Lyric Novels

All cultural trends cycle through history. Long form works in verse are no exception.

They were big in Sumeria: think Gilgamesh. They were big in classical Greece: think Homer. They were big in Elizabethan England: think Shakespeare. And, they were big two hundred years ago: think Byron.

Now, they are back, mostly in the teen fiction aisle of your local book store or library.  One recent one is the new novel by Stefanie Lyons, Dating Down (2015).  It, and its companions in the genre are not Gilgamesh, Homer, Shakespeare or Byron.  But, you’ve got to start somewhere. This genre has been so frozen for so long, it will take some time to recover.

Intellectual historians hypothesize that writing in verse may have originally been a mnemonic aide when most people were illiterate and fiction was strictly an oral tradition.  Shakespeare and Byron were, in part, trying to imitate classical Greco-Roman forms in the process of trying to reinvent high culture that had been dormant during the Dark Ages.

These days, teen fiction aimed at girls is in verse because it is emotionally intense, while also being cute.  It also captures the modern folk practice of keeping a poetry journal in lieu of a more conventional one, which is a favorite of introverted, emotionally intense bad girls across America these days.  It conjures the creative spirit of all of the great manic-depressive wunderkind who die young after leaving their mark on our collective soul.

The trouble is that modern long form works in verse tend to be poetry collections loosely connected together to provide a narrative, rather than actually containing any really lengthy individual poems.

Why is this a problem?

Well written long works in prose can be page turners, flowing seamlessly as they pulls you ever forward towards a conclusion.

In contrast, a long collection of related short poems invites you, indeed almost urges you, to stop, reflect, and put the book down every two or three pages when an individual poem concludes.  It’s like watching a TV show with a commercial break every three minutes.  While individual poems may suffice to tell their part of the story, and even to tell it better than prose would, it interrupts the flow of reading to invite your reader to interrupt the experience.  This makes it much harder to finish reading the whole thing.

This isn’t to say that there is an insurmountable barrier to a return to long form works in verse. Some very successful and acclaimed short novels are written in prose so carefully crafted that it reads almost like poetry.  The Bridges of Madison County (1992) by Robert James Walker, and Plainsong (1999) by Kent Haruf, exemplify that literary style.  And, most of the millions of English majors in the country today are very familiar with the historical forms of the genre to Gilgamesh to Byron, so plenty of potential lyric novelist are equipped with the basic tools needed to single handedly revive the form.

Until then, you can read the decidedly less than epic lyric novels that have infiltrated teen fiction at your own risk.  But, don’t blame me if you set these novels down before you are finished and never get back to them.

from Wash Park Prophet
via Denver News

Confederate Flag Rallies

Wonkblog maps the 173 pro-Confederate Flag rallies that have been held since the June 17, 2015 shooting of nine parishioners by a white supremacist (who has confessed to the crime and its motive) at a historic black church in Charleston, South Carolina prompted governments and businesses to disavow the Confederate Flag as a symbol.

The data was gathered by the Southern Poverty Law Center, which estimates a total attendance of 23,000 people, about half of which was at three big rallies: one in mid-July in Oscala, Florida to support a county decision to return a Confederate flag to government property with about 5,000 attending, one in North Carolina that drew about 4,000 people, and a KKK rally in Charleston in July, 2015 that had 2,000 supporters.

This isn’t a huge attendance for supporters of what was reinvented as a symbol of opposition to the Civil Rights movement at that time, after having been mostly dormant for about seventy years, and has remained a potent symbol for white racists in the South (unfortunately, a group that includes most Southern whites) for about half a century.  Keep in mind that referendums in more than one state have shown majority support among voters for the Confederate flag as a government endorsed symbol in Southern states in the last decade.  The many small rallies with just twenty or so supporters each almost make more of a statement by being pathetic and lonely than they do by showing mass opposition to removing the Confederate flag from government buildings. Also notably, many of the rallies had numerous armed attendees.

Mostly, the distribution of the rallies are what you would expect.  But, there were a few surprises.  I was surprised to see many more rallies in Ohio than in Indiana which has historically been more conservative and more politically aligned with the South.  I was surprised to see no rallies in Coeur D’Alene, Idaho, a historical center of the white supremacy movement, while seeing them in Oregon and New Mexico which are not known for those leanings. There were fewer rallies in Texas than I would have expected, perhaps because the Texas flag provides an alternative sense of identity for Texans.

from Wash Park Prophet
via Denver News

NYC In The Summer

I am in New York City most of this week taking depositions* in a trademark infringement lawsuit. My hotel is in Times Square (7th Avenue and West 51st Street).  The depositions are being held at the offices of a law firm at Park Avenue and East 40th Street.  I took a cab there this morning since time considerations were key and I had a large suitcase full of exhibits (including numerous samples of the disputed goods) that I needed for the depositions.  But, since I was able to leave my exhibits and their suitcase at the law firm overnight, and I was in no rush to get back to my hotel, I walked back.

This fifteen block walk (1.1 miles) was a manageable distance to walk unburdened by things to carry; a healthy walk with a little sightseeing thrown in, after a day spent working since early in the morning to make final preparations for, and then take, today’s deposition.  But, what I did not foresee was just how hot it is to walk the streets of New York City on a summer afternoon, with temperatures of a reasonably humid ninety-something degrees, in a full suit and tie.  It had been so much cooler in the morning when I left that I hadn’t expected it to be an issue.

By the time I finished my walk and arrived in my hotel room, my dress shirt was so drenched with sweat that I might as well have just pulled it out of a bathtub, or walked through a rainstorm.

