November 23, 2017

Archives for 2017

Happy Thanksgiving!

The CBA-CLE offices will close at 2 p.m. on Wednesday, November 22, and will reopen at 8 a.m. Monday morning. Our website is always open, though — visit http://cle.cobar.org to register for programs, order homestudies, or purchase books.

From all of us to all of you, Happy Thanksgiving!

Tenth Circuit: Unpublished Opinions, 11/21/2017

On Tuesday, November 21, 2017, the Tenth Circuit Court of Appeals issued no published opinion and six unpublished opinions.

Adams v. Bear

Torres-Rivera v. Sessions

United States v. Buck

Vue v. Dowling

Isham v. United States

United States v. Sanders

Case summaries are not provided for unpublished opinions. However, some published opinions are summarized and provided by Legal Connection.

Some Suggested Reading

Last week was a rich one for new articles on the topics we’ve been exploring lately, such as economic inequality, neoliberalism, globalization, and the need for an economic paradigm shift. If you’re so inclined, you might like to check these out:

This article from The Boston Review, by Dani Rodrick, an economist whose research covers globalization, economic growth and development, and political economy. He is the Ford Foundation Professor of International Political Economy at Harvard’s John F. Kennedy School of Government. He was previously the Albert O. Hirschman Professor in the School of Social Science at the Institute for Advanced Study in Princeton (2013-2015), and is President-Elect of the International Economic Association. Here’s a sample from the article:

As even its harshest critics concede, neoliberalism is hard to pin down. In broad terms, it denotes a preference for markets over government, economic incentives over social or cultural norms, and private entrepreneurship over collective or community action. It has been used to describe a wide range of phenomena—from Augusto Pinochet to Margaret Thatcher and Ronald Reagan, from the Clinton Democrats and Britain’s New Labour to the economic opening in China and the reform of the welfare state in Sweden.

The term is used as a catchall for anything that smacks of deregulation, liberalization, privatization, or fiscal austerity. Today it is reviled routinely as a short-hand for the ideas and the practices that have produced growing economic insecurity and inequality, led to the loss of our political values and ideals, and even precipitated our current populist backlash.

As we heap scorn on neoliberalism, we risk throwing out some of its useful ideas.

We live in the age of neoliberalism, apparently. But who are neoliberalism’s adherents and disseminators—the neoliberals? Oddly, you would almost have to go back to the early 1980s to find anyone explicitly embracing neoliberalism.

This report from Credit Suisse on the state of global wealth, as summarized here by Time Magazine. Again, a sample:

In its annual report on the state of global wealth, Credit Suisse says 1.1 million new millionaires were created in the U.S. in 2017. That brings the total number of millionaires in the U.S. up to approximately 15,356,000, or about one in every 20 Americans.

Americans now account for 43 percent of the world’s millionaires.

Yet not everyone is benefiting from the booming global economy. Credit Suisse finds that across all global regions, wealth inequality has increased from 2007 to 2016. And in every region of the world except for China, they say, median wealth has actually declined. Despite its plurality of millionaires, the U.S.’s median wealth of $55,876 puts it 21st place in the world, alongside Austria and Greece.

Median wealth per adult favors countries with lower levels of wealth inequality, Credit Suisse said, and there is exceptionally high disparity between the rich and poor in the U.S.

This article from the World Economic Forum, written by Alberto Gallo, Portfolio Manager and Head of Macro Strategies for Algebris Investments, a London-based asset management company which specializes in the global finance sector. The subject is economic inequality. Here’s a sample:

Paul Ryan, speaker of the House of Representatives, recently stated that “in our country, the condition of your birth does not determine the outcome of your life.”

Yet the idea that every American has an equal opportunity to move up in life is false. Social mobility has declined over the past decades, median wages have stagnated and today’s young generation is the first in modern history expected to be poorer than their parents. The lottery of life – the postcode where you were born – can account for up to two thirds of the wealth an individual generates.

Finally, I just finished the book Grave New World: The End of Globalization, The Return of History, by Stephen D. King (2017). Mr. King is Senior Economic Advisor to HSBC as well as an author, journalist, consultant. and specialist advisor to the House of Commons Treasury Committee. His other books include Losing Control: The Emerging Threats to Western Prosperity (2010) and When the Money Runs Out: The End of Western Affluence (2013). Grave New World is unique among those I’ve read in that it offers a multi-national history of globalization:

Globalization is often regarded as ‘one-way traffic’. In the modern age, we think of extraordinary advances in technology… Seen through these technological advances it is easy to believe that globalization is inevitable; that distances are becoming ever shorter; that national borders are slowly dissolving; and that, whether we like it or not, we live In a single global marketplace for goods, services, capital and labor.

