An Essex County Grand Jury today returned nine indictments against Lawrence School Superintendent Wilfredo Laboy, eight of which charge him with “fraud or embezzlement by a city officer.” He and his son, Wilfredo Laboy, II, of Methuen, who was indicted for perjury for allegedly lying to the Grand Jury, will be will be arraigned Thursday in Salem Superior Court.

“These indictments stem from a lengthy investigation between the Essex District Attorney’s Office, Lawrence Police, Massachusetts State Police and the Office of State Auditor Joseph DeNucci,” said Essex District Attorney Jonathan W. Blodgett. “The crimes alleged involve a serious violation of the public trust.”

As stated in the indictments, Laboy, on divers dates from March 9, 2004 – March 9, 2010, allegedly had school personnel do work at his home and complete errands for his benefit while they were on school time and being compensated by the Lawrence Public Schools. The indictments allege that Lawrence school employees provided electrical work at the defendant’s home in Methuen and met with contractors at the defendant’s home during school hours.

The indictments also allege that employees of the Lawrence School Department provided graphic design work, materials and produced copies of menus for Sal’s Pizza of Methuen.
The employees also provided graphic design work and produced copies of seminar materials, fliers, invitations, brochures and other documents for the Association of Latino Administrators and Superintendents, while on school time and being compensated by the Lawrence Public Schools.

In addition, Lawrence school employees provided computer technical support for the defendant’s computers at his Methuen home during school hours. They also removed trash from his house and disposed of it on Lawrence Public School property.

The indictments also allege that school employees provided transportation for his adult son, Wilfredo Laboy, II, from his home in Methuen to his workplaces at Sal’s Pizza in Lawrence and North Andover. Lawrence school employees also provided transportation during school hours for Laboy’s grandchildren from their school in Methuen.

Finally, Laboy is charged with possession of alcoholic beverages on a premise used for public school purposes and under the charge of a public officer.

Israel Reyes of Lawrence was indicted on two counts of larceny over $250. It is alleged that on divers dates from and between March 9, 2004 to March 9, 2010, he directed graphic designers employed by the Lawrence Public Schools to provide graphic design, printing materials and produce copies of political campaign literature and other personal documents for him. He allegedly ordered the graphic designers to provide graphic design, printing materials, and produce copies of political campaign literature for Massachusetts Representative Barry Finegold.

A fourth defendant, Mark Rivera, of Haverhill, was indicted on seven counts of larceny over $250. It is alleged that on divers dates from March 9, 2004 to March 9, 2010, he misappropriated materials from the graphic design department of the Lawrence Public Schools for his benefit or the benefit of other private persons while the graphic designers, employees of the Lawrence Public Schools, were compensated by the Lawrence School Department.

According to the indictments, Rivera allegedly directed the graphic designers to provide graphic design, printing materials and produce political campaign literature for Priscilla Baez for Lawrence School Committee; Peter Larocque for Lawrence School Committee; Gregory Morris for Lawrence School Committee; Israel Reyes for Mayor of the City of Lawrence; Omaira Mejia for Lawrence School Committee; and for then-Massachusetts Representative William Lantigua.

The investigation determined that not all of the candidates knew that printing was being done on their behalf by the school employees.

Rivera also directed the graphic designers to provide graphic design, printing materials, and to produce copies of seminar materials, fliers, brochures, invitations and other documents for the Association of Latino Administrators and Superintendents.

The cases will be prosecuted by Essex Assistant District Attorney Maureen Wilson Leal, assisted by Special Counsel Thomas M. Donovan.
The investigation remains ongoing.

This type of news makes it hard to believe Lawrence School’s policy statement, “The Lawrence Public Schools strictly adheres to a Code of Conduct that underscores the District’s commitment to integrity and our shared goals of creating a college-going culture for all students.

The School Committee expects members of its professional staff to be familiar with the code of ethics that applies to their profession and to adhere to it in their relationships with students, parents, coworkers and officials of the Lawrence Public Schools.”

For the sake of the community and the school hopefully these allegations can either be dismissed quickly or contained as isolated incidents.

“Because we know that about 12% of America’s schools produce 50% of America’s dropouts, we’re going to focus on helping states and school districts turn around their 5,000 lowest-performing schools in the next five years,” President Obama said this week.

Turning around the nation’s 5,000 lowest-performing schools, Secretary Duncan has said, is “part of our overall strategy for dramatically reducing the drop-out rate, improving high school graduation rates and increasing the number of students who graduate prepared for success in college and the workplace.”

The Obama administration is making an historic commitment to support state and local education leaders in turning around the nation’s lowest-achieving schools.

The U.S. Department of Education is providing $4 billion for this effort. To qualify for this funding under the Title I School Improvement Grant program, states must identify their lowest-performing schools in economically challenged communities and transform those schools using one of the four following intervention models:

Turnaround model: Replace the principal and rehire no more than 50% of the staff, and grant the principal sufficient operational flexibility (including in staffing, calendars/time and budgeting) to fully implement a comprehensive approach to substantially improve student outcomes.

