Too Big to Jail

Here's the amazon.com link to a great read I recently downloaded for my kindle: With Liberty and Justice for Some: How the Law Is Used to Destroy Equality and Protect the Powerful, by Glenn Greenwald.  You can read a sample chapter there for free.  A former litigator and now journalist with salon.com, Glenn Greenwald tells the recent story of how many of the biggest criminals on Wall Street are too powerful to be prosecuted.  

The book itself is the latest chapter in the ongoing class warfare saga of these United States, or what I like to call generally Justice for the Rich (one of my topics/labels for blog posts here).  Glenn Greenwald's book is mainly about the recent failure of our government to prosecute the biggest criminals on Wall Street, or the problem of - to use a title of one of the actual chapters of this book -  "Too Big To Jail."  That is to say, while big financial institutions are deemed "too big to fail," the leading banksters in charge of them are similarly just too big and powerful to be jailed. 

I heard Glenn Greenwald on NPR today, but the Democracy Now! interview, "Zero Accountability": Glenn Greenwald on Obama's Refusal to Prosecute Wall Street Crimes, is more informative.  Glenn is one of at least two Greenwalds active in the political and journalistic arena and in it for the right reasons, to seek truth and justice.  The other is Robert Greenwald, whose documentaries I have often mentioned here on my blog.  I wonder if these two Greenwalds are related.   In any case, I have no personal connections to either and get nothing for this plug other than the satisfaction of passing on a good read.

The President We Really Need

Dr. Jill Stein, Green Party Presidential Candidate, from Massachusetts, is the only Presidential candidate who is speaking the truth about Obamneycare and is talking about a real solution to the health care crisis: a single-payer system: Romneycare and Obamacare are class warfare and failures, says Stein; calls for "real solution" of Medicare for All.


She is the President we really need.  I am, however, about 100 percent sure we will instead get the one named Obamney.

Last election, my vote, and my campaign contribution, went to Obama.  This year, my contribution has already gone to Dr. Jill Stein and my vote will follow.   This year, I cannot bring myself to vote for the Demopublican over the Republicrat.   Each principal party candidate has now proven by his actions - despite what he may have said, or may now say, to get elected - that he is steadfastly in support of unnecessary and immoral wars, that he is shamelessly in favor of lavish corporate welfare and bailouts to the rich elite who regularly and legally steal from the rest of us, and that he will obsequiously kowtow to Wall Street and big corporations and continuously pretend to serve the public interest without actually doing so.

In this year, as in all national political election years, I am especially mindful of the eternal truth in George Orwell's statement that political language is "designed to make lies sound truthful and murder respectable, and to give an appearance of solidity to pure wind."

Obamneycare Upheld by SCOTUS Today

Obamneycare was upheld by the US Supreme Court today. While many of my fellow "liberals" applaud this result, I am mostly just sorry that this Heritage Foundation idea, first brought to fruition here in Massachusetts by Romney to protect the usual suspects, will continue to be viewed, due to Obama's unfortunate support of this, as a Democratic idea.

Thanks especially to the horrible mandate - already proven to be a disastrous failure here in Massachusetts - middle income people will be screwed by this terrible regressive law which will protect the interests of the bloated medical and pharmaceutical industries and the medical insurance racket at the expense of 99 percent of us.

Yes, some will benefit from the few good provisions such as that which prohibits denials for pre-existing conditions. But as Howard Dean has rightly said, it would have been better not to pass this law at all, as overall it is worse than the horrible system we had before it.


Meanwhile, true progressives, and conscientious physicians, await the only real solution: a single-payer system.  Yet the cynic in me thinks that more likely we will see Obamneycare morph instead into an even more regressive disaster for the vast majority of us, both poor and middle income.  I hope I am wrong.

9th Circuit Panel's Strike-Down of Prop 8 Will Stand

The Ninth Circuit Court of Appeals, in California, decided on Tuesday not to have a rehearing, by a larger en banc panel of that court, on the Proposition 8 case earlier heard by its 3-judge panel, which struck down the voter-enacted ban on gay marriage on equal protection grounds.  That means that gay marriage proponents have won for now, and that Proposition 8 backers will be attempting to take this up to the US Supreme Court.

