How Offensive Can They Get?

Apparently, pretty offensive. The Los Angeles Times ran an article today on John McCain. They questioned whether he should be elected because he receives a disability pension. As Ralph Vartabedian writes,

The fact that he is legally designated with a disability pension may raise further questions.

"It is a legitimate question to ask about the commander in chief: Is he fit to serve," said Robert Schriebman, a senior Pentagon tax advisor and tax attorney who recently retired as a judge advocate for a unit of the California National Guard.

Isn't that nice. McCain is not fit to serve because he has a disability pension from the U.S. government as a result of wounds he sustained while serving in combat.

Mr. Vartabedian, not content to say that a person suffering from a disability should not serve as the President, then argues the other way. He puts forth the idea that if he is receiving a disability pension, then why is healthy enough to hike the Grand Canyon.

Now, McCain apparently receives a pension that falls into the category of "combat-related special compensation." Military.com has a good explanation of what it means. Simply put, it looks like McCain definitely qualifies. He served more than twenty years in the U.S. Navy (1958 through 1981); has a VA disability rating of greater than 10%; and presumably receives military retired pay; and the military retired pay is reduced by VA disability payments. As a result of his injuries sustained when he was shot down by enemy fire, he had to spend the better part of a year in rehab once he was finally released by the North Vietnamese. It looks like McCain's disability would be covered by 38 U.S.C. section 1114. Judging on what they say happened to him, multiple fractures which were essentially unattended, it sounds like he fits all the definitions of disabled. Like him or not, agree with his politics or not, but the man sustained some serious wounds.

Apparently, to Mr. Vartabedian, in order to receive disability payments, one must be completely disabled and unable to do anything but sit and vegetate. Unfortunately, that's not how disability payments work, even when the rating in 100%. Even if it was simply a civil determination of disability, he would probably still qualify as disabled. In California, the standard is whether the condition impairs a major life activity (i.e. blindness, certain chronic illnesses, etc). Would Mr. Vatabedian suggest that some who is, perhaps legally blind, is not fit to serve as the Chief Executive?

But apparently Mr. Vartabedian seems to have forgotten that perfect health is not a pre-requisite to being the President of the United States. If it was, we never would have had one one of the greatest presidents in our history, Franklin Delano Roosevelt, nor one of the most popularly rememebered, John F. Kennedy. (Not to mention Woodrow Wilson who may have suffered 3 strokes prior to becoming president, or Dwight David Eisenhower who had Crohn's as well as suffering a heart attack while in office.)

FDR suffered from polio, hypertension, heart disease, left ventricular cardiac failure, and bronchitis when he began his campaign in 1944. He was in a wheel chair! And he fought to restore the national economy during the Great Depression and then orchestrated the alliance which destroyed Facism (which in 1941 was poised to eliminate freedom, democracy, and anything else which did not appeal to Herr Hitler, Mussolini, or the Japanese Empire).

JFK had a bad back, partly due to his service in the U.S. Navy during the Second World War. In fact his back problems were so bad, he had to wear a backbrace. He also suffered from colitis, Addison's disease, prostatis, and possibly an untreated venereal disease. The list of medications which he regularly took is said to include: cortisone, lomotil, paregoric, phenobarbital, testosterone, trasentine, Tuinal, and amphetamines. And he did not do too bad a job running the country despite the fact that healthwise, he was complete disaster.

Like him or not, don't judge McCain on what you may think you might know about his health. That is just fear mongering from a politically motivated hack. Look at the candidates, all of them, to make your decision.

A person suffering from a physical disability may not be able to do everything the rest of the "non-disabled" world can do, but they can still do a lot. And given what we already know about McCain's health, there is nothing to say that his condition would leave him unable to function if elected as president.

And if you want to see a less restrained take on this, here is another view.

And They Might Even Get Away With It...

As you may recall, I wrote a little about the EPA's inexplicable denial of California's request for a waiver under the Clean Air Act. This waiver would have allowed California to increase its air quality requirements. California has, as expected, filed suit against the EPA seeking to overturn the agency's decision.

In the interim, however, something may have changed. That something would be the concept of federal preemption.

Now, as every law student who has finished their first semester of Constitutional Law can tell you, federal preemption means that the laws of the United States (both the Constitution and those passed by Congress) are the supreme laws of the land. When state regulations come into conflict with Federal laws or regulations, the Federal rules prevail. Now, that is the simple version. The more complicated version of preemption is whether the Federal law actually meant to completely preempt the states from introducing additional legislation which would enhance the Federal law.