* A deposition involves taking the testimony of a witness under oath in the presence of a court reporter, much like you might at a trial, usually in a law office or hotel conference room, outside the presence of a judge or jury, and with fewer permissible objections to questions asked that are allowed. Depositions are usually taken in non-criminal lawsuits in order to obtain information from opposing parties and third party witnesses in order to prepare for trial.  This testimony is also not infrequently used in a pre-trial motion for summary judgment to establish that one or more key facts necessary for the court to make a ruling are undisputed, when this is the case.  Less frequently, depositions are used to preserve the testimony of someone who may not be available to testify at trial for some reason, in which case the testimony is read aloud to the jury in lieu of live witness testimony, unless the deposition was videotaped, in which case the jury watches selected portions of the video. In modern civil litigation, in which the lion’s share of lawsuits are resolved by settlement or motions practice prior to trial, and “no surprises” in the mantra in cases that do go to trial, a civil litigator typically spends far more days taking and defending depositions, than actually litigating cases in trials.

from Wash Park Prophet
via Denver News

Old New Wisdom That’s Still True And Other Miscellany

* Vox succintly restates what recent empirical evidence from the social sciences tells us about parenting:

Like any parent, I would love to believe that my awesome kids are a result of my awesome parenting. Sadly, expert opinion indicates it ain’t so. Genes have an enormous influence. Peers and culture have an enormous influence. But parenting styles inside the home, apart from extreme cases like abuse or neglect, have very little long-term influence on a person’s personality or success in life, at least that social scientists have been able to detect. . . . This isn’t to say parents and parenting aren’t important. Parents supply the genes, except in cases of adoption (or remarriage). They control, at least to some extent, the peers and environments to which children are exposed. And of course they crucially affect a child’s quality of life at home, which, as I will argue shortly, is not some minor detail.

But it’s safe to say that your kids’ long-term fate will not be meaningfully affected by the speed and timing of potty training, the brand of educational videos you purchase, or the precise tone of voice in which you discipline. A large proportion of the Parenting Industrial Complex isn’t about kids — it’s about generating content for nervous parents who feel like they should be doing something.

I’ve made the point recently that there are a few other things that buck the trend of genetic determinism in parenting. Many of traits we associated with “good character” in children, the extent to which a child is comfortable physically touching others, the religious beliefs a child learns growing up (although not necessarily the way a child responds to those beliefs within that tradition), the language that a child learns, and the opportunities that a child has to learn new languages at an age young enough for that instruction to “take”, do have something to do with parenting choices.

Also, just because refraining from “abuse or neglect” and escaping its frequently companion, poverty, is commonplace, doesn’t mean that it is always easy when faced with a colicky baby or balancing the need to work long hours to be able to afford essentials and the need to be personally present with your children.

But, it is certainly fair to say that parents, especially affluent new parents with few children who grew up small families themselves, are prone to dramatically overestimate the role of parental nurture in how they turn out.

And, David Roberts, the author of this Vox article does have one other good caveat for us:

The alternative to viewing childhood as preparation is viewing it as life, to be savored and enjoyed. Life is just a series of moments, and it’s amazing how many of them we miss, rush past, or disrupt because our minds are elsewhere, anticipating the future or dwelling on the past. But a moment of joy or connection is its own justification, not a means to an end.

* Another Vox retread that has long been well established, but mysteriously hasn’t swept the nation despite being well established empirically is that: Giving housing to the homeless is three times cheaper than leaving them on the streets.

This miracle has been demonstrated over and over again, in Denver, in Southeast Colorado, in Central Florida, and in Charlotte, North Carolina, and in Utah, to name a few examples.  Yet, it is so contrary to what “everyone knows is true” that politicians and the public stubbornly resist implementing this fairly simple idea.

* The same thing is true about the common American criminal justice practice about routinely incarcerating people charged with crimes pending trial if they can’t post bond, which many poor arrestees cannot.

The Vera Institute of Justice developed powerful empirical evidence in the 1960s that the modern institution of bail was unjust and that releasing all but a handful of high risk poor criminal defendants awaiting trial did not pose a heightened risk to public safety, greatly reduced the cost of the criminal justice system for the municipalities that adopted this reform (supervision by pretrial services officers costs about a tenth as much as keeping someone locked up), and produced more fair criminal justice outcomes.

But, as the New York Times and other investigative journalists who have looked into the story have shown, bail remains an institution for unjust and expensive mistreatment of the poor, even in New York City where some of the first experiments with an alternative were wildly successful.  Consider this paragraph from the New York Times Magazine (via Vox):

[The Bronx Freedom Fund] bailed out nearly 200 [low-income] defendants and generated some illuminating statistics. Ninety-six percent of the fund’s clients made it to every one of their court appearances, a return rate higher even than that of people who posted their own bail. More than half of the Freedom Fund’s clients, now able to fight their cases outside jail, saw their charges completely dismissed. Not a single client went to jail on the charges for which bail had been posted. By comparison, defendants held on bail for the duration of their cases were convicted 92 percent of the time. The numbers showed what everyone familiar with the system already knew anecdotally: Bail makes poor people who would otherwise win their cases plead guilty

* Empirical research by educational psychologists and pediatricians had strongly established that high school students perform better if their school days start later.  Despite the existence of this proven, easy to implement, no cost way to improve secondary education, however, this remains the exception rather than the rule, with the lion’s share of school districts sending elementary school children who are bright eyed and bushy tailed early in the morning to school late in the day, and giving high school students the early shift.

One rare promising example of a school listening to the empirical evidence, however, is the newest charter high school in the Denver Public Schools, Northfield High School in the Stapleton neighborhood, whose doors open this fall for its first entering class, which will also feature an extended school year with less summer vacation (another empirically proven way to improve school performance that has not overcome decades of tradition that no longer makes any sense in the modern world).

* I hadn’t realized until stumbling upon an article on the reform of California’s draconian “three-strikes and your out” law that the 2012 ballot initiative that reformed it was largely the work of two men, George Soros and a California law professor, whose roughly equal combined $1.9 million of contributions to the total $2.7 million raised by the campaign as a whole (about $1.5 million of which paid for the process of getting approval for a petition and circulating it with paid petition gatherers to get it one ballot).

They accomplished what liberals in California’s legislature, seemingly unanimous academic and newspaper editorial opinion, the 8th Amendment prohibition against cruel and unusual punishment, the power of the Governor of California to commute criminal sentences, and scathing dissenting opinions by judges had not.  This measure bought the freedom of roughly 3,000 people who were unjustly imprisoned for life for minor third crimes (many of which would have been misdemeanors for first offenders), at a price of less than $1,000 each, in an act reminiscent of a wealthy man buying slaves to free them (something that still happens in places like Mali).