It is not certain the US Supreme Court will review that case, however.

It's more likely the Supreme Court will hear the First Circuit case from here in Boston that just found DOMA unconstitutional.  But it's also possible the Supreme Court will elect to hear both cases (see constitutional law expert Erwin Chemerinsky's comments in the excerpted article below).  We shall see.

Meantime, there will be no gay marriage yet in California, as despite this final word from the Ninth Circuit in its favor, the mandate will be stayed until final disposition of the appeal to the US Supreme Court.  Here's my excerpt from the excellent article from Law.com's The Recorder:

The order denying rehearing leaves in place the court's February 2-1 ruling striking down the ban on equal protection grounds. The majority, led by famously liberal Judge Stephen Reinhardt, said the voter-enacted initiative served no purpose other than "to lessen the status and human dignity" of gays. 

Only four of the court's 25 active members publicly backed rehearing the case before an 11-judge panel. Three of them issued a short yet blistering dissent. "Based on a two-judge majority's gross misapplication of Romer v. Evans, 517 U.S. 620 (1996), we have now declared that animus must have been the only conceivable motivation for a sovereign state to have remained committed to a definition of marriage that has existed for millennia," wrote Judge Diarmuid O'Scannlain.  

"Even worse, we have overruled the will of 7 million California Proposition 8 voters based on a reading of Romer that would be unrecognizable to the justices who joined it, to those who dissented from it, and to the judges from sister circuits who have since interpreted it." Judges Carlos Bea and Jay Bybee joined him.  

Judge N. Randy Smith, who dissented in February, also wanted the case reheard. O'Scannlain's three-paragraph "dissental," as judges on the court call them, opens by pointing to the media "firestorm" President Obama created with his recent announcement supporting same-sex marriage. "Drawing less attention, however, were his comments that the Constitution left this matter to the states and that 'one of the things that [he]'d like to see is that [the] conversation continue in a respectful way,'" O'Scannlain wrote. "Today our court has silenced any such respectful conversation."  

Judge Stephen Reinhardt and Senior Judge Michael Daly Hawkins, who joined him in the panel majority, fired off a single-paragraph response. "We are puzzled by our dissenting colleagues' unusual reliance on the president's views regarding the Constitution, especially as the president did not discuss the narrow issue that we decided in our opinion," the two Democrat-appointees said. "We held only that under the particular circumstances relating to California's Proposition 8, that measure was invalid. In line with the rules governing judicial resolution of constitutional issues, we did not resolve the fundamental question that both sides asked us to: whether the Constitution prohibits the states from banning same-sex marriage." 

Indeed, Reinhardt's panel opinion, leaning heavily on Romer, was painstakingly tailored to California. "Because under California statutory law, same-sex couples had all the rights of opposite-sex couples, regardless of their marital status, all parties agree that Proposition 8 had one effect only," Reinhardt's panel opinion said. "It stripped same-sex couples of the ability they previously possessed to obtain from the state, or any other authorized party, an important right — the right to obtain and use the designation of 'marriage' to describe their relationship."  

O'Scannlain's short dissent didn't go into the merits, but called Smith's February dissenting opinion "excellent." All four dissenters are Republican appointees.  

The Ninth Circuit's denial of en banc review means Perry could very well be on a similar track for Supreme Court review as a Defense of Marriage Act challenge that was before the First Circuit. A three-judge panel of the Boston-based court last week rendered unconstitutional the provision of DOMA that denies federal benefits to same-sex couples.
Some think a DOMA challenge would be a more likely candidate for high court review since it's a challenge to a federal statute, not a state voter initiative, and since plaintiffs in the Prop 8 case are asking for a far more sweeping ruling — one declaring marriage a fundamental right.  

