Having The Same Argument, Again.

[PresentTense Pirate Penske]

Originally Posted by Cletus Miller

So ... what? We don't need to worry about it until 10-15 years from now? VERY comforting.

Can't we just pull an all nighter the day before it runs out and cram a solution to the problem??? that's how I got through college, law school, the bar and more than a few deals and it always worked for moi............

[Atticus Grinch]

LWOP is cruel and unusual for some people but not others. The Court's 7th Amendment jurisprudence is now as unmoored from the language of the amendment as substantive due process is from the 5th. AFAIK, there is no constitutional guidance on what constitutes a juvenile.

[Greedy,Greedy,Greedy]

Originally Posted by Atticus Grinch

LWOP is cruel and unusual for some people but not others. The Court's 7th Amendment jurisprudence is now as unmoored from the language of the amendment as substantive due process is from the 5th. AFAIK, there is no constitutional guidance on what constitutes a juvenile.

Did you read the case?

You will find in the case these things called "citations". There is often a number followed by "U.S." followed by another number. That is a citation to a Supreme Court case. There is usually a name in italics preceding that. That is the name of the case. These "citations" tell you where cases are with jurisprudence supporting the points made. For example, if you are looking for guidance from the Supreme Court on what constitute a juvenile, the Court keeps talking about Thompson, and, lo and behold, there are numbers and a U.S. after Thompson. You can look at Thompson here. Now, I just turned that particular citation into a link, and I know you know what those are. Start there. It's a pretty good place. But they cite more cases on it, and Thompson itself has a few citations.

[Sidd Finch]

Originally Posted by Atticus Grinch

LWOP is cruel and unusual for some people but not others. The Court's 7th Amendment jurisprudence is now as unmoored from the language of the amendment as substantive due process is from the 5th. AFAIK, there is no constitutional guidance on what constitutes a juvenile.

Assuming you mean the 8th amendment, how would you go about mooring jurisprudence to this language: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

[Greedy,Greedy,Greedy]

Originally Posted by PresentTense Pirate Penske

Can't we just pull an all nighter the day before it runs out and cram a solution to the problem??? that's how I got through college, law school, the bar and more than a few deals and it always worked for moi............

Can we get you working on the oil spill?

[Cletus Miller]

Originally Posted by Atticus Grinch

LWOP is cruel and unusual for some people but not others. The Court's 7th Amendment jurisprudence is now as unmoored from the language of the amendment as substantive due process is from the 5th. AFAIK, there is no constitutional guidance on what constitutes a juvenile.

Did you mean to cite U.S. v. Comstock as the comparison?

[sebastian_dangerfield]

Originally Posted by Tyrone Slothrop

This is a great column by Ross Douthat:

This is excellent. And it can be extended far beyond the targets Douthat cites. Michael Lewis' lackluster The Big Short has a great line where a trader realizes, very late in the subprime crisis, "Holy shit. Ken Lewis is an idiot." That's hyperbole, of course, but it does underscore something insidious about "too big too fail" entities on which the debate has been insufficiently focused. TBTF often also means, "too big to think," or "too big to adapt." David Brooks called out Elena Kagan for being a technically intelligent non-decider last week. I'm not sure whether she is or isn't, but the sort of "wind up doll" corporate yes men he was criticizing are what you get in a nation filled with massive corporations (and their endless hierarchies) rewarding limited technical proficiency (we've seen this in law like crazy, with goofballs who can parse cites and arcane language, and fight over minutia, providing little, if any value in the process) and unthinking conformity.

In a nation of Wal Mart sized corporations, what else would we grow but "herd" thinkers? Why wouldn't a kid go to school and learn to:

1. Get a degree from a great university so he can "brand" himself best on a resume; then
2. Work proficiently enough in a corporation to be promoted to middle management; and
3. Remain as inoffensive and cooperative as possible to maximize his chance of being considered a "safe, dependable" candidate for a top slot.

We wonder why we keep running into the same wall, pulling back and then running headfirst into it again? Because most of us are trained to run on tracks, like fucking sled dogs. And the fault lies with two entities:

1. Higher education (kids learn to become test takers, to look intelligent, rather than actually solve problems);
2. Corporate training (we learn its better to be wrong in the crowd than right alone... well, unless you're a hedge fund manager).