Tucked away within the new fuel standards, which the EPA is basing its refusal upon, is a provision which says that individual state attempts to regulate tailpipe emissions are an impediment to the Federal standards. Therefore, they are specifically pre-empted by the rule. Another instance of Federal preemption by rule-making.

Now, there has been an argument that preemption by rule, especially where the statute is silent on the issue, is improper. Not only may this be improper, but the agencies undertaking to preempt by rules are ill-equipped to to police the products or areas which they have essentially deprived states or individuals from having any jurisdiction to act.


The only problem with this argument, is that it seems to be losing one. Between the time that the EPA rejected California's application and today, the Supreme Court handed down the decision in the case of Riegel v. Medtronic.

In Reigel, Riegel underwent a surgery which required the use of a catheter for his heart. Unfortunately, the catheter was defective and failed. What should have been a fairly routine procedure to treat an myocardial infarction required Riegel to be placed on life support and subjected to a second surgery, an emergency coronary bypass surgery. Among the causes of action alleged in their complaint, filed in U.S.D.C for the Northern District of New York, were claims based on New York state law. New York state law has a higher standard for medical devices.

Medtronic defended on the grounds that the Riegel's case was barred because of the Medical Device Amendments of 1976. Specifically, Medtronic argued that because the FDA had approved the design, there could be no causes of action for strict liability, breach of implied warranty, negligence in design, or negligence in manufacturing. The reasoning for this was that the FDA had already reviewed the product, put it through tests of its own and passed it in a form which the FDA's tests have shown will make the product safe and effective.

So how does this relate back to California's case against the EPA? Well, the first things that defending attorneys like to do is try and knock a case out without ever reaching the merits. Especially when on the merits, it looks like the EPA abused it discretion to grant or not grant a waiver to the State of California. A fair reading of a the Riegel decision could be extended to California's suit against the EPA.

The rationale, however, may break down because the factual situation is slightly different. The Clean Air Act, which is the law which establishes federal minimum for air quality, gives that job to the EPA. However, the EPA is relying on a regulation which has been promulgated by the National Highway Traffic Safety Administration. This is important because really waht the NHTSA deals with are cars, fuel efficiency, and attendant safety issues. Their own mission statement states, "Our Mission: Save lives, prevent injuries, reduce vehicle-related crashes." On the other hand, the EPA is supposed to be about environmental regulation.

The Riegel decision was premised, in part, on the fact that FDA is the agency which is ultimately supposed to be responsible for medical devices. They test them. They approve them. They have statutory authority for them to regulate. Completely unlike the situation that exists here. Right? Well, then we get into a conflict between the statutes. And depending on how the statutes are interpreted by the courts, they could come to the opinion that one takes precedence over the other or that both should be given equal reading because they are not mutually exclusive when it comes to this issue.

However, the Bush Administration, in its effort to fight torts has been pushing this agenda, so I would not be surprised to see the argument made that California is completely preempted by the NHTSA's regulation.

Then again, maybe I am just looking for problems where there are none to be had. Perhaps this will go as it should, just as it was predicted by the EPA's own in-house legal department.

Don't Blame Me All I Did Was Took A Test

You Are Destined to Rule the World

You have the makings of a very evil dictator... Which is both kind of cool and kind of scary! Will you rule the world? Maybe. Maybe not. But at least you know that you could.

Are You Destined For World Domination?

Ranting About ADR

I really hate ADR. It's that simple.

For those who don't know, ADR stands for Alternate Dispute Resolution. At law, it usually means either arbitration or mediation. As someone who was brought up to believe in the jury system, the idea of letting a single person given the august title of "Arbiter" decide the fate of someone's claim has always been an anathema to me. It just feels wrong. I don't buy the bull-frell that people peddle that arbiters can be truly neutral. Its like saying Justice Scalia or Justice Ginsburg are never blinded by their personal agendas when it comes to the law. That's why the Supreme Court has more than one judge sitting on it.

Then there is mess that is mediation. Now, to be fair, I think that in some cases it might be a good idea. To my mind, those cases are limited almost exclusively to the Family Law setting where a neutral go between might be able to fashion a compromise that both sides might hate in equal parts. But judicially ordered mediation in civil cases, to my mind, is a violation of the Eighth Amendment's ban on cruel and unusual punishment.