Restart model: Convert a school or close and reopen it under a charter school operator, a charter management organization, or an education management organization that has been selected through a rigorous review process.

School closure: Close a school and enroll the students who attended that school in other schools in the district that are higher achieving.

Transformation model: Implement each of the following strategies:

(1) replace the principal and take steps to increase teacher and school leader effectiveness;

(2) institute comprehensive instructional reforms;

(3) increase learning time and create community-oriented schools; and

(4) provide operational flexibility and sustained support.

As Secretary Duncan has said repeatedly, this is difficult work—he took it on as CEO of Chicago’s public schools. No matter which model is used, turning around a chronically low-performing school requires hard work from our best teachers and school leaders.

State and local leaders around the country have taken on the challenge, with encouraging results.

In Chicago, Harvard School of Excellence, operated by the Academy for Urban School Leadership (AUSL), is an example of the turnaround model. Before 2007, it ranked among the 10 worst elementary schools in all of Illinois. Now, three years later, it has key components of the turnaround model: a new principal; highly trained and effective teachers; a curriculum based on high expectations and frequent assessments; and a culture of intellectual curiosity and personal respect.

The Academy for Urban School Leadership is a Chicago-based non-profit organization that partners with Chicago Public Schools to manage several chronically under-performing elementary and high schools.

AUSL’s stated mission is to “turn around” Chicago’s most underperforming schools by improving student performance and achievement through a disciplined transformation process that is built on a foundation of specially trained teachers.

AUSL was founded in 2001 by Martin J. Koldyke, a venture capitalist and founder of the Golden Apple Foundation. In founding AUSL, Koldyke engaged a group of business and community leaders to design a school management program built on the the belief that well-prepared teachers are the key to transforming high-poverty, poorly-performing schools into places where students can succeed.

As of the 2009-2010 school year, AUSL is managing 14 Chicago Public Schools (11 elementary schools and 3 high schools) with plans to add more schools to its network in coming years.

In just two years, the number of Harvard students meeting or exceeding state testing standards has increased 25%. And AUSL is applying its turnaround model to more struggling schools in Chicago.

Additional Reading: The Limits of Sanctions in Low-Performing Schools

“The article reports on a study of 11 schools that were labeled as low-performing by the state accountability systems of Maryland and Kentucky, nationally known for complex performance-based assessments. The study shows that putting schools on probation only weakly motivated teachers because the assessments were largely perceived as unfair, invalid, and unrealistic.

Administrators responded with control strategies that rigidified organizations, forestalling dialog and learning processes. Instructional reform developed only feebly. On the other hand, some schools remedied inefficiencies and were able to “harvest the low-hanging fruit.” The schools struggled with severe problems of teacher commitment.”

In a case not very dissimilar from the recent Detroit Public School scam:

“Details of the charges show the office worker is accused of receiving kickbacks from special pay she authorized between 2003 and 2005 to a teacher’s aide and truck driver for after-school coaching work that never was performed. All three were charged with embezzlement and false pretenses.”

Attorney General Martha Coakley announces that a former Seekonk school teacher was arraigned in connection with stealing school funds and secretly accepting over $5,000 in gratuities for organizing student trips. Jean Lamoureux, age 44, of Cape Coral, FL, formerly of Rehoboth, MA, was charged with accepting Improper Gratuities (5 counts) and Larceny.

According to authorities, Lamoureux worked as a middle school teacher in Seekonk, MA for 13 years, also serving as a faculty advisor in charge of organizing student trips. Authorities allege that on five separate occasions between 2006 and 2008, Lamoureux improperly accepted commission payments from a travel agency, in violation of the school’s written policy.

Authorities allege that the travel agency paid Lamoureux $25 for each student that signed up for the trips. According to authorities, Lamoureux deposited checks totaling $5,219 in his personal bank account without disclosing the transactions to school administrators.
In addition, authorities allege that Lamoureux committed larceny when he misappropriated a reimbursement check belonging to the school totaling $1,840 from the travel agency. He deposited the school’s check in his personal bank account without notifying school administrators of the transaction. Lamoureux resigned from his teaching position in January 2009.

Lamoureux was arraigned yesterday in Taunton District Court at which time he entered a plea of not guilty and was released on personal recognizance. Lamoureux is scheduled to appear in court on April 8, 2010, for a pre-trial conference. Judge Gregory Phillips presided over the arraignment.

This case is being prosecuted by Assistant Attorney General David Waterfall of Attorney General Martha Coakley’s Corruption and Fraud Division with assistance from the Inspector General’s Office, the Massachusetts Department of Elementary and Secondary Education, and State Police assigned to the Attorney General’s Office.