The best hope for this country right now is that kids getting out of school can't find jobs in big corporations. Perhaps we'll actually have some (non-financial industry) innovators in the economy again.

[Atticus Grinch]

Originally Posted by Greedy,Greedy,Greedy

Did you read the case?

You will find in the case these things called "citations". There is often a number followed by "U.S." followed by another number. That is a citation to a Supreme Court case. There is usually a name in italics preceding that. That is the name of the case. These "citations" tell you where cases are with jurisprudence supporting the points made. For example, if you are looking for guidance from the Supreme Court on what constitute a juvenile, the Court keeps talking about Thompson, and, lo and behold, there are numbers and a U.S. after Thompson. You can look at Thompson here. Now, I just turned that particular citation into a link, and I know you know what those are. Start there. It's a pretty good place. But they cite more cases on it, and Thompson itself has a few citations.

I didn't say it had happened all at once. But the "national consensus" standard from Kennedy v. Louisiana now applies to the harshness of sentences other than death, which means that the seriousness with which crimes are punished is now a nationalized policy. If California wants to punish the bejeezus out of hate crimes, must they show that their sentences do not fall outside the "national consensus"?

Thanks for the link to Thompson, but as I'm sure you noticed, it doesn't define juvenile for purposes of constitutional law -- it just identifies a then-existing national consensus with regard to the DP, and that age was, if I read the case correctly, lower than 18 in many states. Can a state redefine juvenile as younger than 16 and give jury trial rights and impose all sentences other than DP or LWOP? Thompson doesn't say, but you'd better bet that all defense attorneys will be contending that all imposition of juvenile sentences in all but a few states is harsher than the national consensus, if only to preserve the issue for appeal.

[Atticus Grinch]

Originally Posted by Cletus Miller

Did you mean to cite U.S. v. Comstock as the comparison?

Comstock is also wrongly decided. Civil commitment is not an enumerated power. The founders would be aghast. IMHO.

[sgtclub]

Interesting . . .

Bond Market's Big Movers Are Skeptical of Greece, Other Weak Governments


More from MarketWatch.com:

• The Second Debt Storm

• Is U.S. Treasury Debt Still the World's Safest Investment?

• Greek Bailout Makes No Sense in Any Language


The bond vigilantes are on the attack, and Greece may be only their first victim.

The world's most powerful bond investors have lost patience with governments that threw a public-sector party with money borrowed on the cheap and now are scrambling to pay debts and provide for their citizens.

Greece, with its cooked books and spendthrift ways, was an easy target for the vigilantes' guns, but Spain and Portugal also are under fire, and the bond-market masters are keeping a close eye on how the U.K. handles its finances. In fact, no government appears safe, not even the U.S.

"There's a tremendous clash between the bond vigilantes on one side and reckless governments on the other," said Ed Yardeni, president of Yardeni Research, an independent global-markets strategy firm. "The bond vigilantes are trying to establish some fiscal and monetary law and order."


More from Yahoo! Finance:

• Is This the End of the Euro?

• Deutsche Bank CEO Says What No One Else Will: Greece Is Toast

• Fears Intensify That Euro Crisis Could Snowball

--------------------------------------------------------------------------------
Visit the Banking & Budgeting Center


Who, or what, are "bond vigilantes?" They are the bond market's heavy hitters, taking fiscal policy matters into their own hands. Yardeni coined the term in the summer of 1983, when Treasury holders smacked the U.S. over high deficits. Yardeni recognized these hedge funds, mutual funds, pension funds and other institutional investors as a fearsome mob, ready to pillory profligate politicians and lax central bankers.

"If the fiscal and monetary authorities won't regulate the economy, the bond investor will. The economy will be run by vigilantes in the credit markets," Yardeni noted then.

'Intimidate Everybody'

Bond vigilante justice had its greatest reach in the early 1990s, when the Clinton Administration bowed to pressure over federal spending. Clinton adviser James Carville famously quipped at the time that he'd like to be reincarnated as the bond market, because "you can intimidate everybody."

