Let's Just Don't Get That Started

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Even though a deal seems to have been made among Congressional leaders, Trump is still threatening to declare a national emergency or to act by executive order or to do both to build his wall.


Should President Trump declare a “national emergency” in order to build his wall? Setting aside without debate the question of whether there is a national emergency that a wall can solve, do we truly want Trump to provoke a legal crisis that might set a precedent for how he and future Presidents can resolve a thorny political problem?


The Constitutional authority to tax and spend belongs solely to Congress. My cursory research indicates that to make an end run around the Constitution, Trump will have to resort to the National Emergencies Act of 1976. This Act allows the President to declare a national emergency, but also states that an emergency declaration can be revoked by Congress. However, a law revoking the declaration has to be signed by the President and the President has the right to veto the action of Congress. A 2/3 vote in each chamber will be required to override a veto.


I imagine a showdown will probably go something like this: Trump will declare a national emergency. The House will pass a bill to rescind the declaration. In all probability, Republicans in the Senate will not pass a bill rescinding the declaration. Even if the Senate narrowly passes a bill, Trump will veto any law rescinding his declaration and it is extremely doubtful there are enough votes in the House and Senate to override the veto.


Trump has to find the money. He will do this by taking money from the appropriated budgets of the Department of Defense or the Department of Homeland Security or FEMA or goodness knows where.


At some point, lawsuits will be filed. How long will it take to resolve them and will the construction be allowed to commence while the lawsuits are pending? Any answers are speculative.


Trump is ultimately counting on “his” Supreme Court. Trump probably has a right to be confident the Supreme Court in a 5 to 4 vote will find a reason to defer to his judgment.


If Trump wins this political fight in this way, does it embolden him to begin to govern by fiat? Probably. His acting Chief of Staff has already said “… he’ll do it with or without Congress”, and Trump said at his El Paso rally that he will build the wall anyway. If Trump does declare an emergency, it is sure to start a tit for tat battle that will ultimately paralyze Trump and the government. Trump is backing himself into a corner, but it is probably a corner he relishes because it gives him an excuse to do what he wants to do how he wants to do it. He may win this battle, but we are the ones who will ultimately pay the price.


The exercise of emergency powers has a history much too long and complicated for this blog. In times of war or in those instances that there is at least a consensus of Congressional opinion that a national or foreign policy objective must be advanced urgently by an exercise of emergency power, the Congress has tended to go along even though everyone with any sense recognizes that this road is dangerous.


There is an excellent series on PBS entitled “The Dictator’s Playbook” that warns us of this path and our own Founding Fathers were justifiably terrified of an “Imperial Presidency”.


I feel certain that one day we will all look at this wall and shake our heads – some of us in shame and some of us in wonder about how foolish this was. Perhaps it is only fitting that Trump builds this type of monument to himself. One of these days we will probably be talking about the cost of demolition and using the wall as an example of bad policy.


My original question was whether Trump “should” declare a national emergency. In my youth, adults who were thinking out loud about the bad consequences of doing one thing or another would inevitably shake their heads and say in exasperation, “Well, let’s just don’t let that get started.” There is wisdom in that.

I Remember When...

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As we get older we tend to remember the past as being better than the present and probably even better than it actually was. This was my reaction to a story written by Kathryn Eastburn in the Houston Chronicle of 2/4/19 which has to do with the loss of our wetlands habitat. Ms. Eastburn describes what has happened to our wetlands between the coastal prairies south of us all the way to Galveston. According to her story, most of this precious wetlands habitat has been lost to urban housing and commercial industrial development, subsidence due to the drainage of groundwater for industrial and residential use, man-made erosion, and the proliferation of invasive species of trees and other vegetation. Rice University professor John Anderson is quoted as saying that nearly half of Texas wetlands had been destroyed naturally or by human intervention by the mid 1980s. Anyone driving from here to Galveston can see that this trend is, if anything, accelerating. If you are over 50, you will recall that in the Fall and Winter you would typically see thousands of geese and ducks feeding and resting in fields along US 290. If you have fished in coastal Louisiana, you can easily see the massive erosion of the marshes. In fact, if you ask your fishing guide where the marsh used to be during his career, you will find it hard to believe how much has been lost and you will ask yourself how much longer it can possibly last.


Global warming is causing sea levels to rise which harms wetlands. It is also causing extreme weather patterns, As a duck hunter who has spent more than 50 years in the Navasota River bottom, I can assure you that we have seen more extreme flooding events in the last 5 years than ever before. I know this because we keep records. This flooding causes damage to property and it has also permanently harmed the “hardwood bottom” habitat. Global warming will compound and accelerate the wetlands problem. It is interesting to note that while U.S. politicians dither and prevaricate about whether global warming even exists, all the largest oil and gas companies in the world accept global warming as a fact and are taking action to save themselves. In the same 2/4/19 edition of the Houston Chronicle, Gretchen Watkins, Shell’s president of U.S. operations, said: “Climate change is real and is a problem that society needs to engage in, and we want to engage in a leading way.” Ms Watkins then goes on to describe Shell’s efforts to diversify its energy portfolio. She has no intention of allowing Shell and its shareholders to be caught flat-footed and holding the bag.


The only problem with what Ms. Watkins says is that society can’t take action on the massive scale required without bold political leadership and we are being held back by those who prefer the status quo or, worse, going back to the good ol’ days.


