you've started talking about income inequality, which in recent years has reached levels not seen since before World War II. But if you want to be credible on the subject, you need to make some changes in your approach.

First, you shouldn't claim, as you seemed to earlier this week, that there's anything meaningful about the decline in some measures of inequality between 2000 and 2003. Every economist realizes that, as The Washington Post put it, "much of the decline in inequality during that period reflected the popping of the stock market bubble," which led to a large but temporary fall in the incomes of the richest Americans.

We don't have detailed data for more recent years yet, but the available indicators suggest that after 2003, incomes at the top and the overall level of inequality came roaring back. That surge in inequality explains why, despite your best efforts to talk up the economic numbers, most Americans are unhappy with the Bush economy.

I find it helpful to illustrate what's going on with a hypothetical example: say 10 middle-class guys are sitting in a bar. Then the richest guy leaves, and Bill Gates walks in.

Because the richest guy in the bar is now much richer than before, the average income in the bar soars. But the income of the nine men who aren't Bill Gates hasn't increased, and no amount of repeating "But average income is up!" will convince them that they're better off.

Now think about what happened in 2004 (the figures for 2005 aren't in yet, but it was almost certainly more of the same). The economy grew reasonably fast in 2004, but most families saw little if any improvement in their financial situation.

Instead, a small fraction of the population got much, much richer. For example, Forbes tells us that the compensation of chief executives at the 500 largest corporations rose 54 percent in 2004. In effect, Bill Gates walked into the bar. Average income rose, but only because of rising incomes at the top.

Speaking of executive compensation, Mr. Snow, it hurts your credibility when you say, as you did in a recent interview, that soaring pay for top executives reflects their productivity and that we should "trust the marketplace." Executive pay isn't set in the marketplace; it's set by boards that the executives themselves appoint. And executives' pay often bears little relationship to their performance.

You yourself, as you must know, are often cited as an example. When you were appointed to your present job, Forbes pointed out that the performance of the company you had run, CSX, was "middling at best." Nonetheless, you were "by far the highest-paid chief in the industry."
[SEE: Snow's CSX Was An Also-Ran by Dan Ackman; SEE ALSO Daily Kos

And the business careers of other prominent members of the administration, including the president and vice president, seem to demonstrate the truth of the adage that it's not what you know, it's who you know. So my advice on the question of executive pay is: don't go there.

Finally, you should stop denying that the Bush tax cuts favor the wealthy. I know that administration number-crunchers have produced calculations purporting to show that the tax cuts were tilted toward the middle class. But using the right measure — the effect of the tax cuts on after-tax income — the bias toward the haves and have-mores is unmistakable.

According to the nonpartisan Tax Policy Center, once the Bush tax cuts are fully phased in, they will raise the after-tax income of middle-income families by 2.3 percent. But they will raise the after-tax income of people like yourself, with incomes of more than $1 million, by 7.3 percent.

And those calculations don't take into account the indirect effects of tax cuts. If the tax cuts are made permanent, they'll eventually have to be offset by large spending cuts. In practical terms, that means cuts where the money is: in Social Security and Medicare benefits. Since middle-income Americans will feel the brunt of these cuts, yet received a relatively small tax break, they'll end up worse off. But the wealthy will be left considerably wealthier.

Of course, my suggestions about how to improve your credibility would force you to stop repeating administration talking points. But you're the secretary of the Treasury. Your job is to make economic policy, not to spout propaganda. Oh, wait.

Stung Cabbies Sting Back - Padberg v. McGrath-McKechnie

On March 6, 2006, on the eve of trial, the City of New York and its Taxi and Limousine Commission announced a settlement of a class action lawsuit brought by 500 cabbies concerning the TLC’s so-called “Operation Refusal.”



The cabbies alleged that the New York City Taxi and Limousine Commission, led by Rudolph Giuliani and its chairwoman Diane McGrath-McKechnie, suspended hack licenses unconstitutionally and revoked them illegally during the course of the TLC’s so-called “Operation Refusal,” the sting operation ordered by the mayor and the chairwoman in the wake of a highly publicized complaint by the actor Danny Glover.



The former mayor and the TLC pretended that cabbies whose licenses were suspended were acting out of “bigotry” or racial bias. Evidence unearthed during discovery proved that this claim was a con. The overwhelming majority of alleged service refusals – then and now – are based on destination and economics, not race. TLC officials, of course, were well aware of this fact.