Today, a new breed of bond vigilantes has saddled up. Using leverage and rapid, electronic trading, these buyers and sellers shoot first, ride on and don't look back. Their blunt message to governments: Clean your fiscal house or pay bondholders more for the money you need -- that is, if you can get it.

In addition to slipshod governments, vigilantes vilify the credit-rating agencies, which grade bonds' quality and risk, for failing to do their job properly.

Bill Gross, the co-chief investment officer of U.S. bond powerhouse Pimco and manager of the world's largest bond mutual-fund, Pimco Total Return blasted the rating services earlier this month, mocking Standard & Poor's Inc. for downgrading Spanish government debt one notch to AA and warning Spain of another possible downgrade.

"Oooh -- so tough!" Gross wrote with undisguised sarcasm in his May monthly commentary. "And believe it or not, [rating agencies] Moody's and Fitch still have [Spain's debt] as AAAs. Here's a country with 20% unemployment, a recent current account deficit of 10%, that has defaulted 13 times in the past two centuries, whose bonds are already trading at Baa levels, and whose fate is increasingly dependent on the kindness of the [European Union] and the [International Monetary Fund] to bail them out. Some AAA!"

European leaders tried to downplay these bond-market assaults. After snubs from the European Central Bank and the EU, the vigilantes cracked their whip, savaging Greek, Spanish and Portuguese government debt and raking the euro, which is still under strain.

European politicians and policymakers, fearing the vigilantes could spark a continent-wide meltdown in credit and stocks, hastily cobbled a $1 trillion rescue package with IMF help that's being called "Euro-TARP," in reference to the Treasury rescue hatched in late 2008 to contain the U.S. financial system's meltdown.

Bridging the Gap

Does Euro-Tarp placate the vigilantes? For the moment, perhaps, but not for long.

"Markets stop panicking when policymakers start panicking," wrote Michael Hartnett, chief global equity strategist at Bank of America Merrill Lynch, in a recent report on Europe's market turmoil.

"Bond-market vigilantes are glad that something was done, but clearly everything hasn't been resolved," added Zane Brown, a fixed income strategist at investment manager Lord Abbett. "If the EU thinks it's all one big, happy family, the vigilantes are telling them there are clear differences among EU members."

Those differences seem to resonate louder with European officials. Bridging the gap between the richer and poorer economies of the euro zone is a key to stabilizing the common currency, and a concern that German Chancellor Angela Merkel addressed this weekend.

"We've done no more than buy time for ourselves to clear up the differences in competitiveness and in budget deficits of individual euro zone countries," Merkel was quoted as saying on Saturday. "If we simply ignore this problem we won't be able to calm down this situation."

Indeed, while the Euro-TARP may be more stop-gap than solution, the EU is betting it will keep Greece from defaulting on its debt and act as a firewall against contagion.

Spain and Portugal, for instance, aren't waiting around; their governments are cutting public-sector wages and raising consumption and corporate taxes, with further and sharper austerity measures expected.

"Spain and Portugal saw what would happen, and they started acting," said Roger Aliaga-Diaz, a senior economist at mutual-fund giant Vanguard Group.

Added Yardeni, the market strategist: "Portugal and Spain have been given a stay of execution."

The bond market, meanwhile, is, in a word, vigilant. Pimco executives stated in April that the firm is investing in countries with stable debt, including Australia, Brazil, Canada and Germany, and have shunned Greece, Spain, Portugal and other countries on the euro zone's periphery -- known as "Club Med" or, more derisively, "PIIGS."

Moreover, there's growing apprehension that Europe's massive bailout will stoke inflation, crush the euro, and threaten the region's stalwarts. The feverish rush to own gold is directly related to investors' anxiety that the cost of rescuing Greece and other Mediterranean countries from default, coupled with stimulus spending in the U.S. and other developed nations, will wash the world with money and lead to inflation and higher interest rates.

"Policymakers are now forcefully using the balance sheets of the EU (ultimately Germany) and ECB to compensate for the debt excesses in the periphery (particularly Greece) and the related overexposure of European banks, Mohamed El-Erian, Pimco's chief executive, wrote in a mid-May commentary.

