December 12, 2017

Archives for August 2017

Reckoning

“What would you do if money were no object?”

Baloney. Money is always an object. We always have to deal with it.

And now, more than ever, we need to deal with it from a fresh perspective, says University of Connecticut law professor James Kwak, whose book Economism warns against “the pernicious influence of economism in contemporary society.” He defines “economism” as “a distorted worldview based on a misleading caricature of economic knowledge.” Most of us learned what we know about economics in Econ 101, he says, and haven’t moved on since then, while the world of economics has.

The competitive market model can be a powerful tool, but it is only starting point in illuminating complex real-world issues, not the final word. In the real world, many other factors complicate the picture, sometimes beyond recognition.

Still, the answer to econonism is not to reject economics altogether. Rather, the immediate antidote to economism’s simplistic model of reality is more and better economic analysis, which can help identify the fundamental drivers of social phenomena or select the most effective solutions to difficult problems.

His fresh take on “more and better economic analysis” exposes the limitations of theoretical models, statistical analysis, empirical research, laments the academic turf wars fought over them, and acknowledges that the study of economics “does not provide a single, simple answer to all questions.” Still, he says, taking a fresh look at economics “ is a crucial step in throwing off the blinders of economism.”

We’ll hear more from Prof. Kwak in subsequent posts, but first we might consider where we stand on this perspective from Albert Camus:

There exists an obvious fact that seems utterly moral: namely, that a man is always prey to his truths. Once he has admitted them, he cannot free himself from them. One has to pay something.

From The Myth of Sisyphus and Other Essays (1955).

Who am I to disagree with Albert Camus? But on this point I do: I believe that exposing our truths is a critical first step to getting free from them. And I agree with James Kwak that it’s time we reckoned with the truths we hold about economics.

“Reckon” comes from Old English (ge)recenian — “to recount or relate” — and from Dutch rekenen and German rechnen, meaning “to count.” To reckon with our attitudes about money and work, happiness and meaning, means to bring our truths about those topics out into the open where we can evaluate whether they’re making us prey or setting us free. If we don’t do that, we’ll just keep mindlessly paying the price of holding them — wishing we could be Richard Cory, keeping ourselves in a state of meaningless malaise that sometimes — in the case of suicide — literally threatens our existence.

Lots more on economics coming up.

James Kwak is one of those guys: before graduating from Yale law School, he earned a Ph.D. in Intellectual history from UC Berkeley and had a career as a management consultant and software entrepreneur. For a sense of his perspective, check out his article The Curse of Econ 101 from earlier this year.

Alan Watts bridged the East/West philosophical divide. Today, many of his quotes read like a treasure trove of pop psychology advice. The title of his book The Wisdom of Insecurity: A Message for an Age of Anxiety is certainly as relevant for our time as it was when first published it in 1951.

 

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.

Colorado Court of Appeals: Announcement Sheet, 8/31/2017

On Thursday, August 31, 2017, the Colorado Court of Appeals issued no published opinion and 14 unpublished opinions.

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

Tenth Circuit: Unpublished Opinions, 8/30/2017

On Wednesday, August 30, 2017, the Tenth Circuit Court of Appeals issued no published opinion and five unpublished opinions.

Williams v. Corrections Corp. of America, Inc.

United States v. Larsen

Smith v. United States

United States v. Allen

Villecco v. Vail Resorts, Inc.

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

JDF Forms in All Categories Amended by State Judicial

The Colorado State Judicial Branch has been amending its JDF forms in August. To date, there are 246 forms with an August revision date, including forms in every major category.

The JDF forms are being revised to include the following language:

□ By checking this box, I am acknowledging I am filling in the blanks and not changing anything else on the form.
□ By checking this box, I am acknowledging that I have made a change to the original content of this form.
(Checking this box requires you to remove JDF number and copyright at the bottom of the form.)

For a complete list of the Colorado State Judicial Branch’s JDF forms, including those with August 2017 revision dates, click here.

Tenth Circuit: Unpublished Opinions, 8/29/2017

On Tuesday, August 29, 2017, the Tenth Circuit Court of Appeals issued no published opinion and three unpublished opinions.

Singh v. Sessions

Hancox v. Allbaugh

United States v. Rojas-Alvarado

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

Tenth Circuit: Unpublished Opinions, 8/28/2017

On Monday, August 28, 2017, the Tenth Circuit Court of Appeals issued one published opinion and five unpublished opinions.

Barnes v. United States

United States v. Moreno

Scott v. Commissioner of Internal Revenue

United States v. Mitchell

Hagos v. Raemisch

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

Rule 16 of Colorado Rules of Criminal Procedure Amended by Colorado Supreme Court

On Thursday, August 24, 2017, the Colorado State Judicial Branch announced Rule Change 2017(07), amending Colo. R. Crim. P. 16. The changes to Crim. P. 16 amend the prosecution’s discovery requirements, as follows:

(c) Cost and Location of Discovery.

(1) The prosecution’s costs of providing duplicating any material discoverable material electronically to the defense, electronically or otherwise, under this rule shall be funded as set forth in section 16-9-702(2), C.R.S.paid from funds allocated by the general assemblyborne by the party receiving the material, based on the actual cost of copying the same to the party furnishing the material. The prosecution Copies of any discovery provided to a defendant by court appointed counsel shall nototherwisecharge for discoverybe paid for by the defendant. For any materials provided to the prosecution as part of the defense discovery obligation, the cost shall be borne by the prosecution based on the actual cost of duplication. Copies of any discovery provided to a defendant by court appointed counsel shall be paid for by the defendant.

(2) The place of discovery and furnishing of for materials not capable of being provided electronically shall be at the office of the party furnishing it, or at a mutually agreeable location.