Stephan Kinsella has a great recap of the Mises recent podcast, “I was listening to the Mises Podcast and came across Rothbard’s wonderful 1972 lecture Scarcity and Choice. Around 34:09 to about 38:00 he discusses why specialization and the division of labor is useful, indeed essential, for civilization and human life and prosperity. He criticizes those intellectuals who still maintain that we should go back to a regime of self-sufficiency; that the specialization and division of labor is evil and alienating.

He mocks the intellectuals who, as Marx put it, dream of some communist utopia where everyone would spend an hour at the factory, an hour at the field, an hour writing and thinking, and so on…

In case readers were wondering Murray Newton Rothbard (March 2, 1926 – January 7, 1995) was an American intellectual, individualist anarchist, author, and economist of the Austrian School who helped define modern libertarianism and popularized a form of free-market anarchism he termed “anarcho-capitalism”. Rothbard wrote over twenty books.

Building on the Austrian School’s concept of spontaneous order in markets, support for a free market in money production and condemnation of central planning, Rothbard sought to minimize coercive government control of the economy. He considered the monopoly force of government the greatest danger to liberty and the long-term wellbeing of the populace, labeling the State as nothing but a “gang of thieves writ large” – the locus of the most immoral, grasping and unscrupulous individuals in any society.

…As Rothbard notes, no one will be a great mathematician by devoting half an hour a day to it before rushing off to the fields (think of Malcolm Gladwell’s “10,000 hour rule” in Outliers, according to which “the key to success in any field is, to a large extent, a matter of practicing a specific task for a total of around 10,000 hours”); so, without specialization, creative, intellectual development would be impossible; as would economic prosperity. We would “give up most of the production of the human race.”

Rothbard seemed to find a bit bewildering that there were, back in 1972, still intellectuals favoring self-sufficiency and attacking the division of labor and capitalism as being alienating. After all, didn’t they understand what pre-industrialist conditions were like?

Didn’t they understand how much worse was the quality of life when self-sufficiency was the rule? But similar claims still abound, even among some libertarian intellectuals, mostly left-libertarians and their fellow travelers, who seem to be nostalgic for the simpler, agrarian times of yore (see Left-Libertarian Science Fiction: An Oxymoron?; On the Fate of our Left-Libertarian Comrades’ Ideas).

It is no doubt true that state subsidization and intervention in various aspects of the market, such as transportation and protectionist or other laws that raise barriers to entry to smaller firms, have distorted the economy and made self-sufficiency more expensive or less feasible than it otherwise would be, but this does not imply that there is something wrong with the institution of employment, with firms, with industrialism, international trade, or the division labor.

Massachusetts Attorney General Martha Coakley issued the following statement today regarding the anti-bullying legislation released by the Joint Committee on Education yesterday:

“While bullying has been a pervasive problem in our communities for years, 21st century technologies have only magnified the problem, allowing children to bully and harass one another with the mere click of a mouse. The bill released by the Joint Committee on Education yesterday is an excellent first step toward addressing the root causes of bullying through education and bringing schools and communities together to proactively prevent bullying in the first place.

I applaud the Legislature’s leadership on this issue—particularly Representative Martha Walz and Senator Robert O’Leary–and look forward to working with the Legislature, state agencies, and other community stakeholders toward a comprehensive approach to tackling this problem.”

Historically, bullying among school children and youth has not been a topic of great public concern. Many adults have viewed the experience of being bullied as a rite of passage for children and youth. In recent years, however, attention to bullying among children has increased dramatically among school personnel, the general public, and policymakers. The attention is well deserved. Recent research indicates that bullying is prevalent among American school children, directly involving approximately 30% of school children within a school semester.

Mass. Law states, “For purposes of this section, “bullying” is any written or verbal expression or physical act or gesture or a pattern of behavior intended to cause emotional distress of a student in a public school, on public school grounds, in public school vehicles, at public school bus stops or at public school activities or sanctioned events.

In order to provide a learning environment that is safe, conducive to the learning process and free from unnecessary disruption, following consultation with parents, guardians, teachers, administrators, students, student councils where applicable and, where appropriate, the community at large, each public school district shall promulgate and implement a safe school plan.

The plan shall state specific policies in effect designed to prevent bullying from occurring. The plan shall also contain procedures for disciplining students who bully. Each public school shall submit annually, in a manner and by a date determined by the department of education, a written report to the superintendent of its respective school district concerning the learning environment in the school for the previous year.

Each school district’s superintendent shall compile the reports from every school in the district and shall annually submit the compiled report to the department of education in a format and on a date specified by the department.

The reports shall include, but not be limited to, the safe school plan in effect in the school district, the number of bullying incidents reported at each school and the total number of incidents reported in the district. The reports shall be made available to the public annually.”