"An even larger use of central bank balance sheets, if it were to materialize, would provide only a temporary respite," added El-Erian, who shares the firm's chief investment officer title with Gross, "and the collateral damage and unintended consequences would be serious, including the impact on inflationary expectations."

Muscles flexed, bond vigilantes are also turning their sights on the U.K. and the newest resident of 10 Downing Street. "The bond vigilantes are going to see whether this new government, without a majority in Parliament, is going to be able to cut spending and the deficit," Yardeni said. "The U.K. may be next in line for some discipline by the bond vigilantes if the policymakers can't get their act together soon enough."

In some ways, though, Europe's sovereign debt crisis is a problem of the bond-market's own making. Consider that in March 2005, 30-year Greek bonds commanded a yield just 0.26 percentage points over considerably higher-quality German debt of similar maturity, where in a pre-euro world, the spread was expressed in double-digits. It's no stretch to say that bond buyers wrote a blank check to Greece and other questionable sovereign borrowers, which spent that money with a "play now, pay later" attitude.

But while there may be blame enough to go around, the situation is well past the tipping point.

"The vigilantes are going to keep all of this on a very short leash," said Marilyn Cohen, president of Envision Capital Management, a Los Angeles-based bond-investment manager. "They're emboldened and they juiced up rates on Greek debt until it was excruciating. They've slammed the euro until everybody is questioning its viability. This is going to be a market thriller, and I don't mean that in a good way."

Jonathan Burton is MarketWatch's money and investing editor, based in San Francisco.
Copyrighted, MarketWatch. All rights reserved. Republication or redi

[Hank Chinaski]

Originally Posted by sebastian_dangerfield

This is excellent. And it can be extended far beyond the targets Douthat cites. Michael Lewis' lackluster The Big Short has a great line where a trader realizes, very late in the subprime crisis, "Holy shit. Ken Lewis is an idiot." That's hyperbole, of course, but it does underscore something insidious about "too big too fail" entities on which the debate has been insufficiently focused. TBTF often also means, "too big to think," or "too big to adapt." David Brooks called out Elena Kagan for being a technically intelligent non-decider last week. I'm not sure whether she is or isn't, but the sort of "wind up doll" corporate yes men he was criticizing are what you get in a nation filled with massive corporations (and their endless hierarchies) rewarding limited technical proficiency (we've seen this in law like crazy, with goofballs who can parse cites and arcane language, and fight over minutia, providing little, if any value in the process) and unthinking conformity.

In a nation of Wal Mart sized corporations, what else would we grow but "herd" thinkers? Why wouldn't a kid go to school and learn to:

1. Get a degree from a great university so he can "brand" himself best on a resume; then
2. Work proficiently enough in a corporation to be promoted to middle management; and
3. Remain as inoffensive and cooperative as possible to maximize his chance of being considered a "safe, dependable" candidate for a top slot.

We wonder why we keep running into the same wall, pulling back and then running headfirst into it again? Because most of us are trained to run on tracks, like fucking sled dogs. And the fault lies with two entities:

1. Higher education (kids learn to become test takers, to look intelligent, rather than actually solve problems);
2. Corporate training (we learn its better to be wrong in the crowd than right alone... well, unless you're a hedge fund manager).

The best hope for this country right now is that kids getting out of school can't find jobs in big corporations. Perhaps we'll actually have some (non-financial industry) innovators in the economy again.

c.f. this board. truth speakers like you or me are labelled trolls while virtual web spiders posting other's blog opinions rise to the top. where is the hope?

[Sidd Finch]

Originally Posted by Atticus Grinch

I didn't say it had happened all at once. But the "national consensus" standard from Kennedy v. Louisiana now applies to the harshness of sentences other than death, which means that the seriousness with which crimes are punished is now a nationalized policy. If California wants to punish the bejeezus out of hate crimes, must they show that their sentences do not fall outside the "national consensus"?

Thanks for the link to Thompson, but as I'm sure you noticed, it doesn't define juvenile for purposes of constitutional law -- it just identifies a then-existing national consensus with regard to the DP, and that age was, if I read the case correctly, lower than 18 in many states. Can a state redefine juvenile as younger than 16 and give jury trial rights and impose all sentences other than DP or LWOP? Thompson doesn't say, but you'd better bet that all defense attorneys will be contending that all imposition of juvenile sentences in all but a few states is harsher than the national consensus, if only to preserve the issue for appeal.