The fact that a couple of wealthy individuals could get 69% of Californians to vote for a citizen’s initiative to fix a clear problem which the state legislature in a liberal state wasn’t willing to take on points to how fundamentally flawed the legislative process can be.

* Op-Ed columnist George Will meanwhile calls attention to another set of deep flaws with our legislative process recalling Jonathan Rauch’s 1994 book “Demosclerosis”, which he accentuates with the example of Mohair subsidies supported by no rational policy argument to the tune of $5 million a year that managed to be reenacted for most of the time period since 1954.  Simply put, Madison’s Federalist Paper No. 10 be damned, the inattentive majorities to which Congress theoretically responds turns out to be utterly incompetent at overcoming the will of attentive minorities. Individually, this senseless subsidies are a drop in the bucket, but collectively, they add up.

They are also canaries in the mine alerting us to flaws in the process that have the potential to manifest in more damaging ways elsewhere, and undermine basic civics assumptions about how our democratic system of government should work.  In short, it is proof, once again, that we have a system of government that is no longer state of the art or enviable as a world model of a democracy that works well, something that undermines our “soft power” on the world stage.

* Louisiana has lost 1,880 square miles of land to the sea in the last century, a trend that Hurricane Katrina accentuated.  Many of the remaining settlements outside New Orlean’s new and improved levees will be gone after the next serious Hurricane to this the region (which may be a few years due to the existence of one of the strongest El Nino conditions on record in the Pacific right now, which suppressed Atlantic Hurricanes while enhancing Pacific Monsoons).

Incidentally, those Pacific Monsoons which have hit rural Indian hard, are also dragging down world gold prices, because rural India despite being relatively poor internationally, accounts for about 20% of world gold purchases (proportionate to its population but greatly disproportionate to it share of world GDP) because large gifts of gold are common their as gifts for weddings and other occasions. But, monsoon driven hard times have curtailed their purchases and thus curtailed demand for what is roughly speaking as a first approximation, a fixed world supply of the commodity.

* There are still crazy people in the world.

For example, there are people who get stories published in religious magazines in the United States, who claim with a straight face that having Rhesus (RH) negative blood is a sign that you are descended from the Nephilim (i.e. human-angel hybrids), described in passing in the Bible and at length in the non-canonical Book of Enoch which has had immense impact on Judeo-Christian mysticism or metaphysical lore that has made its way into popular culture. Despite the fact that the Nephilim of apocryphal Christian tradition were generally evil, the proponents of this theory try to fit an angelic origin of RH negative blood into a doctrine of white supremacy (although ironically a white supremacy that favors the European Catholics and Jews whom the KKK persecuted almost as severely as blacks) noting that:


They also argue that angelic ancestry is associated with:

* Higher than average IQ
* More sensitive vision and other senses.
* Lower body temperature
* Higher blood pressure
* Increased occurrence of psychic/intuitive abilities
* Predominantly blue, green, or hazel eyes
* Red or reddish hair
* Increased sensitivity to heat and sunlight
* Cannot be cloned
* Extra vertebra

Needless to say, all of this is absurd and has no legitimate basis in either science or Christian or Jewish religious doctrine.

* Modern African Christianity, meanwhile, has latched onto to doctrines of demon possession and exorcism, deliberately de-emphasized in the Northern hemisphere branches of these denominations despite the prominent role that these doctrines play in the canonical New Testament, in which an exorcism ministry was one of the core activities of Jesus Christ and his apostles.

African Christians have also taken up the Old Testament injunction to kill witches with unfortunate gusto, a practice that European Christians largely abandoned after the 17th century as the Enlightenment largely banished the notion of witchcraft as being anything more than fiction among the elites that held the power to continue the practice.  (Persecution of suspected witches is also alive and well in modern Islam.)

* Crazy people are more frightening, however, when they have power.  For example, Alabama Chief Justice Roy Moore (who was re-elected by the people of Alabama to the post after being removed from it for judicial misconduct) thinks that the U.S. Supreme Court legalized same-sex marriage because Satan influenced them to do it.

* Our criminal justice system is quite impervious not just to uncommon insights, but to common sense too.  The prevailing view in the law of post-conviction review of criminal convictions is that “an innocent person convicted after a procedurally adequate trial” is not constitutionally entitled to release from prison, because “actual innocence” has not been recognized by the U.S. Supreme Court as a valid legal basis for a habeas corpus petition (a perverse position famously strongly supported by Justice Scalia).  I strongly suspect that Justice Kennedy and the four liberals on the U.S. Supreme Court might change that precedent if the right case presented itself (and President Obama’s solicitor-general might not argue too strongly for a contrary result).

But, right now, this is a status quo that Congress in an effort to weaken post-trial review of death penalty sentences has enacted as policy in statutes like the habeas corpus reforms of Title I of the Anti-Terrorism and Effective Death Penalty Act of 1996, which has made post-trial review of state criminal convictions into an angels on pinheads procedural maze, even though the act has actually proved in practice to be more of a barrier in non-death penalty cases than in those where the death penalty is actually imposed.

This unfortunate legislation was one of a number of bad policies signed into law by President Bill Clinton.  It routinely compounds the harm done by state court trial judges when they make grave mistakes that unjustly ruin people’s lives.  Concern about the possibility that his wife would also support those bad policies if elected President is one reason that some Democrats, rightly or wrongly, are concerned about a Hillary Clinton Presidency.  Maybe she has learned from experience. Democrats have been known to do that a bit more often than members of the other major political party.  But, it would be nice to have a nominee who was right on issue like that the first time.

* You would think that U.S. Supreme Court litigation specialists would be that the top of the food chain when it comes to pay in the legal profession and would have the highest hourly rates.  This might be true, and certainly, none of them are going hungry.  But if their rates are as high as they get, the “winner take all” economics of many other parts of the U.S. economy aren’t as powerful in law as they are in many professions.