Why is that? Because if you have taken the time to hire a lawyer, file the complaint, and push through with discovery, odds are the relationship is as hostile as a disintegrating marriage. At least with a divorce, there was a time when there were good feelings (even if it was only the wedding day).

So the courts, because someone has sold them on the idea that it will be beneficial, has made it a component of court cases in California. The problem is, from my perspective, is that it just drives up the cost of prosecuting or defending a case. You have to hire a neutral, since the courts don't want to clog up their judges acting as neutrals. That in turns requires vetting a variety of people, doing your research into them, and trying to get the other side to agree to one of the people you like. Then there is the arguments over who pays what.

In the case that I am currently being forced to mediate, I have spent almost as much time trying to get the other side to agree to anyone as I am going to spend in actually drafting mediation brief and mediating the damn thing. Essentially, this is turning into a huge boon for the defense since they get to put off the day of judgment. Mediation is not going to work in this case. The two parties are so far away on this case that they may as well be on different planets.

I frakking hate ADR.

And People Still Think This Man Is Worth Listening To?

He writes a book asserting that a functional democracy is an apartheid state.

He lies about who gave him the basis for his charge of that this democracy is an apartheid state.

He refuses to submit his position to a debate public debate.

He also states that a nation which is under attack (via rockets, suicide bombers, and gunmen) does not have any legal or moral justification to defend itself.

Now, he is back in the Middle East, trying to do... what the stated purpose is I am not sure. All he seems to be doing is trying to add legitimacy to Hamas, Islamic Jihad and a variety of terrorist groups.

Thanks former President Carter. Please go back to Georgia and stop giving aid and comfort to these outlaws.

More of My Dancing WIth The Star Madness

Well, Presley is gone. And thats not a bad thing. She started off so strong, but she just could not let go and dance. In her last dance, the Rumba, she just looked so scared to just go with it.

If it was up to me, the audience would knock out, in the following order, the next contestants: Cristian De La Fuente (he makes Cameron from last season look manly), and Marlee Matlin (inspiring yes, but when not in hold with her partner, she is lost).

After that, for me, the stars who should go gets a little questionable. In my opinion, the second tier of competitors this season are Shannon Elizabeth, Mario, and Marissa Janet Winokur.

On the one hand, I think that Elizabeth has more potential, but her cardio is going to kill her when they get to the two dances. No one should be that out of breath after every dance. Even Marie Osmond only collapsed once.

Winokur brings spunk and all that good stuff, but she just, to my eye, does not look to have the "it" to make it to the finals. Then there is Mario. He can dance, but like judges said last night, he just does not have the technique down. Maybe he could pull of a change in the coming weeks, but he just has not shown it. With time ticking away, if he does not pull off a really flawless performance, I can't see why he should make it to the finals. Of this second tier, I would say that it will probably go, in order of exits: Winokur, Elizabeth, and Mario.

Now, the people who should make it to the finals, namely Kristi Yamaguchi and Jason Taylor. Yamaguchi just keeps hitting every mark that Mark puts out there. She even managed to convince me that she was into Mark for a few seconds last night. Sometimes, when she is doing some of the more intricate moves, its almost as if her body says "Oh yeah, I remember doing this on skates" and it all just flows so easily for her.

As I thought in the begining, her main competitor is Jason Taylor. He is going to take so much grief from his teammates when training camp starts this year (on the other hand he will probably reply "Yeah, well I had Edyta wrapped around me!"), however, he listens to his partner. And she, so far, has not lead him wrong. He may not be Mr. Romance, but damn if he doesn't get those long legs and huge feet where he is supposed to. Plus, he had more hip action going than either Elizabeth or Preseley this week!

If Yamaguchi and Taylor meet up for the finals, this could go completely down to the free-style. Oddly enough, I do not think that the free-style will play to their strengths.

Congrats to a Tenant Attorney

After two days of trial, plus another in settlement conferences, a local (San Francisco) attorney, Mary Catherine Wiederhold, won a victory for her client. The opposition was Trophy Properties (a subsidiary of CitiApartments).

This was an unlawful detainer case based on a non-payment of rent. The rub was this: the month that the defendant was alleged to have failed to pay was more than nine months prior to the service of the 3-Day Notice to Quit. The defendant stated that she had previously paid the rent for the month in question and that the unlawful detainer was only filed against her because she had called San Francisco's Department of Building Inspection in order to compel the landlord to make needed repairs. At trial, the defense won the case on an nonsuit, resulting in the court dismissing the case with prejudice.

Congrats to Ms. Wiederhold!