According to wikipedia, “When the tradition of Black History Month had started in the US, many in mainstream academia had barely begun to explore black history. At that point, most representation of blacks in history books was only in reference to the low social position they held as slaves and their descendants, with infrequent exceptions such is that of George Washington Carver. In the US, Black History Month is also referred to as African-American History Month. W.E.B. DuBois’ 1935 work Black Reconstruction was an early work in history that pointed to black contributions”

Martha Coakley’s office announced, “The same year Martin Luther King gave his historic “I have a dream speech” and hundreds of thousands marched in Washington DC in the name of civil rights, Massachusetts swore in Edward William Brooke, III, as its 39th Attorney General. Brooke made history as the first African American elected to higher office in Massachusetts and would also make history in 1967 when he became the first African American to be elected by popular vote to the U.S. Senate. Brooke would remain the only person of African heritage sent to the Senate in the 20th century until Democrat Carol Moseley Braun in 1993.

On the role of his race in his life, Brooke told the Boston Globe in 2000: “I’ve never tried to run away from my race. I was born a black man. You know that in your bones as soon as you are able to understand this country. … My approach to life about race is I don’t see the difference between black people and white people. I wanted to go to Washington to bring people together who had never been together before. I wanted to break down the barriers between races.”

In the senate, Brooke was known as a tireless advocate against discrimination in housing and on behalf of affordable housing. As Attorney General, Brooke made his mark as a vigorous prosecutor against organized crime.

“The election of Edward Brooke first as Attorney General and then as senator is a part of our state’s history we can all be proud of. Senator Brooke’s leadership and his legacy as a tireless housing advocate who dedicated much of his public service to creating more housing opportunities for low income citizens still lives on today in federal programs that continue to help people. As we celebrate, honor and reflect on the heroes of the civil rights movement during Black History Month, Senator Brooke is a natural choice to honor and pay homage to,” said Attorney General Martha Coakley.

Brooke continued to work as a lawyer after he left the senate and has been honored many times for his public service. Brooke is 90-years-old and lives with his family in Florida.”

It seems like everyone these days is trying to figure out how to make ends meet. Whether it’s the desire to save that million+ condo or just stave off the unemployment line workers in every profession is having to tighten their belts. One lawyer found a positive solution to facing the recession, he became a teacher!

Justin Charity with the US Department of Education recalls the story of a Virginia high school teacher who recently handed over his chalk to Secretary Duncan for a guest lecture on the federal education budget started his career not in a classroom but in a courtroom.

Up until six years ago, Greg Walsh was a lawyer. He had begun his career in Washington, DC, as a civil litigation attorney, later working his way up through the leadership of a DC-based trade association. Approaching age 50, Walsh decided to pursue what he now describes as “a different kind of excitement.”

When he arrived at Falls Church High School in 2003, Walsh was assigned to teach world history to 9th graders. Within a year the social studies department shifted him to teaching AP government and politics, along with an elective course of his own making – “Law in Action.” In 2009 the Center for Civic Education recognized Walsh as one of three winners of its annual American Civics Education Teacher Award.

Walsh suggests that litigators are, by nature, educators; both professions are an art of organization and presentation. He notes, “I’m using the same set of skills, basically, but with much more forgiving clientele.” His enthusiasm for teaching, merged with the experiences of his prior career, makes for fascinated students and one of the livelier classrooms in all of northern Virginia. After hours, Walsh sponsors the school’s Model United Nations club and coaches Falls Church’s mock trial team.

The United States can expect to lose a third of our veteran educators over the next four years. As legions of Baby Boomers settle into retirement, schools across the country will seek to recruit new waves of able teachers. While Secretary Duncan hopes to inspire our young people to continue to answer the call to work in America’s classrooms, he is also looking to attract experience and enthusiasm of all ages, from all sorts of professional backgrounds.

Work history isn’t Walsh’s only advantage in the classroom, he notes:

There are a lot of teachers who, like myself, are career switchers. While we may lack the immediacy of life experiences that younger teachers share with students, many of us bring a more refined work ethic, realistic expectations, and a host of career and personal experiences directly related to the material that we teach. … More significantly, many “older” teachers at the primary and secondary levels have raised families, or may be raising children of the same age that we teach. In many cases, that experience sensitizes us to personal, social, or family crises underlying a student’s poor academic performance. Often, age and experience can give a teacher more cachet in dealing with parents and getting a student started on a new path.

While Walsh fondly recalls his days as a trial attorney in the nation’s capital, he says he has never regretted his decision to teach kids for a living instead. He encourages other ex-professionals to commit themselves to a classroom but offers this advice for those considering the switch.

Experience teaching to make certain that you’re suited for it. Volunteer for substitute teaching assignments (preferably long-term ones) at the level you would be teaching. Observe teachers and students in a variety of schools. Spend some time crafting interesting lesson plans, assessments, and rubrics that meet curriculum standards and are sensitive to the learning needs of different students.