Top U.S. Supreme Court advocates charge $1,020 to $1,800 an hour. For a unique, national, premier specialty, this is a surprisingly small multiple of the roughly $250-$300 per hour charged by perfectly ordinary, run of the mill lawyers in the regional, not particularly high cost of living.  It is less than the effective hourly rates earned by many lawyers working on perfectly ordinary contingent fee cases, where it isn’t unusual to see effective hourly rates of $500 an hour or more.

from Wash Park Prophet
via Denver News

Rocky Ford a.k.a. Bad Copville


For the past few years, until a few months ago, the small town in Southeast Colorado was known for the disastrous listeria ridden cantaloupes called “Rocky Ford Sweets” from Jensen Farms that killed thirty-three people in 2011.



This “second chance” hiring policy may have been modeled on the Vatican’s policy of relocating priests who sexually abused children to new posts where families of new potential victims didn’t know about the priests’ prior crimes.  The policy didn’t work out well for the Roman Catholic Church.  It turns out that their second chance priests (and often there were many “second” chances), had a strong tendency to reoffend and require the church to engage in more cover ups.

It also doesn’t turn out to be working that well for Rocky Ford.



If you give a cop who screwed up a second chance, it should be in a position that doesn’t involve giving him a gun, or putting him in a position of authority over others, like driving a truck, working on a farm, or framing new apartment buildings.

Of course, as the Denver Post’s excellent investigative journalism on this story (credit where credit is due in an increasingly understaffed newspaper) points out, the Colorado Board of Peace Officer Standards and Training, the licensing body for state and local law enforcement officers in the state, is also to blame.  At least 39 other states make it harder for bad cops to remain licensed as law enforcement officers and at least 18 other states require employers of bad cops to inform state authorities when police officers are fired or resign.  In contrast, “Colorado will not even share the employment history it does have with the chiefs wanting to know about an applicant’s background.”




from Wash Park Prophet
via Denver News

The Odd Case Of The Vigilant Tourists

A Texas couple sold thousands of tons of alfalfa for more than $1.5 million to Colorado farmers, bought a big boat and sailed away to the Bahamas with their seven children. The seemingly idyllic family adventure didn’t end well, however, because Donald and Karlien Winberg didn’t actually grow alfalfa. They’re con artists. 

After federal fraud charges were filed in April 2014, the Winbergs went on the run for several months. FBI agents tracked them to a 40-foot sailboat near the Staniel Cay Yacht Club in the Bahamas in October. . . . A federal grand jury in Denver indicted the Winbergs on April 22, 2014. After going on the run, the family surfaced in the Houston area in October and bought a sailboat with $20,000 cash using fake names, the Houston Chronicle reported. They lived aboard the boat at a local marina until shortly before setting out Oct. 29. Galveston Bay authorities rescued the family from the sinking boat. 


Via The Denver Post.

I’ve litigated many cases against con artists big and small, and have had to turn as many down because it wasn’t possible to identify and locate the perpetrators who were operating under false names and claimed to be working out of non-existent office addresses.

It is rare for law enforcement to be willing to step in and take action.  But, the fairly large dollar amounts involved, the multiple victims, and the fact that the case had strong ties to Colorado, Texas and Idaho at the time that it was filed, and the fact that the perpetrators apparently didn’t use false names.

Far more remarkable, however, is the fact that even though “Galveston Bay authorities” who rescued the family of con artists from their sinking sailboat didn’t recognize them and turn them in, tourists from Louisiana on vacation in the Bahamas did!

Seriously, how many are so alert that, even when they are on a beach vacation in the Bahamas, they were aware of the existence of someone who conned some farmers out of money in states where they don’t even live, and then connected the dots to know it was them in the Bahamas?  Even determined private investigators are rarely able to find fugitives in cases like these.  But, perhaps because a family of fraudsters with seven kids on a sail boat in the Gulf of Mexico are so different from the run of the mill “most wanted” poster criminals, they may have been more memorable.

This case wasn’t national news (rightfully so, it isn’t that big), but presumably, the FBI or federal marshals must have figured out in October that they had just missed their quarry in Galveston and that they had fled via another sailboat, and then put out the word in marinas, in local news broadcasts across the Gulf Coast, and maybe even in Caribbean news outlets, shortly afterwards.  People who frequent marinas may be more attentive to wanted criminals who could crop up in the boat next to them than to run of the mill thugs reported on the nightly news, for example.

Still, even then, the tourists rate as incredibly vigilant.  There seems to be an endless barrage of missing persons and most wanted criminals in post offices, grocery stores and news stories (most for serious violent crimes), that it is very hard to keep track of.  And, it is also rare for someone to have the certainty that these people are the suspects, the sense of civic duty to take action on that knowledge while on vacation, and the familiarity with the criminal justice system to know how to report this knowledge to someone capable of securing international cooperation to have them arrested in a foreign country.  Many a small town cop in the jurisdictions where the farmers who were victimized by these crimes lived would not have known how to manage such a bureaucratic feat.

Indeed, the mores I think this through, the more likely I think it is that these tourists may have been vacationing law enforcement officials of some type who were alerted to these fugitives through official channels and been able to take action on that information because of their professional expertise.

I guess I’ll never know how this extraordinary tip was really made possible, but it would be fascinating to know.  Still, whatever the circumstances, it does illustrate a recurring theme.  Sharing information about suspected wrongdoers with the public routinely results in them being apprehended or thwarted, while keeping this information secret makes it much easier for suspects to remain at large.  Secrecy rarely makes us more secure, and this is just as true in cases where the suspects are suspected terrorists or national security threats as it is when they are mere common con artists as in this case.

Once arrested, the couple eventually pleaded guilty to federal wire fraud and conspiracy charges. Yesterday, about ten months after they were arrested, they were sentenced in federal court in Denver, although the report that I link to doesn’t say what sentences were imposed.  Given the amount stolen, both parents will likely face many years in prison, leaving their seven kids in the lurch, either to be placed with extended family, or in foster care, something that they presumably did nothing to deserve.  But, it is hard to see any way to avoid that outcome while appropriately punishing the parents.