Technology alone, however, does not determine globalization, and nor does it rule out competing versions of globalization at any one moment in time.

Globalization is driven not just by technological advance, but also by the development — and demise — of the ideas and institutions that form our politics, frame our economies and fashion our financial systems both locally and globally. When existing ideas are undermined and institutional infrastructures implode, no amount of new technology is likely to save the day.

Our ideas and institutions shift with alarming regularity… Even when patterns of globalization endure for many centuries, they can break down remarkably quickly, leading to dramatic changes in fortune.”

Happy reading! And Happy Thanksgiving! See you next week for a look at “bullshit jobs.”

 

Kevin Rhodes is on a mission to bring professional excellence and personal wellbeing to the people who learn, teach, and practice the law. His past blog posts for the CBA have been collected in two volumes — click the book covers for more information.

Tenth Circuit: Unpublished Opinions, 11/20/2017

On Monday, November 20, 2017, the Tenth Circuit Court of Appeals issued one published opinion and eight unpublished opinions.

Catanach v. Thomson

Event Security, LLC v. Redd

Parrish v. Arvest Bank

Rascon v. Douglas

Rice v. Walcher

Session v. Kim

Nda Seka v. Sessions

Brooks v. Raemisch

Case summaries are not provided for unpublished opinions. However, some published opinions are summarized and provided by Legal Connection.

Hon. Katherine T. Sullivan to Retire from Eagle County Court

On Friday, November 17, 2017, the Colorado State Judicial Branch announced that Hon. Katherine T. Sullivan will retire from the Eagle County Court, effective January 1, 2018.

Judge Sullivan was appointed to the Eagle County Court in September 2006. Prior to her appointment, Judge Sullivan was an Assistant Attorney General in the State of New York, a Deputy District Attorney in the 9th Judicial District in Colorado and an attorney in private practice. Judge Sullivan believes community involvement is important, and has participated in drug and DUI courts, the Hispanic Academy, and as a high school mock trial judge. She received her undergraduate degree from Syracuse University and her law degree from the George Washington University School of Law.

Applications are now being accepted for the upcoming vacancy. Eligible applicants must be qualified electors of Eagle County and must have been admitted to practice law in Colorado for five years. Applications are available from the State Judicial website or from Justice William W. Hood, III, the ex officio chair of the Fifth Judicial District Nominating Commission. Applications must be received no later than 4 p.m. on December 8, 2017; anyone wishing to nominate another must do so by 4 p.m. on December 1.

For more information about the vacancy, click here.

Tenth Circuit: Colorado RTD Manager Found Guilty of Bribery

Tenth Circuit Court of Appeals issued its opinion in United States v. Hardin on Wednesday, October 25, 2017.

Defendant Hardin was the senior manager for the Regional Transportation District (RTD) in Colorado. Part of Hardin’s job responsibilities included setting goals on projects for small business participation and ensuring compliance of small business participation on various projects. Ward was the owner of a busing company as well as a manufacturing representative for Build Your Dream, a manufacturer of automobiles and rechargeable batteries. Ward represents Build Your Dream to sell their merchandise in Denver.

Ward’s busing company contracted with RTD as a service provider for Access-a-Ride, a program that provides local bus transportation in Denver for people with disabilities. From that point on, Ward paid Defendant monthly bribes in exchange for Defendant’s help to secure a contract with RTD, as RTD was preparing to solicit bids for the purchase of shuttle buses. Ward would meet with Defendant every month and pay Defendant to help Ward win the contract. Further, Defendant gave Ward information on potential competitors to allow Ward to tailor his proposal to RTD.

Unbeknownst to Defendant, Ward had previously pleaded guilty to tax evasion and, to receive a reduced sentence, relayed Defendant’s original bribe request to the Federal Bureau of Investigation. Ward then became the FBI’s confidential informant to investigate Defendant for bribery. The meetings and conversations between Ward and Defendant were all recorded.

Defendant was charged with four counts of committing bribery involving a program that receives federal funds. The jury found Defendant guilty of three counts relating to the proposed shuttle bus contract. Defendant appealed, arguing that, by dismissing one count, it could not be shown that he had solicited the requisite $5,000 threshold that is set by the federal-program bribery statute. The Tenth Circuit found that the $5,000 pertains to the subject matter of the bribe and Ward paid for Defendant’s help with respect to the lucrative shuttle bus purchase contract. The Tenth Circuit was persuaded that the statute was sufficiently definite to give Defendant fair notice of the criminality of his conduct.