For yourself and your students, teach in a subject area that you’re absolutely passionate about. Students want relevant knowledge and will engage with a teacher who credibly conveys the importance and appeal of his/her subject.

Don’t teach if you’re fleeing from the oppression of an earlier career. Only teach if you’re fleeing to teaching. Like any profession, teaching has its disadvantages, and a high turnover rate among young teachers proves the point. Come to the job with a positive, but realistic, attitude, and if you can bring your old career along with you, so much the better.
Don’t expect that Walsh’s job will be one of those teaching positions opening up anytime soon. “I’m only 53 years old, just getting started in this profession,” he said, “and assume that I’ll be good for at least 17 more years!”

Libertarianism is a political theory that advocates the maximization of individual liberty in thought and action and the minimization or even abolition of the state.[4][5] Libertarians embrace viewpoints across a political spectrum, ranging from pro-property to anti-property (sometimes phrased as “right” versus “left”) and from minimal state (or minarchist) to openly anarchist. (Wiki)

The notion of advancing libertarian principles through litigation – particularly federal civil rights litigation – has a design flaw that’s rarely acknowledged: Lawyers are agents of the state. That applies equally to lawyers who happen to be libertarians. Unlike other regulated professions, attorneys are “officers of the court” in name and fact. Ultimately, their professional self-interest lies in expanding the size and scope of the state’s court system, not in protecting individual rights.

Last year, I criticized Cato Institute chairman Robert Levy, an attorney, for joining a motion seeking $3.5 million in attorney fees related to the Supreme Court’s five-to-four decision in Heller v. District of Columbia, a ruling that affirmed the state’s authority to restrict the right of individual self-defense while preserving only a limited Second Amendment privilege to possess firearms.

Levy and his co-counsel claimed they were entitled not just to regular fees but certain “enhancements” based on their level of skill, success in winning a rhetorical victory over the meaning of the Second Amendment, and the risks to their public reputations – even among fellow libertarians – for bringing an unpopular case. This petition for attorney fees remains stalled before a District of Columbia judge.

The delay arises from the Supreme Court’s decision to hear a case involving a similar request for attorney fees. The Heller lawyers can’t collect until the Gang of Nine decides Perdue v. Kenny A. Oral arguments were heard in October, and a ruling can come at any time.

In Perdue, a legal advocacy group, Children’s Rights, Inc., sued the State of Georgia (Sonny Perdue is the governor) over abuses in the state’s foster care system; the class action complaint alleged federal constitutional and civil rights statute violations. Following mediation, the federal court overseeing the case entered a consent decree favoring the CRI plaintiffs. Federal statute permits the plaintiff’s attorneys to recover “reasonable” fees.

The district court reduced the billable time to just over $6 million but “enhanced” that amount 75%, for a total award of over $10.5 million. The court justified the $4.5 million enhancement by citing the “far superior” quality of counsel’s legal services, and the “truly exceptional” relief obtained for their clients in the consent decree. On appeal, the Eleventh Circuit Court of Appeals in Atlanta affirmed the decision and award; one of the judges, however, noted that the $4.5 million “enhancement” appeared inconsistent with Supreme Court precedent, although more recent Eleventh Circuit precedent supported it.

The question now before the Supreme Court is whether
a reasonable attorney’s fee award under a federal fee-shifting statute ever be enhanced based solely on quality of performance and results obtained when these factors already are included in the lodestar calculation?

The “lodestar calculation” simply refers to hours-times-rate. The key word is “reasonable,” since the federal statute (42 U.S.C. § 1988) that authorizes fee awards states:
In any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318 [20 U.S.C. 1681 et seq.], the Religious Freedom Restoration Act of 1993 [42 U.S.C. 2000bb et seq.], the Religious Land Use and Institutionalized Persons Act of 2000 [42 U.S.C. 2000cc et seq.], title VI of the Civil Rights Act of 1964 [42 U.S.C. 2000d et seq.], or section 13981 of this title, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs… (Italics added)

So are fee enhancements ever “reasonable”? At first impression, the answer is “no,” because in a normal attorney-client relationship, the attorney is not permitted to arbitrarily multiply a final fee based on the quality or outcome of the work. A client agrees to pay a certain hourly rate and that’s that. Some lawyers, of course, work on contingency, but even there, it’s a previously agreed-upon percentage of the final award.

But nothing is ever that simple, especially when you’re dealing with attorneys and their fees. A number of lawyer-based groups filed “friend of the court” briefs in support of the lower courts’ decisions in Perdue. One such brief came from a coalition of seven libertarian-leaning legal groups*, including the Institute for Justice and the Cato Institute. (The Liberty Legal Institute is listed as “counsel of record,” so for simplicity’s sake, I’ll refer to this filing as the “Liberty Brief.”)