The cabbies alleged that the revocation of their licenses violated city law, and that the policy was enacted illegally and in secret, without public notice or hearings of any kind. They also allege that McGrath-McKechnie pursued her scheme despite clear warnings that what she was doing is illegal.



The penalties were enforced by TLC judges, in the TLC’s own kangaroo court. That court was systemically biased against drivers, the cabbies allege. The judicial bias claim would have been the key issue for the jury, had the trial gone forward.



Of course, with the settlement, the trial will not go forward.



The settlement, though, is pretty good:



--Cabbies whose licenses were suspended will be paid $121.50 per day for the duration of their suspensions. About 500 cabbies were suspended and the average suspension lasted 62 days.



--Cabbies whose licenses were revoked will be paid an additional $26,000 each.



--The TLC will refund all fines paid during the course of Operation Refusal.



--The City will pay the cabbies attorneys’ fees and court costs.



The settlement received some press attention, both locally and nationally via the AP.



Here is a compendium of the coverage:







NEW YORK DAILY NEWS



Hacks pick up 7M in ride-bias battle





The city agreed yesterday to a $7 million settlement with more than 500 cabbies who charged their licenses were improperly suspended for refusing to pick up minority passengers.

A federal judge in Brooklyn had already ruled the policy of confiscating the hack licenses of medallion cab drivers without a hearing was unconstitutional.

After actor Danny Glover publicly complained in November 1999 that he had trouble hailing a cab because he's black, the NYPD launched a crackdown against drivers, using undercover cops trying to hail cabs.

"They threw out the Constitution so they could look good on a hot-button issue," said cabbies' lawyer Daniel Ackman.

Under the settlement, the city will pay drivers $121.50 for each day they were suspended and $26,000 to each driver whose license was revoked while the policy was in effect from November 1999 to April 2002.

"The settlement addresses an enforcement policy that was in place for a limited time nearly seven years ago," Taxi and Limousine Commission Chairman Matthew Daus said in a statement.

He noted that recent tests found a 97% driver-compliance rate in pickups.

John Marzulli






NEW YORK POST

'STUNG' HACKS WIN

By JEREMY OLSHAN

After letting the meters run for six years, the city yesterday agreed to settle a federal class-action lawsuit and pay 100 cabdrivers whose hack licenses were revoked during an aggressive sting operation.

The drivers were targeted as part of Operation Refusal, in which undercover agents posed as minority passengers trying to hail a cab.

Each driver will get $26,000 as part of the settlement.

The lawsuit accused the city's Taxi and Limousine Commission of removing their licenses without a hearing.

But that punishment is normally reserved only for a third offense. Another 500 drivers, whose licenses were suspended an average of 62 days, will receive $121.50 per day, making the total settlement worth $6.3 million.

Beginning in 1999, after actor Danny Glover complained about bias among cabbies, the penalty enforcement was changed to include instant revocation.

"A fair hearing was impossible, as the judges were hired, fired, and paid for by the TLC," said Daniel Ackman, attorney for the drivers.

Operation Refusal is still in effect, although the penalties are now fines for the first two offenses.






NEW YORK SUN

City To Settle Lawsuit Brought by Cab Drivers Caught in TLC Stings

By JOSEPH GOLDSTEIN - Staff Reporter of the Sun
March 7, 2006

The city will pay more than $6 million to settle a lawsuit brought by about 500 cab drivers who claim they were punished unfairly amid allegations they avoided black customers and refused fares.

Former and current cab drivers are represented in the class action lawsuit brought in U.S. District Court in Brooklyn yesterday. The settlement, which has yet to be filed with the court, comes six years after the city's Taxi and Limousine Commission expanded existing sting operations to identify drivers who were avoiding minority customers.

The legal complaint does not dispute that it is often difficult for black men to get a cab. It contends that the TLC courts stripped cab drivers of their constitutional rights.

"I would say there are some racial biases among cab drivers like there are among all people," the attorney representing the drivers, Daniel Ackman, told The New York Sun. "But they never proved anybody had a racial bias. They never attempted to prove it."

The cab drivers had their taxis impounded and their licenses pulled after they allegedly ignored black investigators posing as customers or refused to drive to specific destinations, the complaint accompanying the lawsuit states.