The short news report also doesn’t make clear how much of the stolen funds were recovered or repaid in a restitution award from other sources, or whether the victims of the fraud were able to recoup any of their theft losses from insurance.  While homeowner’s and business insurance policies routinely cover stolen tangible personal property, it is much less common to be able to recover money paid as a result of someone else’s fraudulent conduct with an insurance claim.

One of the unfortunate realities you face as an attorney trying to secure justice for a client who has been defrauded is that your client is usually better off with the fraudster out of prison where he or she can earn funds to make settlement payments, even though this exposes the public to the risk that the perpetrators will merely find new marks (and perhaps even use the funds secured from those victims to pay your client).  Likewise, as a private attorney helping one fraud victim, it is often in your interest to act in a way that doesn’t tip off other victims (and fraudsters almost always have more than one victim) that you have located the fraudster and brought him or her to justice, because then the limited funds available to compensate your client (which are almost never sufficient to secure a full recovery) will have to be shared with other victims.

Similar moral conflicts arise when your client is the victim of some systemic business conduct or administrative behavior of a government agency.  Attorneys defending the business or government will often offer your client a settlement in exchange for confidentiality and an end to your lawsuit or threatened lawsuit, even though, had you prevailed on the merits (as you are likely to have done in cases that the other side is willing to settle), your win would have given other victims a binding precedent that they could have used to win easy victories of their own, and would have made the perpetrator much more likely to discontinue what is typically an ongoing pattern of improper conduct.  Unless your client is independently wealthy and has an extreme sense of moral duty, your client will usually direct you to take an offer that provides compensation to them, even if that means allowing the repeat perpetrator to escape justice for harms to other past and future victims.

One of the important reasons that businesses so vehemently oppose class action lawsuits is that it denies them the ability to grease the squeaky wheels, while unjustly screwing over everyone else that they have wronged without facing any consequences for their actions.

As an attorney representing a private client who has been victimized by fraud, your duty to put your client first, even if other victims will be left worse off, is clear.  But, this is certainly one of the otherwise more morally ambiguous imperatives imposed upon attorneys as a matter of professional ethics.

In private litigation, restitution almost always trumps retribution or justice viewed at the level of the entire course of conduct by the wrongdoer.  But, while this is almost always the right micro-level decision for the victims who you represent, it is not at all clear this the incentives our legal system creates to take this approach make sense as a matter of public policy.

from Wash Park Prophet
via Denver News

Arbitration And State Constitutional Rights To A Jury Trial And To Civil Remedies

Somehow, I missed the notably case of Atalese v. U.S. Legal Services Group, LP, decided by the New Jersey Supreme Court on September 23, 2014 (certiorari was denied by the U.S. Supreme Court). In that case, a consumer contract contained an arbitration provision, but failed to clearly state in language that “a reasonable consumer” would understand that the consumer “was having her statutory right to seek relief in a court of law,” so it held that the provision was unenforceable.

While the ruling made little difference in the long term “war” to limit the pernicious effects of arbitration clauses in consumer contracts, because the objection raised by the New Jersey Constitution is simple enough to draft around, it did have the effect of invalidating many, probably thousands, of existing contractual arbitration clauses in New Jersey which lacked the requisite language – freeing consumers under these existing contracts which are often hard to renegotiate from its constraints in the event of a dispute.  And, it did create a trap for the unwary that could invalidate future arbitration contracts, particularly those written into national agreements by non-New Jersey counsel who are unaware of the new New Jersey rule.

The ruling was also colored by the existence of Article I, Paragraph 9 of the New Jersey Constitution, which guarantees that “[t]he right of trial by jury shall remain inviolate.”

A Long Digression On The Right To A Jury Trial With An Emphasis On Colorado

The 7th Amendment to the United States Constitution guarantees the right to a trial by jury in civil cases in federal court where the right to a jury trial existed at common law at the time that the Bill of Right was adopted (i.e. 1791) and in the case of causes of action that didn’t exist then, if a right to a jury trial existed in analogous cases at the time. See, e.g., Chauffeurs, Teamsters, and Helpers Local No. 391 v. Terry, 494 U.S. 558 (1990).  But, the 7th Amendment is one of a handful of provisions of the Bill of Rights which does not apply to state and local governments for rather intricate reasons of constitutional law collectively known as the incorporation doctrine, see, e.g., Minneapolis & St. Louis R. Co. v. Bombolis, 241 U.S. 211 (1916), except that the scope of the right to a civil trial by jury (although not necessarily its existence) is controlled by the 7th Amendment in cases that are brought in state court under federal law, Dice v. Akron Canton & Youngstown R.R., 342 U.S. 359 (1952).

But, in practice, almost every U.S. state generally makes civil jury trials available to litigants in substantially the same circumstances in which they are available in federal court, except for Louisiana whose courts follow the French tradition established before the Louisiana Purchase of this territory from France in civil procedure and private law.  Many states do have isolated statutory carve outs from the general rule which most commonly include exceptions for small claims courts and courts of claims against state governments.  But, the general federal rule in the norm, despite its quirky, arbitrary, and sometimes hard to apply provisions.

No country in the world other than Canada makes such wide use of civil juries.  Countries outside the Anglo-American legal tradition never had them, and the United Kingdom and most other countries in the British Commonwealth have abolished them outside some very isolated circumstances (the few exceptions often include eminent domain condemnation cases and defamation cases).

In my home of Colorado, however, unlike New Jersey, the right to a civil jury isn’t found in the state constitution. See, e.g. Continental Title Company v. District Court, 645 P.2d 1310 (Colo. 1982).  The right to a civil jury trial in Colorado used to be statutory, but that changed when the authority to make state court rule was (wisely) transferred to the Colorado Supreme Court.  See Miller v. District Court, 154 Colo. 125, 388 P.2d 763 (1964).

So, subject to a handful of isolated exceptions (e.g. in eminent domain cases), the right to a jury trial isn’t a statutorily created right in Colorado either. Indeed, there are some classes of cases where jury trials are expressly prohibited by statute.

