"Where there is no vision, the people perish: but he that keepeth the law, happy is he."
-- Proverbs 29:18, King James Bible (KJV)

Friday, February 19, 2016

New York Times Editorial Board Wrong Once Again As Regards Apple, Inc. Failure to Abide by Court Order

What is it about the current New York Times Editorial Board that they sometimes seem so demonstrably misguided in their main editorials?

What has happened to the common sense of this group?

They have done it again in their editorial about Why Apple Is Right to Challenge an Order to Help the F.B.I.

One of the reasons that we do not subscribe to the NY Times is because we do not want to support this kind of errant thinking and surely well-meaning but clearly misguided newspaper publishing and editorializing.

What is the argumentative basis for the editorial? Is there any?!

In fact, the Editorial Board has a very weak position in thinking that it is UNREASONABLE to require Apple, Inc. to abide by the court order. The Editorial Board alleges that it would place an undue BURDEN on the giant commercial profit-making company that is rolling in cash.

Really? a BURDEN? More unreasonable than when the government compels a normal citizen to do any number of things ? that we do not list here, because everyone knows good examples of government compulsion.

Are the big guys exempt from obeying court orders? Not in our book.

We have read over past years in the mainstream media that Apple has more cash in the bank than even the U.S. federal government, which is no surprise. Apple pays virtually no domestic taxes, exploits labor overseas which would be contrary to child and other labor laws in the USA and stores its profits overseas, so that taxes do not have to be paid into the U.S. Treasury. Rather, the company is systematically plundering the nation.

All of that has not prohibited Apple at the same time from shamelessly using American legal infrastructure profusely to further its own profit-making ends, a costly endeavor paid for by your average and we think quite clueless taxpayer.

Just what "unreasonable" BURDEN is the Editorial Board talking about?

In fact, the editorial board has NO IDEA AT ALL how easy or difficult it would be for Apple, Inc. to abide by the court order, a fact which does not keep the writers of the editorial from engaging in all kinds of idle speculation about what Apple would have to do to abide by the court's order.

NONSENSE.

We think it very likely that Apple already has the technical means and knowledge on hand to obey the court order virtually immediately, but they refuse to do so, for greedy profit-making motives, that is all.

People do not sincerely think that companies on the scale of Apple, Inc. devise encryption methods that even they themselves do not know how to break, and even to accomplish that quickly. They know its ins and outs.

Obviously, any encryption method has to be tested thoroughly by a company before it is implemented. They know where and how to bypass the encryption, if necessary. There is always a back door -- in case something goes wrong, and a back door has to exist during software and hardware development, otherwise they would lock themselves out and could not finish the project.

Why not ask point blank just how much time it would take to comply with the court order and what it would cost -- with an honest answer demanded, and with perjury as the penalty for lying.

An "unreasonable burden" for Apple, Inc.?

Not on this planet.

Besides, a strong President of the United States could easily issue an executive order and nationalize the company Apple, Inc. for as long as it takes to comply with the court order, thus putting the company under government auspices and rendering any private Apple, Inc. contrary arguments moot. A strong executive has that power -- courts and legislatures notwithstanding.

There is a reason why outsiders are dominating the Presidential election process thus far. People are fed up with our weak political leaders and with a legal system that has lost all semblance of common sense.


A Question of Prestige: The ATL 2016 Top Transactional Law Firms by Pedigree of Law Schools (via Above the Law)

How can one measure the relative "prestige" of the top "big law" firms?

Above the Law has a list of The ATL 2016 Top Transactional Law Firms by Pedigree, which is a fancy way of saying that the top law firms are ranked more or less by the composite rank of the law school of attendance of a given law firm's "relevant" lawyers (see that link for more information about how law firms were vetted for eligibility in the rankings).

To make sure there is no misunderstanding, we note that Above the Law presents the calculation of the two ranking criteria used as follows:
"Median School Rank”: Median US News ranking of law schools attended by firm's relevant lawyers.
 “Mean School IQR”: Mean of middle 50% of US News rankings of law schools attended by firm's relevant lawyers.
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We were gratified to see as an alumnus associate of Paul, Weiss, Rifkind, Wharton & Garrison that the firm ranked in the top 10 (7th and 8th respectively) and that there was a definite cut-off point at position nine.

