Why are laws created? To protect us, generally, from potentially bad things - traffic lights, theft, truancy, forgery, battery/assault, ... etc. Taxation - how does this "protect us?" Well, it provides our government with money to spend to ensure that we are protected - ie, police, firefighters, fixing roads, creating adequate education/schools, etc.
Of course, sometimes a long-standing law can become out-dated or obsolete due to technological advances and/or political or moral correctness. In addition, some laws have more "bite" than others and, as such, those that we deem minor infraction type laws, are often not enforced to the same degree as major infractions. Why is that? Have you ever driven through a stop sign on a rural road? Have you ever walked across a street where there is no cross-walk? Have you ever built something without obtaining a permit? Have you ever hired a contractor knowing that he (or she) was not licensed? Have you ever gone to a movie in the same theater for which you only paid for an earlier different movie? Have you ever moved seats to a better section when you paid for the cheaper nose-bleed seats? Have you ever driven above a specified speed limit?
Sometimes, the enforcement is lax, as well. The simplest example is the last one above, "speeding." Speeding is the slang term for driving faster than the posted speed limit. If I am on the freeway, and the posted limit is 65 mph, and I look down, and I'm going 66 mph, I'm "speeding." That said, it is also less than likely that a highway patrol officer will pull me over; why? Because the infraction is negligible. And yet, could I get a ticket? Should I? At what speed does the infraction become serious? And, why post a speed limit when it is not the actual limit?
Example 2: Is a building permit necessary to construct a home? No. The purpose of a building permit is to ensure that certain code requirements have been met; but, whether they are or not does not depend on the filing of the permit. That is simply the way that the city building inspector can confirm that the home is built, generally, to code. It's also a great revenue producer. The latter is unfortunately, the usual benchmark for a particular city, however. If a permit is not generated prior to construction, the city will fine the owner, and require that the fee plus a penalty charge be paid, along with the late application for a permit - which, as long as the $$ is there, more often than not, is approved. Moreover, oftentimes, the issue does not even arise.
Recently, in various sport leagues, certain laws have been tested by player infractions. These laws, which have been on the books for awhile, are enforceable through very subjective penalties. Should laws be enforced to the letter of the particular law? If this were done in each game, the game would never end. Each time an infraction is called, the clock stops. Think of basketball, where infractions up and down the court cause longer delays, and a choppy game. This same feeling would occur in life, and, frankly, there are not enough policemen, judges, and other public personnel to enforce all laws to the tee.
What are your thoughts? What do you think?
Have A Great Day!
October 21, 2010
October 20, 2010
Proposition 19 - Legalizing Marijuana Useage in California
In Calif, voters are going to decide whether to legalize marijuana use in an effort to regulate and tax the sale of the drug as well as shift enforcement costs to more serious crimes. The question (concern) is, regardless of the California legalization result, the US Government has already confirmed that it intends to continue its enforcement of federal law, which bans the use of marijuana. As we have learned in recent months, federal law generally trumps state/local law. This power is given to the United States government and Congress by the US Constitution, Article 1, Section 8 - a provision known simply and infamously as "The Commerce Clause".
While legal scholars and experts have struggled with the interpretation of the Commerce Clause over the years, making for some rather interesting Supreme Court cases, the gist of the Clause is that, to the extent that a state tries to regulate commerce which may be considered "interstate" - that is, trade which may cross state lines - roadways, waterways, airways, railways, etc., the federal government trumps such state law.
It is a prime reason why Arizona's recently attempted Immigration Law failed. The US has the absolute right and obligation to regulate and enforce the entry into the United States (not only from its power provided by the Commerce Clause, mind you). Civil Rights Legislation really expanded equal rights in the 1960's due to the Commerce Clause.
Now, Prop 19 appears to be written in an effort to avoid the constraints of the Commerce Clause - it legalizes the use, but not the distribution for sale of marijuana, except under strict guidelines and, likely, taxation by the local governments. That said, it must be purchased with the specific intent to use here in California. If the user intends to sell the drug or use the drug while participating in interstate commerce (ie, traveling), it opens the door for the Feds to enforce federal law, and shut down the operation.
I am not necessarily opposed to Prop 19, to the extent it can be strictly enforced and regulated. Liquor is the simplest example. Driving or otherwise conducting oneself in a manner where being impaired by drugs could create safety issues to the user or others should, clearly, be against the law. DUI or DWI laws are there for a reason. But, if drinking a beer or two or having a glass of wine with dinner is legal, then you would imagine that smoking a minimal amount of marijuana (alone or in confined private space) should not bother anyone.