I have previously written about the many ways that the Trump Administration is attempting to eliminate environmental rules, some of which are intended to protect wetlands. The New York Times of 12/27/18 had an excellent feature, “This Is Our Reality Now”, which needs to be read to understand the full scope of what Trump has done. This feature includes a list of 78 important environmental rules that Trump has either eliminated or is attempting to eliminate.


If you are interested in this topic, may I recommend “Formation and Future of the Upper Texas Coast” by John Anderson. For a look at the systematic destruction of Florida’s wetlands and the failed George W. Bush policy of “No Net Loss”, I recommend “Paving Paradise”, by Craig Pittman and Matthews Waite. For a wonderful overview of the history of the entire Gulf Coast, I think you will enjoy “The Gulf – The Making of an American Sea” by Jack E. Davis.


I have nothing against Buc-ee’s, but I would rather see geese.

The Dangers of Coal Ash

Image is property of Nenad Zivkovic/Shutterstock

Image is property of Nenad Zivkovic/Shutterstock

On January 17, 2019, The Texas Tribune published a story about groundwater contamination in Texas caused by the negligent storage of coal ash. Coal ash is what’s left after coal is burned at power plants. Coal ash has to be stored safely to prevent leeching and seepage. According to the story, groundwater is contaminated at all of the 16 power plants in Texas which were studied. This includes the Texas Municipal Power Agency (TMPA) power plant at Gibbons Creek near Carlos, the power plant in Fayette County near La Grange and a power plant in Robertson County. The contaminants include arsenic, cobalt, manganese, molybdenum, nickel, selenium, boron, and sulfate.


In 2015, the Obama Administration created the Coal Ash Rule which strengthened regulations concerning the storage of coal ash and required power plants to report groundwater monitoring data to the Environmental Protection Agency (EPA). Needless to say, the Trump Administration has proposed weakening the rule.


In some instances, groundwater contamination was found that is 100 times higher than safe levels.


The nation produces about 100 million tons of coal ash per year. Texas power plants produce about 13 million tons per year.


The Texas Commission on Environmental Quality (TCEQ) declined to comment on the report specifically, but said, “A rule to create a program for the management of coal ash in Texas is in development. The TCEQ continues the process of revising the draft rule due to changes to the federal coal ash rule.” Another way that TCEQ might say this is: “Now that the horse is out of the barn, if we have to, we may post a sign warning people to close the gate.”

Scattershooting While Wondering About...

Climate Change

There was once a wonderful sportswriter in Dallas named Blackie Sherrod. His column always began, “Scattershooting while wondering about __________”. That blank could be filled in with any tantalizing thought. Blackie would leave his opening thought hanging and proceed with the column. His lead never failed to hook me.


Blackie Sherrod, circa early 1950s   Image property of: SMU / DeGolyer Library News & Notes

If you follow this blog you will know that I have been focused upon environmental issues. Apparently I am not alone in my despair. The newest polls show that 73% of Americans now believe that global warming is happening and 72% say global warming is happening to them. 62% of those polled believe humans are the main cause of climate change and 69% say they are “worried”. All of these are new records.


What is going on here? According to Dr. Anthony Leiserowitz, director of the Yale program responsible for the poll, the changes in public opinion are tied to politics. Dr. Leiserowitz, who is quoted in an excellent article appearing in The New York Times of 1/23/19, said that, “Every time he (Trump) talks about climate change he drives more media attention to the exact issue… but Trump’s approach to politics is so divisive, that when he takes a strong stand on climate change and other issues, he tends to drive a majority of the country in the opposite direction.” Since party affiliation is closely tied to acceptance or rejection of climate science, one might expect the poll to be more evenly divided, but it is possible Trump may be an unwitting ally, no matter how counterintuitive that may seem.


But, as Blackie Sherrod might have said, “Scattershooting while wondering whether it had to be this way?”  Did Trump’s voters make their decision to vote for him based on environmental issues? Was it really necessary for Trump to be the enemy of the environment to get elected? He certainly thought so, but I doubt it. What if Trump had positioned himself as an environmental advocate and argued that this was also good for a new economy? Isn’t it true that being an advocate for the environment would have drawn Independents and environmental activists to him and disarmed Democrats on a key issue? I’m not a political scientist and I don’t know for sure that he could have won while being pro-environment, but I hate to think that to be a conservative you have to be against common sense environmental regulation and science. I don’t have the answer, I’m just scattershooting, but it seems plausible to me that there was a better, smarter, more reasonable, more unifying path and that the path would have provided Trump something he craves more than anything else – greater popularity, a lasting positive legacy and outdoing Obama.


On the bright side, a full-page story in The New York Times of 1/14/19 reports that Democrats in the House intend to restore science to its proper place. It’s a baby step, but it is a step.

More Bad News for the Environment

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On December 28, 2018, the Houston Chronicle reported that the Trump Administration has pulled the plug on Obama-era regulations that would have required coal-fired power plants to retrofit their facilities with air-pollution scrubbers designed to reduce the emission of sulfur dioxide.


This “rollback” will affect 9 power plants in Texas. Sulfur dioxide, which is colorless as it comes out of smoke stacks, turns into sulfate particles small enough to pass through lungs and enter the bloodstream. Sulfate particles aggravate asthma, heart and lung disease, and other serious health problems.