The power exercised by investigators who seized cabs and took licenses exceeded the penalties permitted by New York City law, the complaint states. And the courts of the Taxi and Limousine Commission were stacked against cab drivers, according to the complaint. The TLC legal department held sway over TLC-paid judges who ruled against cab drivers protesting their suspension, the complaint states.

Mr. Ackman estimates that only 15% of his clients were prosecuted in TLC courts after allegedly passing by a black investigator hailing a cab for a white investigator doing the same. The rest were prosecuted for other fare refusals.

The ongoing Taxi and Limousine Commission sting operation, called Operation Refusal, was expanded following a complaint by actor Danny Glover. Mr. Glover, who is black, filed a complaint in 1999 with the TLC, claiming he had difficulty in finding a ride in New York City. Mayor Giuliani, who is named as a defendant in the suit, lauded the operation, which promised at the time to cut down on the reputed racial biases of drivers.

A spokesman for the TLC, Allan Fromberg, declined to comment on the lawsuit except to convey a brief statement by current TLC Commissioner, Matthew Daus.

"The settlement addresses an enforcement policy that was in place for a limited time nearly seven years ago, and has no effect upon the TLC's successful refusal enforcement efforts which currently have 97% driver compliance," the statement said.

Neither Mr. Fromberg nor a spokeswoman for the New York City Law Department, Kate Ahlers, would discuss the terms or amount of the settlement.

Mr. Ackman said the agreement calls for about 100 drivers who had their licenses revoked to receive payments of $26,000. Those former drivers and another 400 would also receive $121.50 for each day their license was suspended before it was either revoked or returned. Mr. Ackman said the average suspension was 62 days.

The 26-year career of the lead plaintiff, John Padberg, ended quickly, over the course of three blocks in Queens. After noticing a woman hailing him from a full three blocks away, he passed a black man he hadn't noticed but who was signaling for a fare, Mr. Padberg told The New York Sun. After the woman identified herself as an investigator, he was forced to return home without his cab or license. He is now a limousine driver.



--------------------------------------------------------------------------------



THE NEW YORK TIMES



March 8, 2006

New York City to Pay Settlement to Taxi Drivers Accused of Bias
By THOMAS J. LUECK



CORRECTION APPENDED



A long legal fight over a city crackdown on cabdrivers, prompted by a black actor's 1999 complaint of racial bias, has ended in an agreement to pay about 500 cabbies whose licenses were suspended or revoked, lawyers on both sides of the case said yesterday.

Under the agreement, termed a "settlement in principle" by Paula Van Meter, a lawyer for the city, about $7 million from the city will go to the cabbies, who were penalized without having been granted hearings for showing bias toward passengers, refusing to take them to certain locations or other violations.

The cabbies were penalized by the Taxi and Limousine Commission from late 1999 through early 2002 under Operation Refusal, an enforcement tactic begun after the actor Danny Glover complained that five taxis had refused to stop for him because he is black. The accusation attracted national attention.

Operation Refusal remains in force, but a federal judge in Brooklyn ruled a year ago that the city had violated due process by suspending cabbies' hack licenses without first granting hearings. The settlement was reached on Monday in a class-action lawsuit filed on behalf of drivers who claimed financial damages.

Dan Ackman, a lawyer for the cabbies, said former Mayor Rudolph W. Giuliani; the former Taxi and Limousine Commission chairwoman, Diane McGrath-McKechnie; and the commission's current chairman, Matthew W. Daus, were named as defendants, and were expected to testify at a trial that had been scheduled to begin next Monday.

"The settlement addresses an enforcement policy that was in place for a limited time nearly seven years ago," Mr. Daus said, adding that agreement had no effect upon the taxi commission's current enforcement efforts. The agency continues to use about 200 staff officers, posing as civilians, who hail taxis and check for illegal refusals.

Under the settlement, Mr. Ackman said, about 500 drivers will receive $121.50 apiece for each day their licenses were suspended. About 100 of those drivers, whose licenses were revoked after the suspensions, will each receive an additional $26,000, and can apply for new licenses, he said.

Correction: March 10, 2006, Friday An article on Wednesday about a settlement between New York City and about 500 cabdrivers whose licenses were suspended or revoked during a crackdown on racial bias and other violations misstated the timing of a judge's ruling that the city had violated the cabbies' rights. It was in 2002, not a year ago.