The Liberty Brief maintains that fee enhancements are essential “to enforce civil rights guaranteed by the Constitution and by statute,” because it creates a “free market” to attract skilled attorneys:

As the representatives of the American taxpayers, Congress could authorize a massive expansion of the Department of Justice to cover all civil rights cases. It could, alternatively, privatize the system and allow free market principles to encourage private attorneys to undertake the massive effort of private attorneys general, holding government power accountable to the citizen-taxpayers…

…Congress chose to privatize the system, provide market incentives to private attorneys to enforce civil rights, and subject government to the proverbial “invisible hand” of local taxpayers to hold elected representatives responsible for the waste of taxpayer dollars lost in defense of legitimate civil rights violations. See Adam Smith, An Inquiry into the Nature and Causes of the Wealth of Nations 456 (Roy Hutcheson Campbell et al. eds., Liberty Fund Glasgow 1981) (1776). In short, Congress, by enacting Section 1988, harnessed free market principles to incentivize lawful government behavior, and justifiably so.
According to the Liberty Brief, it’s not enough to simply pay attorneys their regular hours-times-rate:

[A]ttorney fees are not merely about compensating attorneys who undertake the representation of those oppressed and damaged by government, often at significant risk to their regular practice. Just as important, and possibly more so, they provide the incentive for governments, especially with the outcry of local taxpayers upon the media announcement of an attorney fee judgment, to reform their unlawful conduct and refrain from civil rights violations in the future.

Now, the statute only states attorney fees must be “reasonable”; there’s no language about compensating attorneys for “risk to their regular practice” or giving taxpayers “incentive” to rise up against local governments. But the Liberty Brief assures us that “the American taxpayers, through their elected representatives, clearly endorsed attorney fee enhancements when enacting Section 1988.” And to prove it, the brief cites the statement of a single senator – Ted Kennedy:

Even with the enactment of this bill, the lawyer who undertakes to represent a client will face more uncertainty of payment than one involved in a usual contingency fee case. His fee is contingent not only upon his success, but also upon the discretion of the judge before whom he appears.

Even if he wins his case, and the judge decides he has won a fee as well, his rate of compensation is fixed not by a grateful client, but by a disinterested judge.
Nothing in Kennedy’s statement supports fee “enhancements”; furthermore, it contradicts the Liberty Brief’s claim that the “invisible hand” of market forces will set attorney fees. Judges set the fees by fiat, not attorneys and clients entering into voluntary agreements.

Beyond Kennedy’s statement, the Liberty Brief relies heavily on the “legislative history” of Section 1988 contained in the House and Senate committee reports on the original legislation, enacted in 1976. The Senate report is silent on how to define “reasonable.” The House report cited a 1974 case from the Fifth Circuit where the court listed twelve guidelines in deciding attorney fees, including the “ability” of the attorneys and the “undesirability” of the case.

Of course, the Fifth Circuit didn’t fabricate its “guidelines” arbitrarily or capriciously: “These guidelines are consistent with those recommended by the American Bar Association’s Code of Professional Responsibility…” So the court simply adopted the recommendation of the professional bar on how its own members should be paid. Then the House and Senate judiciary committees – bodies generally composed entirely of attorneys – incorporated this self-serving analysis into their own legislation, which was heavily influenced by other professional attorney groups. This is what the Liberty Brief considers “the representatives of the American taxpayers.”

Now let’s pause here and consider a purely constitutional issue. The phrase “private attorney general” frequently describes the role of plaintiff’s counsel in these type of cases. Indeed, the Alliance Defense Fund, one of the seven groups that signed the Liberty Brief, said that its attorneys “function as private attorneys general, representing clients to vindicate their constitutional rights.”

But “private attorney general” is a contradiction. Attorneys are be officers of the court – the judicial branch – but the attorney general is an officer of the executive branch. The Constitution states the president must appoint and commission all “officers of the United States.” Congress cannot simply deputize every attorney in the country as a “private attorney general.”

Among other problems, the compensation for a “private attorney general” isn’t fixed by Congress or the president but by the whim of a federal judge. All Justice Department employees are paid as part of the federal bureaucracy. It’s an awful, parasitic system, but at least the compensation of the attorney general and his deputies are subject to presidential and congressional oversight. Not so with these so-called free-market prosecutors.

Now, the counterargument is that even the government uses private lawyers when defending against civil rights lawsuits, and what’s good for the goose is good for the gander. The Liberty Brief makes this exact point:

There are…thousands of professional civil rights defense attorneys whose firms make millions of dollars defending government entities, and many, if not most, government entities are represented by them. For these attorneys, their entire firm or practice group within the firm is dedicated to defending civil rights cases for government. The more protracted the litigation and the greater the girth of the docket, the greater their economic success. … [T]his has led to a substantial increase in the size of the dockets and records in civil rights cases.