The rule change is effective August 24, 2017. For the complete text of the rule change, click here. For all of the Colorado Supreme Court’s adopted and proposed rule changes, click here.

Candidates Selected for Seventh Judicial District Court Vacancy

On Thursday, August 24, 2017, the Colorado State Judicial Branch announced the selection of three candidates for nomination to an upcoming vacancy on the Seventh Judicial District Court. The vacancy will be created by the retirement of Hon. David Westfall, effective August 31, 2017.

The three nominees are Cory Jackson of Ouray, Seth Ryan of Montrose, and Scott Burrill of Grand Junction. Cory Jackson is an Ouray County Court judge; he was appointed to that court in 2014. Seth Ryan is an attorney with the Seventh Judicial District Attorney’s Office. Scott Burrill is a Deputy State Public Defender with the Colorado Public Defender’s Office.

Comments regarding the nominees may be emailed to the governor at gov_judicialappointments@state.co.us. For more information about the nominees, click here.

Tenth Circuit: Unpublished Opinions, 8/25/2017

On Friday, August 25, 2017, the Tenth Circuit Court of Appeals issued three published opinions and five unpublished opinions.

Adams v. American Medical System, Inc.

United States v. Garcia-Rodriguez

AlNahhas v. Robert Bosch Tool Corp.

Todd v. United States

Taos Ski Valley, Inc. v. Nova Casualty Co.

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

Colorado Court of Appeals: Counties Not Liable for Attorney Fees to Defend Disciplinary Action Against District Attorney

The Colorado Court of Appeals issued its opinion in Ruybalid v. Board of County Commissioners of Las Animas County on Thursday, August 24, 2017.

Ruybalid was the District Attorney for the Third Judicial District, and he admitted to serial violations of the Colorado Rules of Professional Conduct during his tenure as District Attorney. Ruybalid believed the counties should have defended him against his disciplinary actions, but the counties refused to pay for his attorney fees and costs. Ruybalid hired an attorney and entered into a settlement, admitting a pattern of discovery violations that led to the dismissal of criminal charges in several cases and stipulating that he did not diligently represent the people and engaged in conduct prejudicial to the administration of justice.

After resolving the disciplinary action, Ruybalid filed a complaint for declaratory relief against the counties, seeking reimbursement of his attorney fees and costs incurred in defending the disciplinary action. The counties moved to dismiss for failure to state a claim, arguing Ruybalid had no right to fees and costs. Ruybalid countered that he had a statutory right to fees and costs, and also an equitable claim. The district court concluded that Ruybalid had failed to state a claim and had no right to fees and costs, and dismissed the complaint. Ruybalid appealed.

The court of appeals noted that the American Rule generally requires parties to pay their own fees and costs. Ruybalid argued that C.R.S. § 20-1-303 required the counties to pay his attorney fees, but the court of appeals disagreed, finding nothing in the rule to require the counties to pay attorney fees or costs. The court refused to infer an exception to the American Rule not explicitly authorized by statute. The court declined to consider the attorney fees and costs incurred in defending Ruybalid’s disciplinary action as “expenses necessarily incurred” in discharging a district attorney’s official duties. The court also noted that Ruybalid failed to allege any facts that tended to support that the expenses incurred were for the benefit of the counties.

The court of appeals affirmed the trial court’s motion to dismiss for failure to state a claim.

Colorado Court of Appeals: Trial Court Within Discretion to Impose Surcharge in Protective Proceeding

The Colorado Court of Appeals issued its opinion in Becker v. Wells Fargo Bank, N.A. on Thursday, August 24, 2017.

Aaron Becker was the conservator on an account set up for his daughter after she was the beneficiary of settlement funds from a personal injury claim. The trial court’s order to set up the restricted account specified that “no funds could be withdrawn from the account except by ‘separate certified order of this court.'” However, due to a “coding error,” Wells Fargo failed to set up the account as a restricted account. The account balance was $56,642.46 as reported in August 2013. Wells Fargo allowed Becker to make unauthorized withdrawals until the balance was negative, then closed the account.

The trial court issued an order to show cause in August 2016 to both Wells Fargo and Becker regarding the withdrawn funds. At the show cause hearing, Becker testified that he used the funds for his personal expenses, as well as to pay rent, groceries, utilities, sports activities expenses, and other expenses for the beneficiary. The court ordered Becker to file an accounting of how the funds were used from August 2013 until the account was closed. He agreed to do so, but never filed the accounting.

The court ordered Becker and Wells Fargo to restore to the account the last amount reported and found them jointly and severally liable for breach of fiduciary duty. The court ordered Wells Fargo to restore $56,642.46 to a new restricted account. 

Wells Fargo appealed, arguing the court should have apportioned liability per C.R.S. § 13-21-111.5. Wells Fargo also requested a hearing to determine the amount of the funds used to benefit the protected person so as not to afford her a double recovery. The trial court denied Wells Fargo’s motion.

On appeal, the court of appeals disagreed with Wells Fargo that C.R.S. § 13-21-111.5 applied, ruling instead that the court properly determined that it was a surcharge action under C.R.S. §§ 15-10-501 to -504. The court noted that the trial court had authority to impose a surcharge on Wells Fargo for failing to correct its error. The court of appeals agreed with Wells Fargo, however, that requiring the bank to restore the full amount of the settlement funds could potentially result in an impermissible double recovery to the protected person, and remanded for a determination of how the conservatorship funds were spent.

Tenth Circuit: Unpublished Opinions, 8/24/2017

On Thursday, August 24, 2017, the Tenth Circuit Court of Appeals issued two published opinions and four unpublished opinions.

Warren v. United States

Vallejos v. Lovelace Medical Center

United States v. Kemp

Alonso-Bernabe v. Sessions

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