"I would not be surprised to see the Supreme Court take both and have them both briefed and argued (as it often has done)," UC-Irvine law school Dean Erwin Chemerinsky wrote in an email. He noted the court often takes cases on related topics and has them handled "in tandem," where they would be briefed on the same schedule, argued the same day and decided in separate opinions. On the other hand, he said, the Prop 8 opinion is narrow in that it's limited to a state that granted a right and then rescinded it whereas the DOMA case, Gill v. Office of Personnel Management, strikes down a federal statute. 

"The court always is inclined to take a case where a federal law is struck down."
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For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

First Circuit Finds DOMA Unconstitutional

The First Circuit Court of Appeals in Boston found DOMA unconstitutional today.  But enforcement of this federal court of appeals ruling - which would extend the federal economic benefits denied by DOMA to gay couples - will have to await a decision by the US Supreme Court.   The First Circuit's decision is here.  For a good summary, see Ruthann Robson's blog.

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

Boston Globe Calls for Task Force to Study Child Custody Reform

I couldn't agree more with this suggestion from the Boston Globe that the governor or legislature convene a task force to explore child custody reform proposals. It's way past time for a serious consideration of reforms in our custody law to level the playing field for fathers, who have been treated unfairly for so many years, and whose children have suffered as a consequence.

The recently enacted alimony reform was a very real victory for gender equality in Massachusetts.  This victory has more than a few of us dads (and others who care about dads and their children) thinking about the possibility that we might finally reform our child custody laws as well.   As with alimony reform - which I supported long before it became popular - I have also gone on record, long ago here, in favor of a shared child custody presumption (see my first, second, and third posts on this issue from 2008).  I am not going to get too excited too soon, but I am very encouraged by the sight of this opinion piece in the Boston Globe.  Who knows? Maybe equality is contagious.

We have lived far too long with the "best interests of the child" standard not to finally implement laws and procedures that will fully give life to that standard as the true test, not just in theory but in practice.  While the "best interests of the child" has long been the legal standard - on paper - in practice that standard has proved vague enough to be undermined far too often by traditional, patriarchal and/or downright anti-male attitudes that earlier accompanied the now-extinct "tender years doctrine" and which attitudes have stubbornly persisted.

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

9th Circuit Panel Finds California's Gay Marriage Ban Unconstitutional

Well, here's the decision from the 9th Circuit out in California, released as expected today.  The three-judge panel affirmed the lower federal court's decision finding Proposition 8 unconstitutional.  See the AP article on this here.   

After reading the decision (and dissent) just then, I concur with Barry Deutsch, who opines here that this ruling is likely to survive scrutiny by the US Supreme Court because it was decided on narrow grounds.   It does not in fact declare that the US Constitution grants a right of gay marriage.  

The narrow issue actually decided was, as Barry Deutsch put it: "Can a state pass a special law to eliminate an already-existing right for same-sex couples to have the legal designation 'marriage' applied to their relationships, when the state otherwise makes no legal distinction between same-sex and opposite-sex relationships? And the Court’s answer is no." But this is not over yet, so stay tuned. Here's the gist of the AP article:

SAN FRANCISCO—A federal appeals court on Tuesday declared California's same-sex marriage ban to be unconstitutional, putting the bitterly contested, voter-approved law on track for a likely appeal to the U.S. Supreme Court.  

A three-judge panel of the 9th U.S. Circuit Court of Appeals ruled 2-1 that a lower court judge correctly interpreted the U.S. Constitution and Supreme Court precedents when he declared in 2010 that Proposition 8 -- a response to an earlier state court decision that legalized gay marriage -- was a violation of the civil rights of gays and lesbians. 

However, the appeals court said gay marriages cannot resume in the state until the deadline passes for Proposition 8 sponsors to appeal to a larger panel of the 9th Circuit. If such an appeal is filed, gay marriages will remain on hold until it's resolved.  