The Liberty Brief argues the remedy is to allow plaintiff’s attorneys the possibility of enhanced fees to discourage defense attorneys from protracting litigation. But there’s an even better remedy: Limit the fees that all attorneys can collect in these cases. This sounds counterintuitive to free-market supporters, but let’s remember, attorneys are agents of the state. Restricting even a “private” attorney’s compensation is no different then fixing the salary of any other government bureaucrat.

Expanding the arms race, as the Liberty Brief recommends, will only lead to more litigation. That’s exactly what the Liberty Brief’s signatories want. They claim their objective is to reduce the cost of litigation by encouraging governments to settle cases quicker; the prospect of enhanced plaintiff’s fees will somehow spur angry taxpayers to revolt and demand accountability:

Most Georgia taxpayers are probably unaware of the facts of this case or the conditions these children were forced to endure. They will, however, be made very aware of the size of the attorney fee award. They will demand answers. They will demand fiscal accountability and that the government behave responsibly. Georgia, in the future, will be somewhat leery of paying $2.4M to outside counsel plus an enhanced attorney fee judgment to defend known civil rights violations merely to avoid paying a fraction of that amount to reform and settle with the victims early on.

Georgia, and other government entities, will begin to reconsider the…strategy of government delay and obfuscation and will engage instead in some cost-benefit analysis reminiscent of the private sector. In short, in any future civil rights violations for which Georgia realizes it is responsible and must remedy, it will work to resolve the dispute as early as possible in the litigation to avoid the needless ballooning and possible enhancement of the attorney fee award. This possibility of enhancement will merely serve to realign the incentives for government to approach civil rights violations with the same desire for early resolution as the victims themselves.

This is the second prong of the “market incentives” argument at the Liberty Brief’s core. First we need the prospect of enhanced fees to attract competent plaintiff’s counsel; then we need them to discourage the government from spending money to defend its policies.

This argument is flawed on every level:

1.Since government officials are generally immune from any personal liability for their conduct, there’s no incentive for them not to engage in misconduct. Any costs are born by a third party, the nameless, faceless taxpayers.

2.Governments, at every level, waste taxpayer money every day on projects of dubious value. There’s no reason to believe taxpayers, en masse, will focus on an excessive attorney fee award in a single case and move to hold any particular official accountable. I think the Liberty Brief’s authors know this.

3.The Liberty Brief assumes that taxpayers won’t side with the government on the merits a particular case. Nobody supports abusing foster children, of course, but when a “civil rights” case involves constitutional interpretation, there are always multiple viewpoints. The Liberty Brief’s authors arrogantly assume everyone shares their specific interpretation of a two-century-old document.

4.Settlements – the Liberty Brief’s preferred outcome in all cases – often include high attorney fee awards. And settlements are often done behind closed doors with little, if any, public disclosure or oversight.

5.As the Perdue case itself demonstrates, the possibility of fee “enhancements” means a high probability of ancillary litigation to settle the question of how much to pay attorneys – even when the underlying litigation is settled.

6.The prospect of “enhanced” fees – higher prices – will attract more lawyers to file lawsuits irrespective of their merits, imposing additional costs on taxpayers.

7.Not to reiterate what should be an obvious point, but governments rarely perform true “cost-benefit” analysis, because their resources are acquired through violence or the threat of violence. There are no customers to serve, and government cannot fail like a private business.

What the Liberty Brief’s signatories really seek are not incentives for governments to behave, but punitive damage awards – for lawyers, not clients – under the guise of “enhanced” attorney fees.

Now, that may appeal to some libertarians. After all, any defeat for the state is good for the individual. Well, maybe not. The Liberty Brief itself cites a not-so-hypothetical scenario that doesn’t exactly help their cause:

Citizens raising families, working jobs and paying bills do not watch government as closely as shareholders or stakeholders in private enterprise. A local school district can spend a million dollars fighting a child who wants to hand a candy cane with a religious poem attached to his friends during Christmas, and then hold media events expressing a need for money for education. Few private enterprises would ever spend any amount of money fighting candy canes, and those that did would probably cease to exist. Not so for government.

What this example omits is the likely reason a school district would ban a child from distributing a religious-themed candy cane in the first place: Other lawyers, who also claim to be defenders of the Constitution and civil rights, threatened (or brought) legal action to prevent the school from violating the First Amendment’s Establishment Clause. These attorneys promote the exact same legal philosophy as the Liberty Brief’s signatories – the federal Constitution is a license for courts and “civil rights” attorneys to micromanage every state and local government activity. It’s an expensive philosophy.

(As an aside, it’s laughable that the Liberty Brief brings the example of a child being told not to hand out candy canes into a case rooted in the abuse of three thousand children by the State of Georgia; it demonstrates a lack of intellectual depth perception endemic among lawyers, even libertarian lawyers.)