Obviously, elimination of this regulation benefits the coal industry and those power plants that burn coal.  What are the human costs of this policy? Scientists estimate that every year the W.A. Parish coal-fired plant near Houston operates 180 people die prematurely.


On January 3, 2019, the Houston Chronicle reported that researchers at Rice University have concluded that Texas could meet a significant portion of its electricity demand from renewable power without extensive battery storage. “There is nowhere else in the world better positioned to operate without coal than Texas,” said Dan Cohan, associate professor of civil and environmental engineering, a co-author of the study.


The idea of “clean coal” is, of course, a farce and nothing more than an advertising slogan, but the Trump Administration is taking us backward toward the distant past even though a cleaner future is realistically possible.

A Dangerous Call to Inaction

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On December 27, 2018, The Eagle ran an op-ed piece by a retired oil and gas lawyer named Cullen Godfrey which basically said that global warming is a hoax, climate science and climate scientists are wrong, and that we should all just stay calm. Godfrey goes so far as to say there is a “global warming hysteria”. To prove his point, Godfrey mentions several historical examples in which scientists and scientific theories were ultimately proven to be wrong. Needless to say, Godfrey fails to mention even one of the countless examples of scientists being correct. After reading his piece, I felt as if my grandfather had patted me on the head as a child, told me not to be frightened, and to go back to sleep.


If you are predisposed to believe that a warming planet is not a problem, or that man is not causing it, or that it is already too late and too expensive to do something about it, or that climate scientists and scientists in general are wrong or worse, crooked, then Godfrey’s message will give you comfort.


On the other hand, for those of us who are truly worried about this issue, Godfrey is another example of someone who has life-long ties to the oil and gas industry and no scientific background, knowledge or credentials whatsoever, purposefully spreading disinformation and sowing doubt about what may be the most important issue facing mankind.


As luck would have it, on the same day The New York Times ran a 12 page special report, “THIS IS OUR REALITY NOW”, which details at great length the many serious environmental problems we are facing and the Trump Administration’s rollback of environmental rules and regulations. The Trump Administration has either changed (rolled back) or has pending proposals to change 78 important environmental protection rules and regulations whether by executive order or through the regulatory authority of the EPA, the Interior Department and other executive branch agencies. Another 11 rules were changed and then reinstated following legal challenges. The Trump Administration has not proposed a single rule or regulation intended to protect the environment.


 I urge you to read this outstanding piece of investigative journalism. A short synopsis of all the regulatory rollbacks is available in the report. It’s frightening as heck, but unlike Mr. Godfrey’s opinion, it’s based on facts.  

Implicit BIas

Original photo by  Patrick Feller  on  Visualhunt.com  /  CC BY

Original photo by Patrick Feller on Visualhunt.com / CC BY

A recent article in the Texas Bar Journal, the official publication of the State Bar of Texas, raised the issue of implicit bias. The article relies upon a definition of implicit bias used by the United States Supreme Court: “Implicit bias refers to the attitudes or stereotypes that affect our understanding, actions and decisions in an unconscious manner”.


The author of the article, attorney Brian Sanford, refers readers to a test developed to determine if someone shows signs of implicit bias. The test is the Implicit Association Test (IAT). The test can be taken online (implicit.havard.edu). According to the author, a majority of people taking the test show evidence of implicit bias.


I was not surprised to learn that implicit bias existed, I think we all know that, but I was surprised at how prevalent and strong it is. Here are the results:


  • 24%: Strong automatic preference for European-American compared to African-American

  • 27%: Moderate automatic preference for European-American compared to African-American

  • 17%: Slight automatic preference for European-American compared to African American

  • 18%: Little to no automatic preference for European-American compared to African-American

  • 7%: Slight automatic preference for African-American compared to European-American

  • 5%: Moderate automatic preference to African-American compared to European-American

  • 2%: Strong automatic preference to African-American compared to European-American

* This distribution summarizes 3,314,227 IAT scores of race task completed between December 2002 and December 2015.


As a trial lawyer who represents many non-whites, the question immediately becomes one of what to do with this information.


Do you tackle the problem head-on in jury selection, or do you say nothing and hope for the best? If you suggest to a jury panel that implicit bias exists and that there is a scientific certainty that some members of the panel harbor bias whether or not they know it, will jurors be offended or, armed with this knowledge, will they search their souls and fight against it?   


I should add here that implicit bias applies to more than race. It also applies to sex, religion, political beliefs and, just this year, a study was published that proves there is a strong bias against those who receive government benefits.


Although most lawyers choose to say nothing because they fear the possible backlash, that may very well be a serious mistake.

The Assault on the Environment

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In the space of less than 2 years, the Trump Administration has mounted an unprecedented assault on the environment. Trump’s actions cannot be seen in any other way.


Here are at least a few of his notable actions:


1 – Weakening of regulations on planet warming emissions from cars, power plants and oil and gas drilling rigs;


2 – Policies encouraging the continued use and production of coal and the propping up of existing and new coal-fired power plants;


3 – Opening of  the Arctic National Wildlife Refuge to oil and gas drilling;


4 – Reduction in the size of national monuments and loosening of protections from oil, gas, and mineral (coal) development on federal lands;


5 – Weakening of federal clean water rules designed to protect millions of acres of wetlands and thousands of miles of streams;


6 – Withdrawal of the United States from the Paris Climate Accords;


7 – Loosening of regulations that protect endangered species;


8 – Blocking the United Nations from endorsing the findings of a major scientific report on global warming;


9 – Arguing at a major United Nations climate conference in Poland that burning of fossil fuels is not a problem; and,


10 – A rollback of the EPA’s fuel efficiency standards for vehicles.