"Although the Constitution permits communities to enact most laws they believe to be desirable, it requires that there be at least a legitimate reason for the passage of a law that treats different classes of people differently. There was no such reason that Proposition 8 could have been enacted," the ruling states.
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For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

The Latest on Gay Marriage - California, Washington and the Nation

Folks interested in gay marriage issues, particularly those living in California, are awaiting the 9th Circuit Court of Appeals' decision, expected to be released today, which will reveal its three-judge panel's opinion on whether Proposition 8 (the ban by voters on gay marriage in the state of California) is constitutional, specifically whether the lower court's opinion against the Proposition will stand.  If the lower court's decision is affirmed, the supporters of the ban plan to appeal to the entire panel of the 9th Circuit and then to the US Supreme Court if necessary.  Check out the AP story, as appears at Boston.com.

And there is yet more news on the West Coast. Law prof Joanna Grossman has another interesting article, this one mainly about the gay marriage legislation just passed by the state senate in the state of Washington, and which is expected to be passed soon by the house and signed by the governor there, and which would make Washington the seventh state (after Massachusetts, Connecticut, Iowa, Vermont, New Hampshire and New York), along with the District of Columbia, where gay marriage has been created and legalized either by legislative or judicial action.

In Washington, this legislative action is unique, as Grossman points out, in that "it will be the first time, since the beginning of the modern same-sex marriage controversy, that a state legislature has reversed itself, moving from a statutory ban on same-sex marriage to a statutory authorization" and it will have all happened in a very short time. For more about these recent developments in Washington, and for a brief summary of the developments in the recent, nine-year-long history of gay marriage in the United States, see her online article, The Beginning of the End of the Anti-Same-Sex-Marriage Movement .

Grossman's optimism, in believing as she does that "same-sex marriage is an inevitable, eventual reality" is understandable, given this and other recent developments. She explains how the Washington state legislature did a rather quick about-face in favor of gay marriage, and sees that as a sign that views around the country are changing quickly and that "even deeply entrenched opposition may dissipate sooner than we thought." She notes that same-sex marriage bills are working their way through legislatures in other states, including those of New Jersey and Maryland.

I once shared her optimism, but now I have my doubts. Any suggestion that the six, soon-to-be-seven, states, plus the District of Columbia, will quickly grow in number to include most or all of the other 44 (soon-to-be-43) states where gay marriage has not been legalized, is wildly optimistic. It is far too easy for those of us who live in New England and New York (home to all but one of the current same-sex marriage states) to be out of touch with what is going on in the more conservative regions of the South and the Midwest, and indeed the vast expanse of the country. I tend to think we are going to continue to have, for the foreseeable future, a vast majority of states that are, as they have been, consistently and obstinately unfriendly to same-sex marriage, while a very small number of new states warm to the idea.

Gay couples are a very small minority of households, even in Massachusetts. In the more conservative states, where the religious right or at least conservative social values hold sway, the small minority of gay couples and their liberal and libertarian supporters are likely to continue to be drowned out by the louder, and stronger, voices of the more socially conservative majority. If you've read this far, you might find interesting as I did these numerous charts showing the demographics of same-sex couples in the US, derived from the latest (2010) US Census.

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

SCOTUS Says Cops Need Warrant for GPS Trackers

At the US Supreme Court, sometimes they all get it right on a truly important issue, as they did on Monday: Justices Rein in Police on GPS Trackers (Wall Street Journal). See the court's opinion and the two concurring opinions in the court case here.

Divorce Books for Little Kids

Many will soon be giving or receiving holiday gift cards for a certain megabook chain or amazon.com.  So maybe now's a good time for some recommendations of books about divorce.  I just created two listamania lists on amazon.com.  One of them is a list of my recommended books for small children about divorce, and the other one is for a couple of books I recommend avoiding.   Below you will find the substance of both lists and my comments.  Happy Holidays!

These are good books for divorcing parents or other caregivers with children of preschool age. Read them first to see if they make sense for you and your own child.