The Tenth Circuit Court of Appeals AFFIRMED Defendant’s conviction and sentence.

Tenth Circuit: Unpublished Opinions, 11/17/2017

On Friday, November 17, 2017, the Tenth Circuit Court of Appeals issued one published opinion and no unpublished opinion.

Case summaries are not provided for unpublished opinions. However, some published opinions are summarized and provided by Legal Connection.

Tenth Circuit: Appeal of Fracking Regulation Unripe Due to Uncertainty of Future

The Tenth Circuit Court of Appeals issued its opinion in State of Wyoming v. Zinke on Thursday, September 21, 2017.

In this case, the Tenth Circuit Court of Appeals is asked to decide whether the Bureau of Land Management (BLM) acted beyond its statutory authority when it created a regulation that governed hydraulic fracturing (fracking) on lands owned by the United States.

As fracking has become more common, public concern has increased about whether fracking is contributing to contamination of underground water sources. The BLM responded by preparing a regulation that attempted to modernize the existing federal regulations governing fracking on lands owned by the United States by increasing disclosure of the chemicals used in fracking, updating the standards for wellbore construction and testing, and addressing management of water used in the fracking process.

The finalized, published fracking regulation attempted to regulate fracking in four ways: by (1) imposing new well construction and testing requirements; (2) imposing new flowback storage requirements; (3) imposing new chemical disclosure requirements; and (4) generally increasing BLM’s oversight of fracking.

Shortly before the fracking regulation was to take effect, the Independent Petroleum Association of America (IPAA) and the Western Energy Alliance (WEA) filed a petition for review under the Administrative Procedure Act (APA), opposing the new regulation. North Dakota, Utah, and the Ute Indian Tribe also intervened.

The petition for review asserted that the fracking regulation violated two provisions of the APA in two ways: (1) the regulation was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law; and (2) it was in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.

The district court concluded that no statute authorized the BLM to regulate fracking. The district court reasoned that states may regulate underground injections of any substance, not the federal government. According to the district court, only the states could regulate fracking.

While the parties supporting the regulation brought an appeal, the BLM asked this court to hold these appeals in abeyance, explaining that President Trump’s Executive Order required the Department of the Interior to review its regulations, including the fracking regulation, for consistency with the policies and priorities of the new administration. Another Executive Order directed the Secretary of the Interior, as soon as practicable, to publish for notice and comment proposed rules suspending, revising, or rescinding the fracking regulation at issue. The Secretary of the Interior then stated that the BLM would rescind the regulation in full.

The issue addressed in this appeal is whether the BLM has the authority to regulate fracking on lands owned or held in trust by the United States and thereby to promulgate the fracking regulation. The Tenth Circuit Court of Appeals held that the case was not ripe for review, as there was no hardship to the parties. The only harm suffered will be the continued operation of oil and gas development on federal lands, which represents no departure from the status quo since 2015. Further, the BLM will be able to proceed with its proposed rule rescinding the fracking regulation, and would face more uncertainty if these appeals were to remain under advisement. The appeal was held to be unripe and unfit for judicial review.

The Circuit dismissed the appeals, finding that the subject matter is unripe and the record is notably undeveloped or the future is particularly uncertain.

The Tenth Circuit Court of Appeals DISMISSED the appeals as prudentially unripe, VACATED the district court’s judgment invalidating the fracking regulation, and REMANDED with instructions to dismiss the underlying action without prejudice.

Tenth Circuit: Unpublished Opinions, 11/16/2017

On Thursday, November 16, 2017, the Tenth Circuit Court of Appeals issued one published opinion and two unpublished opinions.

United States v. Jenks

United States v. Portillos

Case summaries are not provided for unpublished opinions. However, some published opinions are summarized and provided by Legal Connection.

The Tide May Be Rising, But Some Boats Are Sinking

Last week I quoted from Ryan Avent’s book The Wealth of Humans: Work, Power, and Status in the Twenty-First Century (2016), which makes the following points:

  • The rising tide of neoliberal economic policy did in fact lift all boats from the post-WWII years through its heyday in the 70’s and 80’s.
  • In particular, it benefited the wealth and income of individual wage-earners — most dramatically in countries where government-centric models such as social democracy and communism had previously been in charge.
  • But since then, continued allegiance to neoliberal policy has had the reverse effect, resulting in rapidly growing economic inequality which is leaving wage-earners behind.
  • The problem seems to be that, since the 80’s, the “lifts all boats” paradigm has not kept pace with the altered economic dynamics brought on by globalization and the technological revolution. The result has been a shift in wealth creation and sustainable income away from the wage-earners neoliberalism once benefited.
  • Continued allegiance to the neoliberalism is undermining the traditional concept of working for a living.