The importance of item #10 on my list is hard to overstate inasmuch as emissions from vehicles is one of the major sources of planet warming greenhouse gases.


At the time the EPA announced that it intended to freeze fuel efficiency standards at the 2020 levels, even the automobile manufacturers were surprised and objected. This signaled that some other special interest group had to be behind this move. The most logical group is, of course, the oil and gas industry, which stands to gain or lose fabulous sums of money because better fuel efficiency means less demand.


On 12/14/18, the New York Times ran a lengthy front page story about how Marathon Petroleum, the world’s largest refiner, the Koch Brothers and others in the industry ran a “stealth campaign” to achieve the rollback. It is a virtual playbook on how to subvert government. It is no wonder the public has such low opinion of lobbyists, politicians and government.


Trying to be optimistic, it is likely that democracy will survive the Trump Administration, although it will be painful. On the other hand, the environment may not. Even if these backward, regressive policies are reversed, we are losing precious time we don’t have to waste.

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Don't Forget Habitat for Humanity at Christmas


We at Davis & Davis Lawyers support the mission of Habitat for Humanity. We are matching donations up to $10,000 during Habitat’s year-end fund drive.

Two recent articles caught my eye. The first is in Time magazine of December 17, 2018. The article reports that owners of mobile-home parks nationwide are raising rents to levels that many renters can’t afford to pay. 22 million Americans with a median income of less than $30,000 live in mobile homes. The rent hikes are related to the trend of large investment companies buying mobile-home parks and their need to create better returns for investors. This is, in turn, forcing many renters out on the street.

The second article was in the New York Times of December 18, 2018. According to this article, homelessness in the United States has increased for the second year in a row, despite a good economy. There are now at least 552,830 people without stable living conditions. This increase is directly related to a spike in rent, particularly in major cities.

Habitat for Humanity is by far the most effective organization to address housing insecurity. Please consider making a contribution to Habitat for Humanity this Christmas.

Be Careful What You Wish For

Image Credit:  Wynn Pointaux

Image Credit: Wynn Pointaux

As you may have heard by now, a federal judge in Texas recently held the Affordable Care Act (ACA) to be unconstitutional in its entirety. The political machinations by Trump and Republicans that it took to get to this point were highly unusual to say the least. Nevertheless, the 20 Republican state attorneys general, including Ken Paxton of Texas, who filed the suit got their wish. This ruling came at the end of the enrollment period and after voters showed that health insurance and coverage for pre-existing conditions was very important to them during the November elections.


This ruling, if it stands on appeal, will strip millions of people of health insurance coverage and all of those with pre-existing conditions will probably not be able to find coverage at any price.


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After the ruling, Trump tweeted something to the effect that we shouldn’t worry about it, that there would be a “GREAT” healthcare plan coming. Other Republicans said nothing, and for good reason.


As I have previously written, Republicans have no alternative to offer. If they did, you would be hearing about it. There is a huge difference between complaining and offering a viable, meaningful alternative.  


The simple fact of the matter is that insurance of every kind and description is based on the immutable truth that many who probably won’t need insurance have to pay premiums so that there will be a pot of money available to pay the claims of those who will need the insurance. Young, healthy people don’t want to buy coverage and are willing to take their chances. If young, healthy people don’t buy coverage, no plan that covers the elderly and sick, the at-risk population can ever succeed.


It goes without saying that Americans don’t like to be told what to do or be forced by the government to do something, but what is the alternative? We’ll see if Republicans have one.

The Dangers of Day Care

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On December 6, 2018, the Austin American Statesman ran a lengthy story by Andrea Ball and Tony Plohetski about the dangers of child day care centers.   The story followed a year long investigation. The story was immediately picked up by The Eagle and many other news outlets.


 The investigation revealed the dangerous conditions existing in Texas day care centers that resulted in hundreds of injuries and 90 deaths since 2007.


 The key findings of the investigation are:


  • More than 450 children – almost one a week – suffered sexual abuse inside a day care facility during the past 10 years. During that same time, child care facilities were cited more than 3,200 times for abuse and neglect of the children they were watching.

  • Nearly half of the children who died of abuse and neglect in day care facilities, 42 out of 88, were in illegal centers. But last year the state shut down its unit designed to track down these day care sites, saying in part that they weren’t finding enough to justify the effort. Obviously the numbers prove otherwise.

  • Texas’ regulations for day care staffing levels – a key predictor of classroom safety and child brain development – are among the worst in the country, and state officials have repeatedly refused to change them. In 2016, they went so far as to pull out of a study analyzing the impact of staffing levels on injury rates, effectively shutting it down before researchers could produce specific recommendations.

  • Texas child care inspectors are hamstrung when it comes to disciplining day care facilities and in come cases, the state’s enforcement strategy has failed to correct dangerous caregiver behavior before injury or death. Usually, there are no financial penalties or extra training ordered when children are abused, neglected or wrongly punished. And the legislatively set of fines that are levied – mainly for background checks – are paltry, averaging $112, even as day care sites with scores of violations are allowed to continue operating.

