Sneaking Suspicions

Archives--January 6-12, 2002 (Week 1)

Commentary from a practical perspective

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This page includes posts from the site's first week, January 6, 2002 through January 12, 2002, in the usual reverse order.

January 12, 2002


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'nuff said.

Update: YAY, EAGLES (31-9!)

January 11, 2002

Endrun Corporation goes bankrupt; political left blames Bush. In other news, dog bites man.

Will Vehrs, who knows a thing or two about business and government, gave a mild response in today’s Shoutin’ Cross the Potomac to the anticipatory screed about Enron by Brian Linse, an apparently excitable boy. Linse wondered aloud why libertarian and conservative bloggers thus far paid minimal attention to the story, at least as he perceived it. He then answered his own question by assuming their relative silence showed their defensive allegiance to the Bush administration. As he put it, "Are we Left Coasters the only ones who can smell this....?"

Well, no, Brian. Actually, the smell of this particular collection of business crimes and misdemeanors is fairly pungent throughout the country. And, except for its apparent scale, the story is neither all that new nor dominated by the money-grubbing of any single political party.

Chill out for a bit and watch, in particular the bankruptcy proceedings. The issues concerning fraud and violation of SEC, Treasury, and other agency regulations governing publicly-held corporations will probably overwhelm the stories about who received how much in donations, especially in the number of dollars involved.

Vehrs is right to point out that a large part of the story is just coming out, namely the loss and/or destruction of critical records by Enron’s outside auditors:

I don't know why this "scandal" is named after Enron. I say it's the Arthur Andersen LLP scandal. How could the Clinton Administration SEC have let Enron do all its financial chicanery that led to this disaster if not for the Enron auditors failing in the most basic due diligence?

Or, as Andrea Mitchell said on the Imus show this morning, "The dog ate my audit."

Let's not forget that Democrats also tapped into the Enron ATM. Matt Drudge pointed out with his flashback today to a 1997 Time story that Enron gave large sums to the Democrats just before the Clinton Administration issued a decision of great interest to the company. Drudge rightly called the company’s CEO a "master of political manipulation of both parties."

Enron wasn't the first business to see the advantages of spreading the cash, either. The Texas company simply followed the savvy tradition of Archer Daniels Midland and many others.

More evidence of bipartisan bedmaking will come out as the bankruptcy proceedings and criminal investigations follow their course. Unfortunately, some writers and politicians will seize the opportunity to argue that campaign contributions are the central problem.

Outright financial misdealings and fraud are just too boring for some folks, who need to attach a "gate" to every screw-up. Let the creditors’ lawyers and federal investigators do their thing, and we'll watch where all the pieces land.

January 10, 2002

Bitter Times

Martin Arnold of the New York Times attempted to make sense of the fact that so many books with a conservative viewpoint, particularly from one publisher, Regnery Books, managed to make it to the Times' bestseller list. This week, Bernard Goldberg's Bias: A CBS Insider Exposes How the Media Distort the News will make Number 1, which should speed the pulse of his close personal friend Dan Rather. Arnold noted:

It was published by Regnery, the country's leading publisher of conservative books and chief supplier of anti-Clinton titles . . . . Bill Clinton seems to be to Regnery what Mickey Mouse is to Disney. Barbara Olson's "Final Days" (Regnery), which discusses "the last, desperate abuses of power" of the Clinton White House, is No. 6. (Ms. Olson died on a hijacked airliner on Sept. 11.)

There’s something oddly sterile and flat about that last parenthetical remark. (Try this one, for example: "Senator Kennedy died in Los Angeles during the 1968 presidential campaign.")

Arnold's sentence makes it sound like her death was a routine event, no more unusual than a car crash.

Olson’s death on the plane that crashed into the Pentagon on September 11 was anything but routine. In addition, her brave attempts by cell phone to find ways to fight the hijackers are well known.

I realize that the main focus of Arnold's piece is neither Olson's book nor her personal story. Just the same, this one passage is jarring. It reads like someone at the Times, bitter about Olson’s attacks on Clinton, tried to diminish her by downplaying the circumstances of her untimely but heroic death.