This week, we’ll finish with Arent’s analysis, again quoting from his book:

  • As a result of the above, the continuing viability of neoliberal economic policy is being questioned.

Around the world, dissatisfaction with the fruits of economic integration fuels inward-looking political movements: protectionist in some places, separatist in others. Some politicians find themselves able to gain traction by playing identity politics or by criticizing institutions of liberal democracy. Many succeed through withering critiques of the elites who minded the tiller over the last few decades. Faith in markets and their ability to generate broad-based growth has been shaken.

  • Questioning neoliberalism also challenges its support base of cultural, societal, and national institutions.

In a way, it would be much easier if the robots were simply taking all the jobs. Solutions might not be any more straightforward to come by, but the sight of millions of robot dog-walkers and sanitation workers strutting through crowds of unemployed humans would at least be clarifying.

Instead, the remarkable technological progress of the digital age is refracted through industrial institutions in ways that obscure what is causing what. New technologies do contain the potential to revolutionize society and the economy. New firms are appearing which promise to move society along this revolutionary path. And collateral damage, in the form of collapsing firms and sacked workers, is accumulating.

But the institutions we have available, and which have served us well these last two centuries, are working to take the capital and labour that has been made redundant and reuse it elsewhere. Workers, needing money to live, seek work, and accept pay cuts when they absolutely must. Lower wages make it attractive for firms to use workers at less productive tasks . . . [and reduce] the incentive to invest in labour-saving technology.

  • A new economic paradigm seems to be indicated, but its coming won’t be easy.

This political era [the post-war surge of neoliberalism] is at an end.

[I]ncomes must rise. Not just the incomes of China’s middle class and the rich world’s 1 per cent. But achieving higher incomes is a fraught business, both economically and politically.

This process will not end without a dramatic and unexpected shift in the nature of technology, or in the nature of economic institutions.

Neoliberalism’s apparent faltering threatens many economic ideas that have come to be held sacred, such as the notion of working for a living, which we saw a few posts back is revered as a moral virtue by Communists and Christians alike. These kinds of notions are deeply rooted in the minds —literally, in the neurological wiring — of the human beings who have inherited them and the values they stand for. As such, they are much more than economic ideas, they are the personal and cultural narratives that define our identities and guide our choices, both individually and collectively.

These kinds of entrenched cultural ideals will not go quietly into the night. Instead they will retrench and aggressively pushback against an interloper. Next time, we’ll look at one of those reactionary responses: the advent of “bullshit jobs,” which contribute much to current workplace dissatisfaction.

And just for fun, here’s the “not go quietly into the night” speech from Independence Day, and here’s Dylan Thomas’s “Do Not Go Gentle Into That Good Night.”

 

Kevin Rhodes left a successful long-term law practice to scratch a creative itch and lived to tell about it… barely. Since then, he has been on a mission to bring professional excellence and personal wellbeing to the people who learn, teach, and practice the law. He has also blogged extensively and written several books about his unique journey to wellness, including how he deals with primary progressive MS through an aggressive regime of exercise, diet, and mental conditioning.

Colorado Court of Appeals: Announcement Sheet, 11/16/2017

On Thursday, November 16, 2017, the Colorado Court of Appeals issued six published opinions and 31 unpublished opinions.

People v. Deleon

Miller v. Hancock

Sos v. Roaring Fork Transportation Authority

Robertson v. People

People in Interest of M.M. and P.M.

Berthold v. Industrial Claim Appeals Office

Summaries of these cases are forthcoming.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

Colorado Supreme Court: Plaintiff Established Sufficient Contacts Under Stream of Commerce Doctrine to Withstand Motion to Dismiss

The Colorado Supreme Court issued its opinion in Align Corp. Ltd. v. Boustred on Monday, November 13, 2017.

Stream of Commerce Doctrine—Personal Jurisdiction

In this case, the supreme court considers the stream of commerce doctrine to determine the prerequisites for a state to exercise specific personal jurisdiction over a non-resident defendant. The court concludes that World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980), sets out the controlling stream of commerce doctrine. That doctrine establishes that a forum state may assert jurisdiction where a plaintiff shows that a defendant placed goods into the stream of commerce with the expectation that the goods will be purchased in the forum state. Applying that doctrine to this case, the court then concludes that the plaintiff made a sufficient showing under that doctrine to withstand a motion to dismiss. Accordingly, the supreme court affirms the judgment of the court of appeals.

Summary provided courtesy of Colorado Lawyer.