For example, in all cases arising under Colorado’s dissolution of marriage act, “All issues raised by these proceedings shall be resolved by the court sitting without a jury.” Section 14-10-107(6), Colorado Revised Statutes.  See also, e.g., In re Marriage of Lewis, 66 P.3d 204, 205 (Colo. App. 2003) (“All issues raised or presented in a dissolution proceeding are to be resolved by the court in equity sitting without a jury.”).  Most issues is divorce cases wouldn’t include a right to a jury anyway (even though judicial divorce didn’t exist in Anglo-American jurisprudence in 1791), but some issues commonly decided in divorce cases.  But, some issues decided in divorces (e.g. a request that a soon to be ex-spouse turn over a painting that is allegedly the separate property of the spouse requesting itwhere ownership of the item is disputed), look a great deal like issues where there would ordinarily be a right to a jury trial outside of the divorce context.

Instead of arising via the state or federal constitution or a statute, in Colorado, the right to a civil jury trial in Colorado is almost exclusively a creature of Colorado Rules of Civil Procedure 38(a) (in District Court and Denver Probate Court) and 338(a) (in County Court). These rules are enacted by the Colorado Supreme Court and may be amended by it administratively without legislative or executive branch involvement.

By the terms of these rules, the right to a jury trial in Colorado exists in “actions for the recovery of specific real or personal property, with or without damages, or for money judgment claimed as due on contract, or as damages for breach of contract, or for injuries to person or property[.]”  C.R.C.P. 38(a) and C.R.C.P. 338(a).

In practice, however, the scope of the jury trial right in Colorado has been interpreted in Colorado to be essentially identical in broad outline to the 7th Amendments many esoteric provisions.  As under the 7th Amendment, the right to a civil jury trial in Colorado hinges on whether or not the claim asserted would have historically been brought in “courts of equity” or in “courts of law”, even though Colorado had merged the two parallel English legal systems more than a century ago, as have the federal courts and all but a handful of state court systems (one notable exception is the State of Delaware).  See, e.g., Kaitz v. District Court, 650 P.2d 553 (Colo. 1982).

Similarly, as under the 7th Amendment, the right to a jury trial is determined on the face of the Complaint filed by the plaintiff (or third party plaintiff in the case of a third party complaint, or a cross claim filed by one defendant against another), without regard to any defenses or counterclaims brought by a defendant (or third party defendant or cross claim defendant). See Miller v. District Court, 154 Colo. 125, 388 P.2d 763 (1964) (complaints and cross claims) and Simpson v. Digiallonardo, 29 Colo. App. 556,. 488 P.2d 208 (1971) (third party complaints).

For example,  there is no right to a trial by jury in Colorado in a case to have a trust declared invalid. Ayres v. King, 665 P.2d 594 (Colo. 1983).  But, there is a right to a trial by jury in Colorado in a claim for personal injury arising out an automobile accident.  Suppose that Margaret wants to sue her uncle Fredrick to have a trust that he established that denies her a right to benefit if she marries a man who is not white (such as her current fiance) declared invalid, while Fredrick wants to sue Margaret for injuries he suffered when she carelessly backed into him while leaving his office a few months ago after discussing the trust issue.  Suppose further that Colorado’s mandatory counterclaims statute (sometimes called the “entire controversy doctrine” when implemented via case law rather than by court rule) requires that if one of them sues the other, that any possible lawsuit that the person sued could bring against the person suing them is waived if not raised as a counterclaim.  Cf. Colorado Rule of Civil Procedure 13(a) (which might or might not actually apply to this fact pattern).  (Note, however, that, in part to preserve jury trial rights, the general rule that certain kinds of counterclaims are forever forfeited if they are not filed in a pending current lawsuit between two parties, does not apply to divorce actions in Colorado. Simmons v. Simmons, 773 P.2d 602, 605 (Colo. App. 1988)).

In this scenario, it Margaret files her lawsuit before Fredrick files his lawsuit, then Fredrick is not entitled to a jury trial on his counterclaim against Margaret for personal injuries arising from the car accident.  But, if Fredrick is the first to court and Margaret files her trust claims as a counterclaim, then Fredrick would be entitled to a trial by jury.

There is an exception to this general rule in the case of a fairly trivial loophole utilizing this rule under federal 7th Amendment law that threatened to swallow the rule, and has probably been adopted by many states facing the same issue.  While declaratory judgment actions were traditionally decided by courts of equity, and hence were not tried by juries, you cannot simply rush to court seeking declaratory judgment that you did not commit the federal tort for which there is a right to a trial by jury that someone else has threatened to sue you for, in order to turn their lawsuit into a counterclaim in an equitable action where a jury trial is not available.  Beacon Theaters, Inc. v. Westover, 359 U.S. 500 (1959).  The court reached its decision by relying on the doctrine that equitable remedies like declaratory judgments are not available as a remedy in cases that can be adequately and fully resolved in a court of law in a lawsuit over the underlying tort claim.

This is on the most odd and arbitrary rules of civil procedure that aptly illustrates the curious and problematic results of taking a quite strictly originalist approach to constitutional interpretation.  A well titled law review article on the subject, summed up the situation: Martin H. Redish, “Seventh Amendment Right To Jury Trial: A Study In The Irrationality Of Rational Decision Making“, 70 Northwestern U. Law Rev. 486 (1976-1977).

But, despite the fact that states are under no legal obligation to follow the federal example in this situation, Colorado and almost every other state except Louisiana does just that.  It is a stunning example of how often state legislatures do not act as the “laboratories of democracy” that they are often described as in superficial civics class descriptions of federalism, and instead slavishly act based upon inertia and imitation of federal or uniform law models, even when they are under no obligation to do so and the status quo is one that no one would design if they were starting from scratch.

Back To State Constitutional Rights To Jury Trials

As the recent Atalese case in New Jersey illustrates, state constitution protections of the right to a trial by jury, which are common (adopted in imitation of the federal bill of rights) but not ubiquitous, frequently end up doing much more than supplying a rule of civil procedure for cases pending in state courts.  Indeed, few kinds of state constitutional rights have a history of a more varied and creative mix of applications.