I strongly encourage parents to read this story.

The investigation by the Austin American Statesman is to be commended. It is a shame a newspaper had to do what Texas Regulators and our legislature should have been doing all along.

The story also draws attention to the fact that child day care is expensive. This fact leads ordinary working Texans to the door of unlicensed, but cheaper, facilities. Our federal and state governments should do more to help struggling families and, particularly, single parents afford licensed, qualified and safe day care.


A Whistle in the Wind

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A Whistle in the Wind


I recently read a magazine article about a man who was wrongfully convicted of murder and spent 27 years in prison. The author, Max Adler, a respected journalist, reviewed all of the pertinent legal documents in an attempt to learn what had gone awry in the legal system that led to this miscarriage of justice. The documents ran to around 3,000 pages. While Adler seemed to think this was a lot of material, by today’s standards, it isn’t. Nevertheless, after his review, Adler had this to say:


“By the end, I’m convinced of one thing: Nowhere can words matter less than in the criminal-justice system. Opposing sides defecate piles of paperwork to discourage or deafen the opponent. And they’ll do this for decades. Amid so much noise, the truth gets as lost as a whistle in the wind.”


Adler’s words are a spectacular indictment of the criminal justice system and we need to bear in mind that he is a well-educated, trained, experienced, mature, sophisticated journalist. I wondered, if the legal system looks this way to a person such as Adler, how must it appear to those who are less educated, inexperienced and naive? And, more importantly, what can be done about it?


In the criminal justice system there is relatively little pretrial discovery available to the defendant. Prosecutors do have a legal duty to divulge to the defendant information which, in their subjective judgment, is exculpatory to the defendant. This principle was established in the famous United States Supreme Court case of Brady v Maryland. There is little to no oversight at the trial court level to ensure that prosecutors fulfill this duty. In the ordinary criminal case, a defendant will have to rely on his or her criminal defense lawyer to find and develop evidence that is helpful to the defense. If the defendant is represented by a court appointed lawyer, which is often true, that lawyer will have to act as both investigator and lawyer. Lawyers are trained to be lawyers, not investigators. Court appointed lawyers are also paid very little and they are almost never given the financial resources necessary to hire investigators or expert witnesses. For the most part, defendants in criminal cases who are represented by court appointed lawyers or who have limited personal financial resources to hire a lawyer, are facing long odds, even if they are innocent. It simply isn’t a fair fight.


If we are serious about doing something to fix the problems, we must first address the imbalance of power between the government and the defendant. Texas and most other states rely upon a patchwork system of appointing lawyers in private practice to represent indigent defendants. These lawyers are often inexperienced, paid very little money and have no access to ancillary professional services such as investigators and forensic experts. It would be far better to create a state public defenders office and staff that office with qualified lawyers and an array of professional staff members capable of helping the lawyers find and present the truth. This type of public defenders office also needs money to hire outside forensic experts.  


A second recommendation is to create a mechanism to enforce the duty of prosecutors to reveal the existence of exculpatory evidence before trial, i.e., before it is too late. In the usual scenario, the defendant only finds out about exculpatory evidence many years after conviction, if ever. If the “new” evidence is brought to a court’s attention, a new trial may be ordered, but nothing happens to the prosecutor who violated the duty to disclose the exculpatory evidence. This should change. Prosecutors should face, at the very least, professional disciplinary action for withholding exculpatory evidence and a strong argument can be made that a court should be able to punish a prosecutor for withholding evidence. Of course, this won’t stop the law enforcement agencies investigating crimes from hiding evidence or from willfully failing to investigate alterative theories of the crime, but it’s a start and it gives prosecutors a strong incentive to do their duty.


The truth should never get as lost as a whistle in the wind.

Video is property of Strong Island Films, Inc.

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Racial Bias in Arbitration?

Photo Credit: Stephen Lovekin/Getty Images

Photo Credit: Stephen Lovekin/Getty Images

The concept that racial bias can affect juries is not new. In 1986, the United States Supreme Court ruled in the case of Batson v Kentucky that the systematic exclusion of African-Americans from juries based upon race was unlawful. That concept is now being used by a celebrity litigant in the context of an arbitration to argue that the arbitration should be halted at least temporarily and, perhaps, permanently.


The facts are that Jay-Z (Shawn Carter) sold a clothing brand to a large conglomerate. Based upon the agreement of sale, subsequent disputes had to be resolved by arbitration. The arbitration agreement is fairly complex in regard to how the panel of 12 arbitrators is to be selected. According to the lawsuit filed by Jay-Z, he and his lawyers discovered during the selection process that not one of the arbitrators listed in a roster of eligible arbitrators presented by the American Arbitration Association was African-American. Jay-Z’s legal position is that this is discriminatory and unlawful.


As I have written countless times in the past, mandatory arbitration agreements are becoming so prevalent that they threaten to create a parallel private judicial system. Are legal concepts, principles and protections regarding racial bias as developed in the judicial system are also available to those who are involved in private arbitration?  


There is no legal precedent that answers the question. If this case is not resolved by settlement, perhaps this question will be answered.

Photo Credit: Stephen Lovekin/Getty Images

There is No Plan B

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Now that the election is over, it seems clear that each party had its own distinct message.


Republicans, following Trump’s lead, went all-in on immigration, the wall, migrant caravans, crimes committed by illegals, fearsome Central American gangs, birth-right citizenship, appointment of conservative judges, and a sprinkling of self praise for tax cuts and deregulation.