January 9, 2002

Historians aren't the only ones worried about e-mail

Rob Morse' piece that Glenn Reynolds mentioned today raises some intriguing points about the hidden costs of electronic correspondence:

Ann Newhall runs the little-known National Historical Publications and Records Commission, which provides grants to nonfederal agencies to preserve historical records. "Our mandate is to preserve records, whether they were made with a quill pen or a computer," she said.

Currently, she is funding a major project to learn how to protect electronic records, "so if President Bush drafts a speech on a laptop, we'll have all drafts of it."

Lots of luck. The electronic age presents us with an archival nightmare. . . . We may be entering an even darker age for history if we lose our historically significant electrons.

Morse and Newhall are right to be concerned about electronic documents (although I think it’s far more likely that someone like David Frum is drafting the president’s speeches).

Here are just a few of the issues relating to e-mail, from my experience:

  • Government agency employees typically use their e-mail systems with gusto. Some are far smarter about their use than others.
  • Most e-mail meets state government standards for formal archiving, a fact which is a constant surprise to many of its users. Some state archive systems are further along in addressing this storage issue than others.
  • Most government e-mail is neither private nor privileged. Under freedom of information acts, most e-mails can be viewed by anyone with the inclination to file the request.
  • Many litigators in civil cases routinely hoover government e-mail files for information. It doesn't matter if the government is a party to the case, or just a "witness." The burden of review and retrieval is the same.
  • Too many people assume an air of easy familiarity when writing e-mail. They forget that e-mail should be treated like formal correspondence. If you didn’t want snide, obscene remarks to be printed by the local newspaper, you shouldn’t have written your e-mail messages that way.
  • One of the biggest long-term issues with e-mail from either a policy development or historical perspective is that once people realize that e-mail is discoverable in litigation or under FOIA, they usually become far more circumspect in committing their thoughts to electrons.
  • As Morse notes, for historians, this means that it will be far more difficult to trace the debates, considerations, and negotiations that led to a particular government action. Those interested in tracing the creative process leading to government policies face the same difficulty. It’s similar to the diary problem raised during the Clinton fiasco, only it's far more serious and widespread.

January 7, 2002

Cornel West and Jack Webb--Bad Rap

All the yammering about Dr. West and his new rap CD reminded me of one of the first rap performers in the American music industry. I refer, of course, to Jack Webb's stunning recital of "Try A Little Tenderness", preserved for all time on Rhino Records' Golden Throats--The Great Celebrity Sing Off.

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There are other obvious parallels.

Both gentlemen brought a distinctive speaking style to their audiences, well beyond their musical contributions. Both tried to bring a little something extra to their fans with these recordings. Both limited their actual singing as much as possible, an important point for which we should all be thankful.

No, really. We should.

January 7, 2002

Plagiarism--textual "deja vu all over again"*

I've read some of the various bloggers and full-time pundits concerning Steven Ambrose's recent difficulties. There's certainly a difference of opinion among Mickey Kaus, Josh Marshall, and Glenn Reynolds, not to mention Fred Barnes.

I think Ambrose's speedily admitted screw-up is a bit more serious than Reynolds, but not necessarily the felony that Kaus seems to think it was. It's a sure sign of carelessness at the very least. Still, Reynolds is correct that, at least as reported by Barnes, the copying was not so pervasive that it proves Ambrose was trying to pass off Childer's work as his own, the classic definition of plagiarism.

Perhaps the best punishment is to create a descriptive word that matches the miscreant to the wrong. In some circles in Delaware, for example, this sort of semi-plagiarizing is sometimes called Bidenizing. As Reynolds points out, the Senator's past problems with appropriation and attribution weren't exactly plagiarism episodes. They were stupid, however, especially for a politician, and therefore deserving ridicule. Biden's affinity for the wisdom first expressed by Neal Kinnock didn't keep him from being re-elected 6 years ago, and it's even more unlikely to prevent his re-election this fall. Not too many people around here will forget the incident, though, which may be punishment enough.

Perhaps we'll read sometime in the near future that another writer who's cribbed another author's words and phrases has "dipped into the Ambrosia a bit."

*attributed to Yogi Berra.

January 6, 2002

Loser-Pays in Government Lawsuits?