For example, quite a few state constitutional provisions were utilized by state appellate courts to invalidate state tort reform legislation imposing caps on money damage awards on the theory that a constitutional right to a jury trial makes it the prerogative of the jury to determine the amount of money damages that may be awards in cases in which there is a right to a jury trial, which state legislatures may not invade. See, e.g., Lucas v. United States, 757 S.W.2d 687 (Tex. 1988); Condemarin v. University Hosp., 775 P.2d 348 (Utah 1989); Sofie v. Fibreboard Corp., 771 P.2d 711 (Wash. 1989), modified, 780 P.2d 260 (Wash. App. 1989).  Other state courts with a state constitutional right to a jury trial, however, have concluded that their right to a civil trial by jury is procedural and does not extend to the substantive scope of the remedy. Jordan v. Long Beach Community Hosp., 248 Cal. Rptr. 651 (Cal. App. 1988) (review denied and ordered not to be officially published (Sept. 15, 1988)); Yates v. Pollock, 239 Cal. Rptr. 383 (Cal. App. 1987).

A handful of other states have gone even further, holding that a state constitutional right to a jury trial protects not just the procedural right of parties in certain kinds of cases to have their cases decided in a particular kind of way, but also the substantive right to a civil remedy in the form of a legally recognized cause of action for the kinds of injuries where there was historically a right to enforce though a lawsuit in which a civil jury had the power to authorize relief.

But, as often as not, these case actually hinge on one of the thirty-four or so state constitutional provisions which, in imitation of Section 29 of the Magna Carta, guarantee not just a procedural right to a jury trial, but a substantive right to seek redress through the civil courts for any injury of the type described. A typical example of such a provision states that:


Vermont Constitution, Chapter I, Article 4. See generally The Right of Access to Civil Courts under State Constitutional Law: “An Impediment to Modern Reforms, or a Receptacle of Important Substantive and Procedural Rights.”, 13 Rutgers L.J. 399 (1982) (a “Note” authored by a law student on the staff of the law review without public acknowledgement of authorship).

These two kinds of provisions, combined, have been considered to be potential barriers to tort reforms and civil procedure reforms, such as no fault liability regimes, for example, in worker’s compensation systems, for car accidents or for medical malpractice cases.

These state constitutional provisions are generally of little use in the context of arbitration, because the Federal Arbitration Act, 9 U.S.C. Sec. 1, et seq., because Section 2 of the Act pre-empts state law, including state constitutions, in circumstances, are prohibits states from invalidating arbitration clauses in circumstances where the FAA applies (which it does to any transaction involving interstate or international commerce, which is that term that has expansive scope, and to any maritime transaction).

But, Section 2 of the FAA does have an exception in cases where the arbitration clause would be invalid under generally applicable principles of state contract law such as those invoked by the New Jersey Supreme Court in Atalese.  There, while the state constitution colored how those state law contract principles were applied to a contract containing an arbitration clause, the contract law principles applied were sufficiently neutral and universally applicable to all contracts, that the decision to invalidate the arbitration clause escaped FAA preemption.

from Wash Park Prophet
via Denver News

Reality Bites

* The public defender’s system in one Georgia judicial circuit was so profoundly broken that one man sat in jail for 110 days for a crime for which he had already been convicted and served his sentence.  The officials in charge of making the system work and operating the local judicial system, including the judges, willfully defy the constitution in myriad way and have worked very hard to prevent it from having any effect in their four countries.  Alas, this situation is Georgia isn’t that unusual elsewhere in the country.  Turning court rulings into adequate funding for public defenders isn’t something that happens automatically or naturally, although funding for incarceration seems to have no such problem.  Kudos to the Southern Poverty Law Center for its tireless and never ending work to secure justice in a part of the country that isn’t interested in it.

* Kevin Drum artfully makes the case that the Donald Trump’s supporters are most motivated because they are angry white men (and more than a few women cut from the same cloth) sick of political correctness.

[F]or most people their real issue with it is that it forbids them from delivering casual slurs—that everyone knows are true—about blacks or women or Muslims or gays or whatever. They’ve been doing it all their lives, and they think it’s ridiculous that they have to watch themselves in public lest someone think they’re racists. Trump appeals to that sentiment. . . . At a gut level . . . they think “normal” American culture is under attack. . . . no one is even allowed to tell the truth about what this really means. Mexicans come pouring across the border but you get in trouble for just plainly saying what everyone knows: most of them are criminals and should be sent back. Muslims blow up the World Trade Center, but woe betide anyone who makes the common sense observation that we should keep a close eye on mosques because most of them are terrorist breeding grounds. Blacks commit violent crimes at higher levels than whites, but we all have to pretend this is only because whites have been keeping them down for so long. And if you make a harmless joke about some woman having a great body? It’s a compliment! But the feminazis will be all over you like bees in a hive.


Is it possible to change the hearts and minds of these people?  I’d like to think so, but I’m not sure what means would be most effective or how such a campaign could be financed.  Until we do, however, we are going to be stuck with powerful regressive cultural forces playing a powerful role in our political system.


from Wash Park Prophet
via Denver News

Remembering Arne Blomquist

His daughter, Kathy Blomquist, announced that my uncle, Arne Blomquist, died yesterday, an old man, although death always comes too soon.

My mother who died of breast cancer shortly after retiring, and my Aunt Kay, who died in middle age of M.S. that manifested itself while she was in college, have predeceased him, as did his sister’s husband, my uncle Dale, who died from a condition known as “Pick’s Disease.” He is survived by his wife, Mary, his sister Rose, his brother Roger and his brother’s wife Trish, his brother-in-law, my father, and his two daughters, Kathy and Chris, as well as nieces, nephews, other relatives on his wife’s side whom I don’t know, and a lifetime of friends, mostly in the Upper Peninsula of Michigan, in the Twin Cities of Minnesota, and in Tanzania.