Democrats focused on access to healthcare, health insurance, protecting those with pre-existing conditions, the unfairness of the tax cuts to ordinary Americans, local issues, education, protecting Medicare and Social Security, and holding Trump accountable.


Down the stretch the Republicans sensed that the healthcare issue was truly important to voters and that they needed a response beyond “Repeal Obamacare”. They then began to profess that they believed in access to healthcare, in protecting those with pre-existing conditions, and that they had a plan. The only problem is that they don’t have a plan, have never had a plan, and don’t intend to have a plan.


The Affordable Care Act (ACA) is far from perfect. This is due, in large part, to the compromises President Obama had to make in order to get the bill passed. Deals had to be made with the pharmaceutical and medical device industries that prevent Medicare from negotiating prices. The health insurance industry had to be guaranteed a profit. This meant forcing healthy uninsured people to buy coverage which led to imposing  a penalty for people who did not buy insurance and to government subsidies for those too poor to afford coverage. Had these deals not been cut, there is no doubt that these powerful entrenched interests would have killed the ACA before it was born. But, and it’s a big but, these same deals and many other structural problems in our health care system are making it difficult to control the ever rising cost of healthcare, which far exceeds the cost of inflation and far exceeds the cost paid by any other advanced nation for healthcare.


For example, you have probably noticed the consolidation occurring among hospitals and that hospitals are buying the medical practices of doctors.  The latest research proves that consolidation of hospital systems and the business strategy of hospitals buying the practices of private doctors is actually resulting in higher prices for healthcare consumers and insurance companies. A study by the Nicholas C. Petris Center at the University of California, Berkeley, found that prices of an average hospital stay went up between 11% and 54% in most areas in the years following a hospital merger. For more about this, see the New York Times of 11/14/18, “When Hospitals Merge, Patients Often Pay More.”


Another problem is that of uncompensated care.  Texas and other Southern states refused the federally subsidized expansion of Medicaid. This refusal occurred despite the fact that every stakeholder in the healthcare industry begged them to expand Medicaid. The refusal was purely political. Billions of dollars were left on the table and millions of people were left without any coverage. This means that hospitals, doctors and other providers are often paid nothing for their goods and services. Those unreimbursed costs are then passed on to those who can pay. This political showmanship comes at a very high cost to all of us, not just the poor.


While campaigning, Republican politicians were saying they believed in protecting those with pre-existing conditions and believed in access to care, Ken Paxton, Texas Attorney General, filed a lawsuit in federal district court in Ft. Worth to try once again to have the ACA declared unconstitutional. That suit was joined by 20 Republican attorneys general of Southern states.  If that lawsuit succeeds, millions will be without coverage and we will be back to square one with no Republican “replacement” in sight.


Healthcare and health insurance issues have reached a point of crisis. While Texas politicians boast that Texas has the greatest economy in the United States, we also have the largest number of uninsured in the nation. Can the economy of a state or nation that can’t or won’t provide for the healthcare needs of its citizens ever be considered “great”?


Democrats will control the House beginning in January, but they won’t control the Senate. That means a legislative solution is far, far away. In the meantime, we will be at the mercy of political and economic forces beyond our control.  Something has to give.

Now What?

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The election is over. What did we learn?

The turnout was excellent when compared to recent elections, but the election exposed mechanical flaws, breakdowns, unpreparedness and likely voter suppression.

In some places voters on Tuesday had to wait 3-4 hours. Would you vote if you had to wait 3 hours and had a job or child care issues to deal with?

In Houston, polling places in key areas opened late, which caused some voters to leave without voting.

There were voter registration and polling place issues at Prairie View A&M.

According to Associated Press reports, problems with voting machines occurred in New York City, Detroit, North Carolina, Geogia, Texas and elsewhere.

The most egregious example of suppressing voters came in Georgia where the Secretary of State, who oversees voting, was running for Governor. He purged hundreds of thousands from voter polls and tried to disqualify about 53,000 recently registered voters. He narrowly won, but at the cost of his personal integrity and the integrity of the democratic process.

There are, of course, the structural issues caused by pervasive gerrymandering and the results can been seen across the country.

Now that we know we are vulnerable to election interference from outside forces and that our voting apparatus is also suspect, isn’t it time to do those common sense things necessary to get people registered, make it easier rather than harder to vote, and protect the ballots that are cast?

Teen Driving Deaths

We are fortunate and proud to be the home of the Texas A&M Transportation Institute, which is the premier transportation research institute in the world.


On 11/07/18, the Houston Chronicle published an article by Lisa Minjares-Kyle of Texas A&M Transportation Institute regarding teen crash deaths. According to the article, car crashes remain the number 1 cause of death and injury for teens. Teen car crash deaths were actually on a decline before the trend reversed in 2013. What happened?


Texting or talking while driving. Texting doubles a driver’s reaction time. Although teens acknowledge the risk, more than 1/3 say they talk or text “some” or “a lot” while driving.


The presence of teen passengers raises the crash likelihood for teen drivers. Ms. Minjares-Kyle cites a Temple University study which proves young adults were about 50% more likely to make riskier decisions in the presence of friends, and adolescents were more than twice as likely to do so. My anecdotal experience as a parent and lawyer bears this out.