Associated Press



NYC to Settle Suit Filed by Cab Drivers
By ELIZABETH LeSURE , 03.06.2006, 11:52 PM



The AP Story was picked up by The LA Times, The Washington Post, The Guardian, Newsday, The Philadelphia Daily News, The Houston Chronicle, The Seattle Post Intelligencer and other papers.



Hundreds of taxi drivers who were accused of discrimination and lost their driving privileges settled a class-action lawsuit against the city, their lawyer said Monday.

The cabbies' licenses were suspended or revoked as part of a crackdown on those who wouldn't pick up passengers because of their race, gender or other factors.

The city's effort began in November 1999 after "Lethal Weapon" actor Danny Glover filed a complaint with the Taxi & Limousine Commission because he was passed by several available taxis.

In the lawsuit, filed in 2000, attorney Dan Ackman argued that the drivers' licenses were seized and revoked without due process of the law and that the commission's taxi court was biased and unconstitutional.

A judge ruled in 2002 that the suspension policy was unconstitutional; additional allegations involving the taxi court and the revocation policy were set to go to trial on Monday before the settlement was reached, Ackman said.

The city's law department said it had "reached a settlement in principal" and was working to finalize the agreement. Ackman said the settlement must be approved by a federal judge.

Under the settlement, about 500 drivers each will get $121.50 for each day they were suspended, Ackman said. The suspensions averaged 62 days, he said.

About 100 drivers whose licenses were revoked after the suspensions will receive an additional $26,000 each and will be allowed to apply for new licenses, Ackman said.

The commission also will refund fines it collected from the drivers, he said.

Under the current Operation Refusal, drivers are issued summonses if they are accused of discrimination but are not penalized until after they appear in taxi court, the commission said.

"The settlement addresses an enforcement policy that was in place for a limited time nearly seven years ago and has no effect upon the TLC's successful refusal enforcement efforts," the commission's chairman, Matthew Daus, said in a statement.



1010 WINS Radio

Posted: Monday, 06 March 2006 10:27PM

NYC to Settle Cab Driver Discrimination Suit

NEW YORK (1010 WINS) -- The city has agreed to settle a class action lawsuit filed on behalf of hundreds of taxi drivers whose licenses were suspended or revoked as part of a crackdown on those who wouldn't pick up passengers because of their race.

The cabbies were penalized as part of an anti-discrimination effort that began in November 1999 after "Lethal Weapon'' actor Danny Glover, who is black, filed a complaint with the Taxi & Limousine Commission because he was passed by several available taxis.

Under the settlement, about 500 drivers each will get $121.50 for each day they were suspended, said their lawyer, Dan Ackman. The suspensions averaged 62 days, he said.

About 100 drivers whose licenses were revoked after the suspensions will receive an additional $26,000 each and will be allowed to apply for new licenses, Ackman said.

The TLC also will refund fines it collected from the drivers, he said.

In the lawsuit, filed in 2000, Ackman argued that the drivers' licenses were seized and revoked without due process of the law and that the TLC's taxi court was biased and unconstitutional.

A judge ruled in 2002 that the suspension policy was unconstitutional; additional allegations involving taxi court and the revocation policy were set to go to trial on Monday before the settlement was reached, Ackman said.

The drivers were suspended as part of an enhanced version of a program called Operation Refusal. During the crackdown, the city automatically suspended the licenses of drivers who were accused of discrimination before they appeared in taxi court to answer the charges.

The crackdown was aimed at drivers who did not pick up passengers based on their race or gender or refused to go to certain locations, usually in poor minority neighborhoods or areas outside Manhattan.

The lead plaintiff in the case was John Padberg, who was driving down Queens Boulevard when he was hailed by two undercover inspectors, a white woman and a black man. Padberg picked up the white woman, and when she asked him why he hadn't stopped for the black man he told her she had hailed him first, Ackman said.

About 86 percent of those who were suspended during the crackdown pleaded guilty or were convicted of the allegations against them, he said. Padberg was convicted.

Under the current Operation Refusal, drivers are issued summonses if they are accused of discrimination but are not penalized until after they appear in taxi court, the TLC said.