Is that kind of a ranking relevant?

We might say that we did something similar some years ago just for fun in privately assessing some of the nation's highest courts by the rank of the law schools of the judges, and, yes, there was a great deal of difference, for example, between the median rank of the law schools of the Justices of the U.S. Supreme Court as compared e.g. to the Federal Circuit, which wound up in relative mediocrity, which was what we were checking to confirm at the time.

Supreme Court Nominations and the Politicization of the Judiciary in an Era in which Laggards and "Half Truths" Hold (back the) Court

"Hold Court" or "Hold Back the Court"? What are the laggards up to?

Several years ago John M. Walker Jr., senior judge on the United States Court of Appeals for the Second Circuit, wrote a piece at The Atlantic titled The Unfortunate Politicization of Judicial Confirmation Hearings, which he began as follows, and his words ring quite true today:
"The nomination and confirmation process for federal judges is broken. It politicizes the judiciary, misrepresents the judiciary's role in our democracy, demeans highly qualified nominees, and unjustifiably delays or jettisons confirmations altogether. Such political theater trivializes a decision of considerable magnitude -- the lifetime appointment of a federal judge -- and has no hope of accomplishing its stated aim: the vetting of a candidate for the performance of the judicial function as it actually occurs."
The ignorant NEGLIGENCE with which the judicial selection process is being bantered about currently in political circles after the passage of Justice Scalia ignores a telling statement that Walker makes in that same article.

Walker criticizes the idea that the nomination and confirmation of judges should be made on the basis of the judge's political persuasion:
"[It is a position, says Walker, which] relies on the assumption that judges rule based on their political views (after nearly 30 years on the federal bench, I can say that this almost never occurs)."
A good example of the truth of that statement is the deciding vote cast on Obamacare by U.S. Supreme Court Chief Justice Roberts, a staunch conservative who nonetheless proved thereby that he is not a political puppet of some faction of some political party.

The trouble with U.S. politicians in our era is that they are not doing what they are supposed to be doing and are instead meddling in the work of the executive and judicial branches. This applies particularly to the members of Congress, a legislative body which has the job to legislate for the good of the nation and as far as possible, for the good of all Americans.

Too many Congressional legislators (LEGISLATION is THEIR job) want to play chief executive or judge (and spend a lot of their paid time doing so), while important legislation is neglected, or, as in the case of the ill-famed government shutdown, the legislators simply refuse to work altogether.

We call such people laggards, and they have no business being in public office.

This state of affairs will only stop when the voting populace starts to elect alternative candidates and reject the laggards, and as we see in the surge of Donald Trump for the Republicans and Bernie Sanders for the Democrats, that is beginning to happen.

A lot of smart people in the country, especially those in the political center -- and yes, we are political centrists, those who decide the elections -- are fed up with all of those laggards in Congress who are not doing the job for which they were elected, while the country is beset with manifold problems that need to be solved, but which are being neglected for political reasons.

The job of nominating a Supreme Court Justice is the job of the President of the United States.

The job of Congress is to confirm the nomination if the nominee possesses the requisite character, legal skills and knowledge to exercise that high office.

Whether the nominee thinks politically like "Half Truth" Senator Cruz, for example, is irrelevant, though, God forbid, we could all pray that she or he does not. Amen.

The Upshot at the New York Times in Where the Senate Stands on Nominating Scalia’s Supreme Court Successor has a list of Republican and Democratic Senators showing their attitude toward whether President Obama in this election year should at all nominate a Supreme Court Justice to replace the deceased Justice Scalia. All 46 Democratic Senators said "yes", while 30 of 54 Republicans said "no", although some of those have since changed their mind, hopefully realizing the Constitutional absurdity of their position.

Nevertheless, 30 or fewer laggards wallowing in "half truths" is way too many in a Congress that needs to get back to work and do THEIR job.