Nighttime conditions are particularly dangerous for inexperienced drivers. Data from the Centers for Disease Control and Prevention shows that 1/3 of teen crash deaths happen between 6 P.M. and midnight.


According to the article, teens believe that alcohol is the biggest threat, but only about 1 in 10 admit to drinking and driving, 80% say they never do, and alcohol is a factor in only about 12% of fatal crashes involving 16 to 17 year old drivers.


It seems clear that years of public information campaigns regarding the perils of drinking and driving have had a positive impact, but that the same sort of campaign has not been effective to combat cell phone use.


Ms Minjares-Kyle had this to say: “For teens, cell phone use is more than just a habit; it’s a functional addiction. We should work on breaking that cycle so the dependency isn’t so overpowering when they get in a car.”


I can only add that the “functional addiction” problem applies to more than teenagers.


It is election time, for better or for worse.


I half expect a public announcement any minute that Russians, Chinese or someone else has “hacked” the election. Where once that idea would have been laughable, it certainly isn’t anymore. One can only hope that our intelligence agencies, cybersecurity experts and election officials are successful in protecting the vote itself.


As serious and threatening as the idea of election meddling by a foreign government or non-state actors might be, the truth is that we are most vulnerable to the pernicious attacks on democracy by our own political system.


The most obvious form of political manipulation is gerrymandering with its evil twins, “packing” and “cracking”. There are also voter ID laws, limitations on absentee voting, purging of voter rolls, laws restricting or eliminating the right of ex-felons to vote, voter registration restrictions, closing polls at an early hour, particularly during the early voting period, and, the most obvious of all, holding elections on a weekday when most people have to work and can’t leave work to vote.


It seems clear that all of these hurdles, particularly when taken together, are put in place to suppress voter turnout and thereby influence the outcome. I have even heard educated, serious people claim that it is the duty of any political party in power to stay in power through whatever means are available. That sort of thought process led us to where we are today. Even George Washington saw party politics as dangerous to democracy. His fear was not misplaced.


Shouldn’t our aim be to encourage voting? Is it in any way healthy for a democracy to have elections decided by a small fraction of the eligible voters? Isn’t it true that this systematic voter suppression has led to a majority of the population feeling helpless, disenfranchised, angry and polarized?


The argument to the contrary is always that we need laws which guarantee the integrity of the vote and that if people don’t care enough to overcome all of the obstacles in their path to vote, then they should lose. Both of these points are specious.


A person is more likely to be struck by lightning than to cast a fraudulent ballot. That is not hyperbole, that is a fact.


As to the overcoming of obstacles to voting, who among us can truthfully say they would vote if being late to work or leaving early from work to vote will cost us our job or if waiting in line to vote interfered with taking children to school or disrupted child care arrangements?


For more about this important issue, see the article “Taking Back the Vote” that appears in the October 29, 2018 issue of Time.


Don’t forget to vote and take a friend!








Rivers Aren't Sewers

Photo Credit:  Bluesbby

Photo Credit: Bluesbby

On Tuesday, October 16, 2018, the Houston Chronicle ran a front page story, “EPA Eyeing Water Well Rules,” which said the Trump Administration may change federal clean water regulations to allow oil and gas companies to discharge their wastewater directly into rivers and streams. I was so astonished that I had to read it twice. Could it really be true that the EPA under Trump is willing to throw away years of progress on water pollution in order to placate the oil and gas industry? Has the Trump Administration forgotten that the EPA began as a Republican idea during the Nixon Administration?


The background of the situation is that oil and gas drillers, particularly those in the Permian Basin, are reaching capacity in their disposal wells and they are also having to truck their waste water a long way, which is expensive. Waste water recovered from drilling operations, including frack water, is also difficult and expensive to treat. Therefore, the solution that is most obvious to the EPA and the Texas Railroad Commission is to “loosen” the environmental standards. That’s good for the drillers and their profits, bad for the environment and the public.


This is actually a double whammy for Texas.


Drillers use enormous amounts of scarce, valuable, clean water for drilling and fracking and, if this change in policy occurs, the drillers will then be permitted to discharge contaminated water back into the rivers and streams that feed our drinking water supply. This doesn’t seem like a good deal for Texas. Just ask the folks in Pennsylvania who wound up drinking bottled water after a similar plan failed there.

The Price of Power

Photo is property of en.wikipedia.org

Photo is property of en.wikipedia.org

I have long wondered why politicians cling so tenaciously to their offices. Is it the money? Is it ego? Is it the perks and benefits they receive from the government and the innumerable lobbyists that court them? Is it the power, prestige and fame? Is it the sense of privilege and entitlement? Is it the possibility that a high office will position them for a lucrative career after politics? Is it devotion to a political party or a political ideology?  Is it a belief in civic responsibility and patriotic duty? Maybe it’s a little bit of everything, but no one can doubt that getting reelected is of great importance to almost all of them.


On rare occasions events occur which bring into the sharpest possible focus what politicians will do, what they will say and how far they will go to stay in office.


Everyone knew long ahead of time that the Kavanaugh confirmation would be brutally contentious  for many reasons and would come down to just a few undecided Senators: Susan Collins, the self-described moderate Republican of Maine; Jeff Flake, a Republican from Arizona; Joe Manchin, a Democrat from West Virginia; and, Heidi Heitkamp, a Democrat from North Dakota. All of these Senators, except Flake, face reelection and are in very close races. In the end, all but Heitkamp voted in a way that enhanced their chance of reelection or, in Flake’s case, a chance of keeping his future political career alive in his deeply red state. Heitkamp bit the bullet and voted against Kavanaugh even though it is obvious it will hurt her in her home state, which voted overwhelmingly for Trump.