"The settlement addresses an enforcement policy that was in place for a limited time nearly seven years ago and has no effect upon the TLC's successful refusal enforcement efforts, which currently have 97 percent driver compliance,'' TLC chairman Matthew Daus said in a statement.

The city's law department said it had "reached a settlement in principal'' and was working to resolve the outstanding legal details and finalize the agreement. Ackman said the settlement must be approved by a judge in federal court in Brooklyn.

Glover has appeared in several movies, including all four "Lethal Weapons,'' ``Grand Canyon'' and ``The Color Purple.''





WNYC Radio

NYC Settles With Taxi Drivers
WNYC Newsroom

NEW YORK, NY, March 07, 2006 — New York City has agreed to settle a class action lawsuit filed for hundreds of taxi drivers whose licenses were suspended or revoked in a crackdown on cabbies who wouldn't pick up passengers because of their race.

The drivers lost their jobs as part of an anti-discrimination effort that began in 19-99 after actor Danny Glover filed a complaint with the Taxi & Limousine Commission because several taxis refused to stop for him.

The drivers' attorney argued that the sweep didn't allow drivers to answer charges made against them, denying them due process of the law. Under the settlement, drivers will be paid damages and those whose licenses were revoked will be allowed to apply for new ones.

From The New York Times - OP ED - 2/12/06

February 12, 2006
Op-Ed Contributor
The Price of Justice

By DAN ACKMAN

OVER the past several decades, the scope and clout of the city's administrative law courts have swelled to the point where there are now at least 500 administrative law judges scattered among a dozen agencies.

While the judges hear very different kinds of cases, many of them face a conflict of interest: they are supposed to make independent judgments about the agencies that pay them. Last year, a ballot measure to bring order to these courts was approved by city voters. It's a good start, but more needs to be done.

The administrative courts generally operate under the radar for two reasons: they can't send people to prison and most of the individual cases before them, from tax assessment appeals to parking summonses and health code citations, involve relatively modest fines.

But the stakes add up. According to a 2003 report by the Charter Revision Commission, which proposed the ballot measure, the courts levy more than $600 million in fines and fees a year. More important, the administrative courts have the power to suspend and revoke licenses, which means they can close businesses and wreck livelihoods. For workers and businesses licensed by the city — street vendors, taxi drivers, restaurants, grocery stores and dry cleaners among others — the courts wield tremendous power.

As a journalist and lawyer who has written about and litigated against the Taxi and Limousine Commission, I can attest to the power of its administrative judges.

I can also state without reservation that the taxi drivers I have represented have little confidence in the fairness of the commission's court. This is in large measure because its judges are hired by the commission, and can be fired or have their hours reduced at any time. In short, their paychecks depend on the commission.

The Taxi and Limousine Commission is not alone. The judges at the Department of Health and Mental Hygiene, for instance, also work directly for the agency.

Other administrative courts reside within larger agencies. The Environmental Control Board, for example, is part of the Department of Environmental Protection; the Parking Violations Bureau is overseen by the Department of Finance.

Regardless of the agency, the city's administrative judges have an incentive to serve their own interests, and not those of the public, for one glaring reason: they have no job security. They are not civil servants, have no term in office and no contractual rights. With few exceptions, they work on a part-time or per diem basis. When a judge's income depends on the goodwill of the prosecuting agency, it's too much to expect that he or she will hold the balance of justice clear and true.

The ballot measure that passed in November called on the city to impose its first "codes of professional conduct" on administrative judges. It's a good idea. But the measure gave little guidance as to what the code might include. And it said nothing about the way the judges are hired and how they are paid.

Spurred perhaps by the initiative, Mayor Michael Bloomberg has said he intends to appoint an administrative justice coordinator to work with him, the agency heads and the city's chief administrative law judge to review the entire administrative court system. This effort could lead to genuine reform. The chief administrative law judge, as it happens, works for the Office of Administrative Trials and Hearings, a distinct agency. Judges in this court are hired for five-year terms, serve full time and hear cases only from outside their agency.

Because its judges serve for fixed terms and are not part of the city's regulatory apparatus, this court can rightly boast of its status as independent. As the court says on its Web site, the independence "of the decision maker from the prosecuting agency invites a higher level of confidence in the fairness of the adjudicative process."

This is an example that the city's other administrative courts, prompted by the mayor and renewed public concern, would do well to follow.

Dan Ackman is a lawyer.