As for your first paragraph -- are you saying that the 8th Amendment cannot reach punishments other than death? If California wants to punish the bejeezus out of hate crimes by, say, using thumbscrews and branding irons, does the 8th amendment provide a basis for the federal courts to intervene?

The rulings on laws such as 3 Strikes demonstrated that "national consensus" (assuming that's the operative term) is a very broad concept.

As for your second paragraph -- I find it pretty easy to accept that the concept of "cruel and unusual punishment," just like the concept of "excessive bail," depends on the circumstances. Including the crime, but also including the defendant, and also including the time. The founders didn't list the factors that should go into this analysis -- but that was either a reflection of their wisdom, or a happy accident. (Else we would be arguing about whether the "number of plows within the defendant's chattel" could be read as applying to the number of cars owned, and whether leased cars count.)

[Hank Chinaski]

Originally Posted by sgtclub

Interesting . . .

is there a reason we can't require socks to embed a picture of a lady almost showing her boobies into long posts like that?

[Cletus Miller]

Originally Posted by Hank Chinaski

is there a reason we can't require socks to embed a picture of a lady almost showing her boobies into long posts like that?

Can't you send him a C&D letter demanding pix as "commentary" to satisfy fair use when copying articles in full?

[Atticus Grinch]

Originally Posted by Sidd Finch

As for your first paragraph -- are you saying that the 8th Amendment cannot reach punishments other than death? If California wants to punish the bejeezus out of hate crimes by, say, using thumbscrews and branding irons, does the 8th amendment provide a basis for the federal courts to intervene?

I'm decrying the nationalization of criminal law. I think the Constitution was meant to secure certain standards of national citizenship rights -- "You can't be a member of our Union if you do X to your residents." But I do not think that it was intended -- or should be read now -- to say that everything that most Americans agree is true should become a condition of a state's membership. I might personally think that gay marriage is good policy and cousin marriage is bad policy, but I shy away from saying that it's a core American value because I know there are loads of people who've said that sentence the other way. And which behaviors are punished and by how much has historically been a matter of non-national policy, and they lever that the Court is using to save people from meanness and stupidity is damaging. The beef I have with "national consensus" is that a majority of states are just as likely to be venial and shortsighted as a majority of people, but the Court can only bird-dog the outliers. It's like saying states are laboratories of democracy, but once 26 of them have announced there's no way to turn lead into gold all the others have to give up, too. Where's the principle behind that?

As for your second paragraph -- I find it pretty easy to accept that the concept of "cruel and unusual punishment," just like the concept of "excessive bail," depends on the circumstances. Including the crime, but also including the defendant, and also including the time. The founders didn't list the factors that should go into this analysis -- but that was either a reflection of their wisdom, or a happy accident. (Else we would be arguing about whether the "number of plows within the defendant's chattel" could be read as applying to the number of cars owned, and whether leased cars count.)

And all of this is true, but an argument that where the Constitution said something but wasn't clear on exactly what it was trying to prohibit, having a top-down solution imposed by five Justices may not have been what the Framers really imagined would happen.

Back in the days the Court was the last bastion of progressivism against the know-nothingism of the elected branches, I was a big fan of judicial power. Now that the GOP has the Court and the Dems have the other branches, I'm less sanguine about the Court as a beacon of light in a dark age. And I continue to be surprised at liberals who trust the Court as an institution and think it's just a matter of ridding ourselves of that Italian Catholic one and the black guy who isn't really black because of what he believes. (Not saying anyone here believes this, but it's an unspoken sentiment by non-lawyers who think of the SCOTUS as a political playfield.) I think that's short-sighted. Before there was a Warren court there were the Four Horsemen. Powerful courts mean empowered individuals, and the flip side of the empowered individuals coin is disempowered majority. It's fun to think of little guys winning court battles, until you realize it means 99% of us not having the rules we voted for, which is a stronger principle of our government than even freedom -- whatever that means.

End soapbox, I suppose. I'm a lawyer so I swore to uphold laws represented by binding precedent. But I don't have to like it.