There may not be a greater crucible than a Supreme Court confirmation in which to test a politician’s mettle. The choice for these Senators was to vote for confirmation of a lifetime appointee to the nation’s highest court and thereby give themselves the best possible chance of being reelected, or vote against confirmation and hurt or destroy their chances of reelection. Another way to put the question might be whether a Senator, who serves a 6 year term, is more or less consequential than a Justice on the United States Supreme Court, who serves a lifetime? I feel certain the Senators who voted for confirmation will say they voted for what they thought was right even though their votes happened to coincide with their own best interests, but no matter how you see the Kavanaugh confirmation, you have to admire and respect Senator Heidi Heitkamp.


A famous athlete who took a controversial stand in the past that cost him dearly was asked recently why he did it. He said it was because his father had told him: “When you could, you wouldn’t. Now you want to, but you can’t.”  Senator Heitkamp didn’t miss her chance.

Photo is property of en.wikipedia.org

Some Good News about Safety

Photo by: Lorilee Brabson, taken as they were setting up the balloon for launch. Lorilee Brabson, along with her daughter, Paige Brabson, were among the victims of the crash / Photo acquired from the Austin Monthly article “Tragedy in Lockhart”.

Photo by: Lorilee Brabson, taken as they were setting up the balloon for launch. Lorilee Brabson, along with her daughter, Paige Brabson, were among the victims of the crash / Photo acquired from the Austin Monthly article “Tragedy in Lockhart”.

It doesn’t happen often, but once in a great while politicians do the right thing for the right reason.


I have a very dear friend who lost her only child, a beautiful daughter, and her son-in-law, a gifted medical researcher and fine man, in the balloon crash that occurred near Maxwell in Caldwell County, Texas on July 30, 2016. As it so happens, the son-in-law was the son of another friend of mine. A 5 year old son, my friend’s grandchild, was, very fortunately, not on the balloon ride. 15 passengers and the pilot were killed that day.


A subsequent investigation concluded that the pilot was probably trying to land the balloon due to wind and weather and, in the process, collided with power lines carrying 340,000 volts of electricity. All of the balloon’s passengers were burned beyond recognition.


The pilot had been licensed in 1993. He had an extensive criminal record dating back to 1987. He had been in prison twice for drug and alcohol-related offenses. He didn’t have a Texas driver’s license. His Missouri license had been revoked for repeated DWIs and he wasn’t even eligible to apply for a Texas license. A toxicology report on the pilot showed he had multiple prescription drugs in his system including Oxycodone, Valium, Prolev and Ritalin. The pilot had multiple medical conditions including insomnia and allergies for which he was taking Benadryl. At least 6 of the medications detected in his blood appeared on the FAA’s “Do Not Fly” or “Do Not Issue” lists. To cap it off, the pilot had a history of complaints from prior customers, including an injury, and on this particular day, chose to fly in weather (wind, fog and clouds) that was questionable enough that other balloon operators in the area cancelled their flights that day.


The horrific crash brought to light what to me is an inexplicable flaw in the law: the pilot of a commercial balloon is not required to have a certificate certifying medical fitness to fly. Instead, the FAA said it would expect the pilot to “self-report” if he were unfit to fly. I can’t begin to imagine how the survivors of the victims must have felt when they were told of this insanity.


It actually gets worse. A pilot can begin to apply for a commercial license with 250 hours of documented flight time. Helicopter pilots must have at lease 150 hours to apply. There are strictly enforced licensing rules that require written testing and demonstrations of proficiency in flying. If you want to be an airline transport pilot, the requirements are: 1,500 hours of flight time (1200 for Helicopter), 500 hours of cross-country flight time, 100 hours of night flight time, and 75 hours instrument operations time (simulated or actual). Other requirements include being 23 years of age, an instrument rating, being able to read, write, speak and understand the English language, a rigorous written examination, and being of good moral character. On the other hand, a person can apply for a commercial balloon certificate with only 35 hours of flight time and an applicant is not required to demonstrate proficiency on bigger balloons such as the one that crashed.


In short, this tragedy exposed gaping holes in safety regulation and a surprising and disconcerting difference in regulatory philosophy between the National Transportation Safety Board (NTSB) and the FAA.


If any situation ever cried out for a regulatory agency to take action, this had to be it. But, nothing happened. After waiting a respectable time, elected officials from the area of the crash approached Representative Lloyd Doggett of San Antonio to ask for his help. Doggett then waited for the FAA to act. After a few more months of inaction by the FAA, Doggett filed a bill called the Commercial Balloon Pilot Safety Act. Doggett’s strategy was to add his bill as an amendment to the bill that authorizes funding for the FAA. The Doggett amendment mandates medical exams for commercial balloon pilots.


The bill, including Doggett’s amendment, passed both Houses last week and is awaiting the President’s signature.


It is too late to help the grieving families, but it is a victory nonetheless.


For much more about this tragedy, read the excellent article by Gretchen M. Sanders, Tragedy in Lockhart, which appears in the October issue of Austin Monthly.