It would be wrong to say he was my “favorite uncle”, for I have loved all of my uncles in their own ways. But, of my four uncles and five aunts, he was the one most similar to me who I understood best. Like my late mother, who was his sister, he was vigorously engaged in the world of ideas and cared greatly about the larger world beyond his own personal experience.

To a greater extent than any of his siblings (not unlike my father who grew up in similar circumstances in rural Ohio but then moved on to academia), he fully acclimated into cosmopolitan big city life in the larger world beyond his rural home as if he had been born to it. But, he was never a stranger to the place he grew up and always retained strong ties there.

He was an independent critical thinker who had a tendency to dominate discussions through intelligence, knowledge and force of will. It rankled him just a little sometimes, that my father was older than him, after he had spent his life being the eldest in a large family and the leaders of the Blomquist children, a position in which my lower key father never really challenged him in truth. He didn’t worry about offending people he thought were in the wrong, which isn’t to say that he lacked social skills. Far from it. He could and did lead people to get things done.

He was the oldest of the two boys and three girls who lived to adulthood in the family, all children of a lumber jack without a college education whose home grown potatoes and vegetables, as well as his fishing and hunting, made the difference between having enough food and not for the family. His father had had an arranged marriage, but Arne and all of the other children married chose their own mates for love. They grew up in a small house his father helped build himself from a mail order catalog design, with an outhouse, clothes that were dried on a clothesline in the back yard, a washing machine was a hand cranked wringer, and a party line rotary phone.  The house’s roof was (and still is) aligned with the North Star.

They were grandchildren of poor Swede-Finn immigrants who picked up only bits and pieces of the Swedish language used at home and at church (mostly expletives, aphorisms, and religious phrases, along with a few names of simple household things). But, he and the other children were, at least in adulthood, were in contact with many our Finnish relatives (the Finn’s a great genealogists, our family has roughly 100,000 relatives documented in privately prepared Finnish genealogies, a substantial share of the entire nation’s population and an even larger share of the particular region from which our ancestors emigrated; one is even a Finnish Knight in honor of his life saving work overhauling Finland’s water and sewer systems).

Despite tough economic circumstances, Felch in Dickenson County, where they lived, an hour from the nearest decent grocery store in Iron Mountain, has an idyllic character not unlike Garrison Keillor’s Prairie Home Companion radio show that I always related to as a child. Life seemed to revolve around coffee cake and weak brewed coffee after services at the local Swedish Lutheran church, the omnipresent forests of firs and birches that surrounded their homes and the lonely rural roads, and hunting stories. So far as I can tell, none of the family has ever perceived themselves as disadvantaged, even though they undoubtedly wanted for a great deal in their youth.

Still, four of the children, including Arne, graduated from college. Rose married young, stayed close to home and had four children in the world she grew up in where she still lives today, where her family has provided Felch and Dickenson County with pillars of the local community.

Arne made a comfortable living for himself and his family in an engineering business and then lost a great deal in a turn of business misfortune. He and his wife Mary paused to reflect and decide what he wanted to do with his life.  Then, they did it, reviving the business and leading a group of committed Minnesotan Lutherans to establish Tanzania’s first private university, which is affiliated with the Evangelical Lutheran Church in America (the mainline Lutheran denomination). They found books and professors, guided the students to literally make the bricks with which they then built its buildings, and as much as anything, provided know how and leadership free of the corruption that infects most African bureaucracies. Christian churches are powerful across sub-Saharan Africa, we learned, because they mobilize communities to take positive action and improve their parishioner’s lives.  During his time in Tanzania, he was a U.S. counsel, a position for which the main qualifications in this part of the world are a secure home to keep critical records about Americans and a stable familiarity with the community.  They built a grand cabin and Christmas tree farm in the UP to retire to in their old age, in substantial part with their own labor, the labor of their children and their children’s partners, and other family. Then, they persevered when much of it was destroyed in a fire, so that it is now usable again.

His two daughters have displayed similar initiative. He tried to teach them to hunt, although neither was very excited about it. Time sent working for Habitat for Humanity gave them valuable skills. Kathy became an engineer, restored multiple houses with her life partner Mike, and until just recently  when her job was relocated, worked for a Japanese company selling technical equipment. Chris married her high school sweetheart, college best friend and co-adventurer in life, also restoring homes along the way. Chris and her husband now make a living running a non-profit they established in college. Arne wouldn’t necessary have made or recommended some of the choices that his daughters made in life, but in the end, he respected their independence, their initiative and their prerogative to make their own decisions, so long as they carried them out purposefully and competently (which they did).

Arne suffered no fools, and understood what it took to make things happen and how the world worked in ways that most people only think they understand. He had a sharp wit until his psychologically agonizing final days when diseases of old age preyed upon this as well as his body over many years.  This was agony for those of us who loved him, especially Mary who always faithfully supported him and advocated for the best possible care for him sustaining him much longer, and much better in the quality of his life, than he would have managed otherwise.  We looked on helpless to prevent the inevitable, which finally arrived in fully, yesterday.  The slow progression of the ailments was painful for all, but it has also left us mostly as peace with the inevitable now that it has arrived.

We value the lessons that he taught us over the years, as much by example as through formal instruction. He taught us that you can make your own fate and are not a prisoner of your circumstances. He taught us that ideas and the greater world matter and that you should play a part in shaping that world. He taught us that physical assets and money are inconsequential in importance relative to your own human capital. He taught us that much can be accomplished with hard work, resourcefulness, know how and clarity of purpose. He taught us that having purpose in life and engaging with the world makes your life meaningful and worth living. He taught us how to raise children to be independent, self-directed and effective, yet caring, themselves.

We will all miss him sorely.

This remembrance is prepared solely from my own recollection and memories of my own family’s history, and if there are inaccuracies, I apologize. They are all mine.

from Wash Park Prophet
via Denver News

Yesterday’s Post-Debate GOP Presidential Race Poll

Post-Debate Poll (NBC) 

Trump 23% 

Cruz 13% 

Carson 11% 

Fiorina 8% 

Rubio 8% 

Bush 7% 

Walker 7%

Via a Facebook post.

Great news for Democrats, if true.

from Wash Park Prophet
via Denver News