On the other hand, the clear reverse position is that marijuana users cannot use a minimal amount or otherwise use the drug privately without affecting others. Beer and wine stay in a glass (usually); marijuana, like cigarette smoke, wafts outside the user's body more readily and frequently.
So, what do you think??
Have a Great Day!
While legal scholars and experts have struggled with the interpretation of the Commerce Clause over the years, making for some rather interesting Supreme Court cases, the gist of the Clause is that, to the extent that a state tries to regulate commerce which may be considered "interstate" - that is, trade which may cross state lines - roadways, waterways, airways, railways, etc., the federal government trumps such state law.
It is a prime reason why Arizona's recently attempted Immigration Law failed. The US has the absolute right and obligation to regulate and enforce the entry into the United States (not only from its power provided by the Commerce Clause, mind you). Civil Rights Legislation really expanded equal rights in the 1960's due to the Commerce Clause.
Now, Prop 19 appears to be written in an effort to avoid the constraints of the Commerce Clause - it legalizes the use, but not the distribution for sale of marijuana, except under strict guidelines and, likely, taxation by the local governments. That said, it must be purchased with the specific intent to use here in California. If the user intends to sell the drug or use the drug while participating in interstate commerce (ie, traveling), it opens the door for the Feds to enforce federal law, and shut down the operation.
I am not necessarily opposed to Prop 19, to the extent it can be strictly enforced and regulated. Liquor is the simplest example. Driving or otherwise conducting oneself in a manner where being impaired by drugs could create safety issues to the user or others should, clearly, be against the law. DUI or DWI laws are there for a reason. But, if drinking a beer or two or having a glass of wine with dinner is legal, then you would imagine that smoking a minimal amount of marijuana (alone or in confined private space) should not bother anyone.
On the other hand, the clear reverse position is that marijuana users cannot use a minimal amount or otherwise use the drug privately without affecting others. Beer and wine stay in a glass (usually); marijuana, like cigarette smoke, wafts outside the user's body more readily and frequently.
So, what do you think??
Have a Great Day!
October 8, 2010
Forgery - Getting Called On The Bluff
This morning at breakfast, my younger daughter brought up how well she can write, and how she can even write her friends' names about as well as they can, but that her teacher in school mentioned that if someone actually tries to sign another's name, that person would be sent to the principal's office. This drew immediate attention from both my wife and me. We explained that signing someone else's name can get you into lots of trouble, especially as you get older. My daughter seemed to take this information in stride, and promptly went onto another subject.
Then, this afternoon, as I was perusing a new client's documents, I noticed what seemed to be a forged signature (not of or on behalf of my client, thankfully!). The document in question, however, is a legal document that was passed off as an original.
It reminds me of a famous M*A*S*H TV episode where Corp Klinger is trying (as always) to get shipped back to Toledo. He has the opportunity to sign his release by forging his superior's name, Colonel Sherman T. Potter. In the end, his guilty conscience makes him remove the paper and destroy it ... why did he feel guilty? Because it's a lie, a sham, a fake, not real. It's also a major felony that would have had severe consequences for the Corporal if he had been caught.
In Corporal Klinger's case, ethical and moral considerations were not outwardly shown, though I think it played a role in his decision. His fear was getting caught and being discharged by court-martial and sent to the stockade.
Have you ever thought about forging someone else's name? Why? What was the situation? Did you go through with it? Were you caught? Do you continue to think about it? Just wondering.
Have A Great Day!
Then, this afternoon, as I was perusing a new client's documents, I noticed what seemed to be a forged signature (not of or on behalf of my client, thankfully!). The document in question, however, is a legal document that was passed off as an original.
It reminds me of a famous M*A*S*H TV episode where Corp Klinger is trying (as always) to get shipped back to Toledo. He has the opportunity to sign his release by forging his superior's name, Colonel Sherman T. Potter. In the end, his guilty conscience makes him remove the paper and destroy it ... why did he feel guilty? Because it's a lie, a sham, a fake, not real. It's also a major felony that would have had severe consequences for the Corporal if he had been caught.
In Corporal Klinger's case, ethical and moral considerations were not outwardly shown, though I think it played a role in his decision. His fear was getting caught and being discharged by court-martial and sent to the stockade.
Have you ever thought about forging someone else's name? Why? What was the situation? Did you go through with it? Were you caught? Do you continue to think about it? Just wondering.
Have A Great Day!