Glenn Reynolds posted an intriguing notion on January 5, suggesting that the government should pay the other side's attorney's fees if it loses in litigation. His discussion focused on criminal cases, but he also suggested the government should also pay attorney's fees if it loses in civil litigation.


If I was a cat, this issue would be catnip. Thus far I've written two e-mails to Glenn, and what follows is a revised version of what I sent him.

I'd be interested to watch the public reaction if the "loser-pays" principle was actually applied uniformly in cases involving governments. I've defended governments in lawsuits for over 20 years. I would love to have been able to collect attorney's fees in several of my winning cases. In two recent cases, for example, the plaintiffs sued my state agency client because they disagreed with a non-binding opinion it issued as part of a county's land-use decision-making process. My client simply should not have been sued in either of these cases.

Civil litigation rules permit attorney's fees against the loser under limited conditions, basically where the judge decides that the lawsuit was meritless or that the party continued the litigation after its lack of merit should have been obvious. Nonetheless, it's nearly impossible to recover the expense to the taxpayers of successfully defending government decisions in court, even in cases where these special rules apply. The courts (in Delaware at least) are extremely reluctant to apply these rules when a government's involved. For political reasons (it's a small state, after all) the government's themselves are sometimes reluctant to even try.

Even so, given the fact that people try to overcome a losing position in a policy dispute or legislative result by resort to litigation, it doesn't seem like false parallelism to suggest that sauce for the goose is sauce for the gander, if "loser-pays" is to be expanded beyond its current limits.

Under most conditions, taxpayers should rightly foot the bill when governments screw up. They can "recover" their expense in the next election, if they desire. Just the same, they should not have to foot the bill when some of their fellow taxpayers sue under conditions that are at best an attempt to achieve by undemocratic means what they were unable to achieve in a republican democracy.

Here are some other issues with Glenn's proposal, even if it was limited to criminal cases (Short biographical note: I prosecuted hundreds of criminal cases early in my career. It was in a municipal court, handling misdemeanors and all other charges up through preliminary hearings in felony cases. Most of the time I felt far more like an air traffic controller than an avenging angel.):

  • Let's not forget that the system's evidentiary presumptions and much of the case law on constitutional rights favors defendants. I'm fine with that, because the alternative is far more scary.
  • On the other hand, when a case is lost because the essential cop witness sleeps through after a midnight shift and misses the court appearance, wouldn't be rubbing salt into the public wound to make the state also pay full fees to the lucky defendant? That kind of screw up happens, and therefore sometimes guilty people go free. Should they also be paid their full fees under these kinds of circumstances?
  • Glenn suggested that we should consider "the enormous financial resources of the government...." Well, not always. In some court systems, the actual resources are not as much as you'd think for a given case. They're still far larger than the resources of most defendants, I agree, but the resource argument is not as compelling in practice as you might first think.
  • Glenn also referred to "market discipline." How would market discipline apply to criminal defense attorneys, if the fee ordered to be paid by the government wasn't linked to the fees paid the public defenders, or at least to the rates paid the counsel who are appointed when the PD's Office has a conflict?
  • I don't have any real problem with the Federal law Glenn mentioned that permits such fee awards when it can be shown the government was over-reaching or overzealous. I know it happens. It's just that once you step past that law's basic underpinning of a finding of government misconduct, it's hard to find a point where the taxpayers are justified in assuming that a winning criminal defendant should still pay the bill.
  • Glenn's takings analysis seems to understate the fundamental elements of "police power," and gives insufficient consideration to the fact that rational regulatory costs are usually accepted as an individual responsibility. In the civil context in which takings analysis usually occurs, it's generally recognized that not all costs of regulatory action are recoverable by the citizen against the government. In land use cases, for example, normally no taking is found unless the government's regulatory action deprives the property owner of all effective economic use of the parcel. What would be the criminal law equivalent, logically speaking?

This first post is really long, but then again, catnip is awfully tempting.

Contact Information:

Fritz Schranck
P.O. Box 88
Nassau, DE  19969

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Official small print disclaimer: This is, after all, a personal web site. Any opinions or comments I express here are my own, and don't necessarily reflect the official position of my work as a government attorney or any of my clients.

That fact may become obvious later on, but it needs to be said here anyway.

Frederick H. Schranck 2002