1.  Standing on My Own Two Feet: A Child's Affirmation of Love in the Midst of Divorce by Tamara Schmitz

2.  Dinosaurs Divorce by Marc Brown The list author says: "This book should stimulate discussion of more serious issues that may come up with slightly older children.  Use what you need, and ignore what you don't. You might choose to skip the part with mommy dinosaur drinking a martini with wine and liquor bottles, and a spilled pill bottle, behind her."

3.  Two Homes by Claire Masurel

4.  Mom's House, Dad's House for Kids: Feeling at Home in One Home or Two by Isolina Ricci

5.  Was It the Chocolate Pudding?: A Story For Little Kids About Divorce by Sandra Levins

6.  When I Miss You (The Way I Feel Books) by Cornelia Maude Spelman

OK, now here are a few books to avoid:

1.  If Daddy Only Knew Me by Lila Sprague McGinnis

2.  Mom and Dad Don't Live Together Anymore by Kathy Stinson

New Probate and Family Court Rules

Revised rules for the Probate and Family Court of Massachusetts will go into effect January 2, 2012.  The new rules can be found on the website for the Massachusetts Trial Court Law Libraries, as reported today in their blog:

• New Supplemental Rules of the Probate Court, which will replace the General Rules of the Probate Court and current Supplemental Rules of the Probate Court on January 2, 2012 
• Amended Uniform Practices of the Probate and Family Court, effective January 2, 2012 
• Amended Rules of Civil Procedure,  effective January 2, 2012  

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

Kobe Bryant Headed for Divorce

There's bound to be a bit of schadenfreude here in New England, as we Boston Celtics fans absorb the news of the impending divorce of our nemesis Kobe Bryant out in LA. But any divorce like this one - which involves two small children, ages five and eight - should be no cause for celebration.

On the bright side, it appears that this will be handled quickly and without painful public drama.  According to both TMZ and the LA Times, Kobe's wife Vanessa signed her petition on December 1, Kobe penned his response on December 7, papers were filed with the court on December 16, and the couple has already issued a joint statement late yesterday that they have come to an agreement privately through counsel and will have their divorce judgment entered next year.

According to TMZ, Kobe has already vacated their huge Newport Coast mansion, which wife Vanessa is to keep in their deal. It is clear from the filings, as released by TMZ, that Vanessa has claimed some jewelry as her separate property (including, presumably, the multi-million dollar ring Kobe gave her after his infidelity with the Colorado woman who accused him of rape back in 2003), that they did not have a prenuptial agreement, that she is seeking spousal support, and that both have requested joint physical and legal custody of their two girls.

Even though California has tightened up its rules for prenuptial agreements (following the Barry Bonds divorce, which was thought to have been unfair to his Swedish wife), it is possible in California to waive the right to share in community property and to limit the right to spousal support in a prenuptial agreement.   But Kobe Bryant, by failing to insist upon a prenuptial agreement at the time he and Vanessa married - over ten years ago, while they were very young, at the very beginning of what would become a very successful NBA career - will thus end up sharing a lot more, in both assets and in ongoing support obligations, of his earnings with Vanessa than he would likely have been required to do.

That is because the overwhelming bulk of their assets was accumulated during the past ten years of their marriage and Kobe's tenure with the NBA.  Consequently, they will likely be splitting their assets in half as it will all be "community property" - except for the jewelry she can claim as separate property because it was a gift to her.  That could mean she would walk away with slightly more than he does (on account of these expensive gifts she listed as separate property), and then continue to collect child support and alimony which will be tied to his continued high earnings.

But given estimates of their net worth in the $200-300 million range, and many more millions to come - through Kobe's expected NBA salary of $25 million plus endorsements for the next several years - the Bryants do not need our financial sympathy.

Let's just hope the girls will be okay with their parents living in separate lavish homes. And of course, go Celtics!

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

Christopher Hitchens, Rest in Peace

With the passing of Christopher Hitchens, we have lost a most brilliant, provocative writer and thinker. He was active and influential on both sides of the pond. I share my English brother John Bolch's admiration for the man and his writing. See John's post and the video contained therein: Family Lore: Christopher Hitchens, 1949 - 2011.