October 1, 2010
Ms. Allred's Step Into Politics - Ethical Issues For The Weary
I know, I know, once more, I'm deviating away from my construction 101 series. However, the recent claims by a former housekeeper of Ms. Meg Whitman, and specifically, the attorney representing that former housekeeper, are what drive me to this topic today.
Ms. Gloria Allred, generally perceived as a media starlight in terms of the types of cases she takes, but also generally respected in the legal industry for her skills. By taking Ms. Diaz on as a client at this juncture, however, and the rationale for doing so as explained by Ms. Allred, her representation reeks of ethical violations as well as moral improprieties.
Politicians and Attorneys - ironically, are both looked down upon by the vast majority of citizens and, yet, also respected by the masses as well. Normally, politicians create the laws and enforce the laws. Attorneys represent sides in disputes over how laws apply to a particular set of facts. However, in the instant matter, Ms. Whitman apparently did nothing wrong - upon the actual discovery that her employee was not a legal resident of the United States, she terminated that employee. Technically, she had a duty to disclose the identity and last known address of the illegal resident to the INS as well; morally, she decided not to. She employed someone based on facts obtained through a reputable domestic agency, viewed the person's identification and social security card, and likely interviewed the individual. She paid that person at least 2x minimum wage and retained her services for about 9 years. Then, when she discovered through the own employee's admission, that all was forgery and fraud, and that the employee was illegally in the country, I guess she could have kept mum and helped her obtain her legal status by "pulling a few strings" or by claiming that she'd help her once in office.
Basically, Ms. Whitman was damned if she did and damned if she didn't! But, what is Ms. Allred really representing her client for? Is she representing her to gain legal status? I don't think so. Is she representing her for violations of the Labor Code? Those only apply for legal residents, so I don't think so. Is she claiming that Ms. Whitman falsely kept her client from leaving her work? No. Is she representing her against the IRS? Doubt it. It seems, instead, that she is representing Ms. Diaz solely to upset the political apple cart.
"California Rule of Professional Conduct 3-200: A member (of the Bar) shall not seek, accept, or continue employment if the member knows or should know that the objective of such employment is: (A) To bring an action, ... [or] assert a position in litigation, ... without probable cause and for the purpose of harassing or maliciously injuring any person; ..."
Whether Republican or Democrat or Libertarian or any other Party affiliation, vote on the facts, not allegations that have little to do with anything but someone's wish to gain the political spotlight!
Have A Great Day/Weekend!
Ms. Gloria Allred, generally perceived as a media starlight in terms of the types of cases she takes, but also generally respected in the legal industry for her skills. By taking Ms. Diaz on as a client at this juncture, however, and the rationale for doing so as explained by Ms. Allred, her representation reeks of ethical violations as well as moral improprieties.
Politicians and Attorneys - ironically, are both looked down upon by the vast majority of citizens and, yet, also respected by the masses as well. Normally, politicians create the laws and enforce the laws. Attorneys represent sides in disputes over how laws apply to a particular set of facts. However, in the instant matter, Ms. Whitman apparently did nothing wrong - upon the actual discovery that her employee was not a legal resident of the United States, she terminated that employee. Technically, she had a duty to disclose the identity and last known address of the illegal resident to the INS as well; morally, she decided not to. She employed someone based on facts obtained through a reputable domestic agency, viewed the person's identification and social security card, and likely interviewed the individual. She paid that person at least 2x minimum wage and retained her services for about 9 years. Then, when she discovered through the own employee's admission, that all was forgery and fraud, and that the employee was illegally in the country, I guess she could have kept mum and helped her obtain her legal status by "pulling a few strings" or by claiming that she'd help her once in office.
Basically, Ms. Whitman was damned if she did and damned if she didn't! But, what is Ms. Allred really representing her client for? Is she representing her to gain legal status? I don't think so. Is she representing her for violations of the Labor Code? Those only apply for legal residents, so I don't think so. Is she claiming that Ms. Whitman falsely kept her client from leaving her work? No. Is she representing her against the IRS? Doubt it. It seems, instead, that she is representing Ms. Diaz solely to upset the political apple cart.
"California Rule of Professional Conduct 3-200: A member (of the Bar) shall not seek, accept, or continue employment if the member knows or should know that the objective of such employment is: (A) To bring an action, ... [or] assert a position in litigation, ... without probable cause and for the purpose of harassing or maliciously injuring any person; ..."
Whether Republican or Democrat or Libertarian or any other Party affiliation, vote on the facts, not allegations that have little to do with anything but someone's wish to gain the political spotlight!
Have A Great Day/Weekend!
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