Monday, May 23, 2011

A Republican Judge Judges

Steve McEwen. Not Even Dicta. Warminister, Pa.: Neibauer Press, 1997.

The author, who was Pennsylvania’s Superior Court President Judge, learned his father (who was a lawyer who passed the Bar without a college or law degrees as rules then allowed years of employment by an attorney count as eligibility to take the Bar exam) that It is important in court to know the facts and to know the judge. It is important to know how a judge acts and thinks in the courtroom. This does create “judge shopping” among trial lawyers.

This book presents keys to the author’s judicial thinking. He agrees that employers usually have an economic advantage over employees. This is why the legislature creates workers compensation and human relations laws to create more equity between the two parties. He cautions against going beyond correcting the economic inequalities. He urges the legislature to correct imbalances where delays in health care for workers compensation recipients may unduly benefit insurance companies.

The author notes the Pennsylvania legislature has approved 18% interest rates for bank loans and 25% interest rates were approved in Ohio. Prior, this would have been considered gouging.

McEwen believes the lemon law should pertain to someone leasing a malfunctioning vehicle, even though the legislature wrote that the law is for the vehicle’s “purchaser”.

McEwen believes children and not just spouses should be able to receive compensation for less of a parent. The legislature agreed when it enacted the Family Preservation Act in 1989.

McEwen believes it is poor public policy where HMOs attempt to restrict medical attention. This denies people proper medical care when their care is determined by insurance administrators and accountants.

A warning is given that corporate officers often create a legal veil in order to avoid paying recovery to injured parties.

A child has a human right to avoid traumatic cross examination when testifying as a victim of sexual abuse, McEwen argues. When such testimony would traumatize a child, this should be a permitted exception to hearsay.

Trial by jury has throughout time proven to be the best method to decide court cases, McEwen notes.

Equal justice must also preclude keeping African Americans off on juries, McEwen argues. He notes some prosecutors do so because they believe African American jurors may be less prone to convict. McEwen believes it is wrong to exclude jurors solely by race.

McEwen notes the shame of someone who committed a crime after having a lawful career can itself be a punishment as well as the legal punishment that is given. A mitigating circumstance is when a repeat offended commits another crime. McEwen observes.

McEwen believes it is proper for a judge to have more regard for a protestor admitting guilt then someone who broke a law for gain. It is proper to consider the character of the accused.

McEwen cautions the FBI to avoid oppressing people they investigate. Someone should not be sentenced more harshly just for refusing to become an informer. Informers may distort investigations as they have incentive to state what investigators hope they will state.

McEwen believes the Racketeering Act logically applies to racketeers. He cautions against stretching that definition.

Punitive damages must reflect the outrageous behavior that caused the damages, McEwen asserts. This has not always been the case as some awards have been too low to be considered punitive.

A Press Council should exist for self examination of the press, McEwen declares.

The presumption of innocence must rule over the appearance of impropriety, McEwen notes. There has to be an actual wrong act proven.

McEwen argues a child should not be placed with a natural parent who consistently has shown an inability to care for the child. Termination of parental rights should consider the child’s best interests.

Non-violent civil disobedience is far preferential to violent disobedience. The author notes Martin Luther King’s descriptions of non-violent protest throughout American history.

An accused person’s lawyer has no right to obtain legal fees for forfeited bail money, McEwen claims. To do so would benefit the fugitive and could encourage future fugitive attempts.

McEwen does not believe that a very hazardous activity that may harm a small proportion of a community should be allowed just because it would benefit the entire community.

McEwen argues that a legal system that can decide property control of an incompetent should also have similar ability to consider terminating life sustaining measures for an incompetent person.

Prosecutors may prosecute with fervor so long as they stay within the rules of the Bar Association Prosecution Standards, McEwen notes. Misconduct by prosecutors should be sanctioned.

McEwen proposes that due process and judicial fairness should apply to witnesses.

The tort of medical injury to a fetus should apply in cases of still births, McEwen argues. While it may be hard to prove a medical injury caused the still birth, that by itself should not preclude the possibility of a tort. It is noted the law prevents recovery of pecuniary loss of lifespan earnings which is available is cases of live births with medical injuries.

McEwen notes the state Supreme Court ruled that statutes of limitations are to be liberally construed to protect the accused. Further, it is law that a new law is not to be retroactive unless the legislature clearly intends it to be so. Thus McEwen ruled that a law enacted in 1992 did not apply to crimes committed before its enactment.

McEwen cautions that the Judicial Inquiry Board can’t presume to reach conclusions that differ from a jury’s findings Doing so would be against our judicial process.

The author notes judges tend to demonstrate civility to other judges in their judicial decisions.

Wednesday, May 04, 2011

Republicans Seek to Protect their Lobster Dinners

Ted Danson with Michael D’Onse. Oceana: Our Endangered Oceans and What We Can Do to Save Them. New York, N.Y.: Rodale, 2011.

This book was on the dangers to our oceans. Offshore drilling is threatening oceanic species, including many of the fish we consume. 90% of “big fish” species have disappeared over the last 60 years.

Of all of the living space on Earth, 1% is one land and 99% is in water. Aquatic life is threatened by human activities. For example, chemical runoff into Lake Erie has made is such aquatic life can’t survive. Despite famous oil spills, such as the Exxon Valdez spill in 1989 and the 171 million gallon spill in 2010 into the Gulf of Mexico, we have been slow to have a sustained reaction that creates better protections of our waters.

The U.S. is the largest petroleum consumer, urging (in 2008) 19.5 million barrels of petroleum daily, followed by China at 7.8 million barrels.

“Minor” mishaps spill 15 million gallons of oil annually in North America. In addition, toxic chemicals used in the drilling process place 90,000 tons of toxins in the lifetime of a rig into the water, as measured by rigs in the Gulf of Mexico.

The book recommends decreasing fossil fuel consumption, less vehicle driving, more mass transit use, more electric or hybrid vehicles, and fewer petroleum based cosmetics.

Oxygen levels, required for aquatic life, are decreasing in oceans. The levels besides southern California have fallen almost 20% over the past quarter century. A fifth of the oceans are oxygen dead zones.

The ocean’s ability to process carbonic acidity is decreasing. This is killing aquatic life. Almost 30% of all tropical reefs have disappeared in the last three decades. This upsets the ecosystem as about a quarter of all marine life relies on the coral reefs.

Overfishing is occurring. It is feared we could lose many of the fish species we consume within decades. The numbers of sharks have decreased by 90% and cod 70%. The authors call for an end to high seas fishing by bottom trawling which captures more than intended.

The damaged ecosystem is seen to be afflicted with more diseases, infections, and parasites affecting aquatic life. The author call for scientifically determined fishing limits, ending fisheries subsidies, and penalizing catching the wrong fish species.