Monthly Archives: May 2015

Specialized Judges, But for Whom Do They Work?

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Joel Shapiro faced an uphill battle when he fought the Securities and Exchange Commission in an Atlanta court last year.

The investment-firm chief executive came before an SEC administrative law judge who has never fully cleared a defendant. In August, the judge found Mr Shapiro had violated securities law, showing “reckless disregard” for his duty to investors.

Shapiro’s outcome isn’t unusual. Shockingly, neither is that SEC admin judge’s record. Appeal? Don’t bet against the house [emphasis added].

The odds are once more against Mr Shapiro as he challenges this ruling. His appeal will be decided by the SEC’s five commissioners, the same body that decided the case against him should go forward in the first place.

Indeed,

The SEC won against 90% of defendants before its own judges in contested cases from October 2010 through March of this year, according to the Journal analysis. That was markedly higher than the 69% success the agency obtained against defendants in federal court over the same period, based on SEC data.

There’s nothing wrong with using judges specialized in an aspect of the law: we get faster results that more closely align with the law and with justice. That’s what bankruptcy judges do, for instance.

Specialized judges though, regardless of their specialty, need to be Article III judges—judges who are part of that third branch of our Federal government, like bankruptcy judges—not Article II judges. An Article II judge—that SEC judge, for instance—is created by the Executive Branch, and he works for the agency bringing the complaint.

No, the critical item here is the judge’s employer. With the SEC, for instance, it’s an Executive Branch judge, an SEC judge, adjudicating a case brought by a part of the Executive Branch, the SEC. That’s like the cop bringing his own judge to traffic court. Or a Federal prosecutor bringing his own judge to criminal court.

Maybe Shapiro has a case, and maybe he’s guilty as sin. It’s impossible to say in an SEC court. Can you say, “Conflict of interest,” boys and girls?

Gun Control

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Or just control.

One guy, Cody Wilson, worked out a way to make pistols out of plastic and a 3-D printer, posted the information on the Internet, and tried to start a business out of the thing. Nothing secretive here; he wasn’t trying to hide anything.

The technology will break gun control. I stand for freedom[,]

he said.

But

…Wilson’s invention also caught the attention of the State Department, which came after him with both barrels blazing. The feds claimed Wilson violated the International Traffic in Arms Regulations, which “requires advance government authorization to export technical data,” and as a result, could spend up to 20 years in prison and be fined as much as $1 million per violation.

Wilson was ordered to remove the blueprints for The Liberator from his web site. The government also told him they were claiming ownership of his intellectual property.

Never mind that the “international arms trafficking” beef has no basis, unless simply identifying where firearms can be obtained and how to obtain them are somehow trafficking. Never mind that the “technical data” are old technology: 3-D printing is years old, and anyone can write a printing program. Nor is there anything magic about the plastic that is the printer’s ink. Indeed, that’s a major drawback for these 3-D weapons: they wear out quickly.

No, this is just an overreaching government trying to control for control’s sake. Nothing else.

A Proper Ruling

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And by Article III judges….

The Second Circuit appellate court has ruled in favor of individual liberty, privacy, and free speech all in one ruling.

[The Second Circuit] ruled Thursday the National Security Agency’s controversial collection of millions of Americans’ phone records isn’t authorized by the Patriot Act, as the Bush and Obama administrations have long maintained.

The Court held, in part,

…we hold that the text of [the law in question] cannot bear the weight the government asks us to assign to it, and that it does not authorize the telephone metadata program. We do so comfortably in the full understanding that if Congress chooses to authorize such a far‐reaching and unprecedented program, it has every opportunity to do so, and to do so unambiguously. Until such time as it does so, however, we decline to deviate from widely accepted interpretations of well‐established legal standards.

Indeed. The question is a political one and not a judicial one. It may be that Congress will screw this up and authorize the thing, but in that event we have recourse: we can fire the blackguards in an upcoming election and select, instead, representatives who understand our rights as free men.

The court’s ruling was based on one of the core questions regarding this law:

[T]he government takes the position that the metadata collected—a vast amount of which does not contain directly “relevant” information, as the government concedes—are nevertheless “relevant” because they may allow the NSA, at some unknown time in the future, utilizing its ability to sift through the trove of irrelevant data it has collected up to that point, to identify information that is relevant. We agree with appellants that such an expansive concept of “relevance” is unprecedented and unwarranted.

Sorry guys—no fishing expeditions, either.

The Second Circuit’s ruling can be read here.

Of Course He Is

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US Secretary of State John Kerry sought to secure a pause in Yemen’s war as he arrived in Saudi Arabia Wednesday to meet with the king and other top officials, citing increased shortages of food, fuel, and medicine that are adding to a crisis that already has neighboring countries bracing for a mass exodus of refugees.

What he didn’t say out loud was that disturbing the Houthis was disturbing his Iranian friends.

Uppity Junior Senators

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The Arkansas Republican‘s [first-term Senator Tom Cotton] tactics have drawn praise from his conservative supporters, but irritated some GOP colleagues when his moves have conflicted with their efforts.

And

Mr Cotton has drawn unusual attention, particularly for inserting himself into negotiations with Iran.

Possibly Republican (and Democrat) Senate old heads should be a bit less comfortable in their seniority roles and get a bit more comfortable in their own skins and with the requirements of their employment—their constituents’ instructions. The quality of ideas and of actions don’t stem from whom their authors are; they’re intrinsic in those ideas and actions.