It’s also curious for the Liberty Brief to assert that “few private enterprises would ever spend any amount of money fighting candy canes, and those that did would probably cease to exist.” Most of the private groups that signed the Liberty Brief are themselves in the business of litigation. And they represent just a fraction of the private, nonprofit groups that bring such litigation on a daily basis, some more meritorious than others. Generally, these groups are financed through private donations, which is much closer to a free-market system then the government welfare sought in the Perdue case and its ideological cousins.

And let’s remember, not all of this litigation is against governments. If you look at the fee award statute at issue in Perdue, it authorizes fees in a wide range of cases including “unlawful intentional discrimination” by private parties – i.e., housing and employment – as well as the failure to provide “reasonable accommodations” under the Americans With Disabilities Act. If you allow “enhanced” attorney fees in cases against government entities, you also have to allow them in cases against private parties. Thus, it should be clear that the net effect of the Liberty Brief’s position will be an expansion of state power, not greater respect for the civil rights of individuals.

* The signatory groups are the Liberty Legal Institute, American Center for Law and Justice, Cato Institute, Institute for Justice, Liberty Counsel, Alliance Defend Fund, and the James Madison Center for Free Speech.

Story Contributed by Skip Oliva.

Leave it to the Austrian economic scholars deliver rational on why Scholasticism is in decline. Murray N. Rothbard, has recently written a great post outlining rational for and against the decline of Scholasticism.

“Sixteenth-century Spain has well been called the Indian summer of Scholasticism. After that, its decline, not only in Spain but throughout Europe, was rapid. Part of the reason was a stubborn clinging to the form of the prohibition of usury. A ban that had made little sense, either by natural or divine law, and which entered Christian thought quite late in the day, was clung to and strengthened in an almost perpetual, irrational frenzy.

The systematic weakening of the usury ban by some of the finest minds in Christendom had the beneficial effect of sanctioning the charging of interest, but at the long-run cost of discrediting the Scholastic method itself.

By clinging to the outer husk of banning usury as a mortal sin, while at the same time finding increasingly sophisticated ways of allowing merchants and finally professional moneylenders to get around the ban, the Scholastics opened themselves to unfair charges of evasion and hypocrisy.

The deadly assault on Scholasticism came from two contrasting but allied camps. One was the rising groups of Protestants without, and crypto-Calvinists within, the Church who denounced it for its alleged decadence and moral laxity.

Protestantism, after all, was in large part a drive to cast off the sophisticated trappings and the refined doctrine of the Church, and to go back to the alleged simplicity and moral purity of early Christianity. Made the very emblem of this hostility was the Jesuit Order, the devoted spearhead of the Counter-Reformation, that order which had taken up from the faltering Dominicans the torch of Thomism and Scholasticism.

The second camp of enemies of Scholasticism was the rising group of secularists and rationalists, men who might be Catholics or Protestants in their private lives but who mainly wanted to get rid of such alleged excrescences on modern life as the political application of religious principles or the prohibition of usury. Consequently, the crypto-Calvinists attacked the Jesuits for weakening the prohibition of usury, while the secularists attacked them for keeping it.

Neither wing of the opposition was impressed with the brilliance of the scholastic arguments to justify usury, nor with the entire Scholastic and Jesuit enterprise of “casuistry”: that is, of applying moral principles, both natural and divine, to concrete problems of daily life.

One might think that the task of casuistry should be deemed an important and even noble one; if general moral principles exist, why shouldn’t they be applied to daily life? But both sets of opponents rapidly succeeded in making the very word “casuistry” a smear term: for the one, a method of weaseling out of strict moral precepts; for the other, a method of imposing outdated and reactionary dogmas upon the world.

Why, despite the great work of Summenhart and others, did the Catholic Church persist in keeping the formal ban on usury for two centuries thereafter? Probably for the same reason that the Church has always tended to maintain stoutly that it never changes its doctrines while it keeps doing so.

Changing content within an unchanging formal shell has long been characteristic, not only of the Catholic Church, but of any long-lived bureaucratic institution, whether it be the Church or the constitutional interpretations of the Supreme Court of the United States.

“Changing content within an unchanging formal shell has long been characteristic, not only of the Catholic Church, but of any long-lived bureaucratic institution, whether it be the Church or the constitutional interpretations of the Supreme Court of the United States.”
The two-pronged alliance against Scholasticism outside and within the Catholic Church cut far deeper than the quarrel over usury.

At the root of Catholicism as a religion is that God can be approached or apprehended through all the faculties of man, not simply through faith but through reason and the senses. Protestantism, and especially Calvinism, sternly put God outside man’s faculties, considering, for example, sensate embodiments of man’s love for God in painting or sculpture as blasphemous idolatry to be destroyed in order to clear the path for the only proper communication with God: pure faith in revelation.

The Thomist stress on reason as a means of apprehending God’s natural law and even aspects of divine law was reviled by a sole Protestant emphasis on faith in God’s arbitrary will. While some Protestants adopted natural-law theories, the basic Protestant thrust was opposition to any natural-law attempts to derive ethics or political philosophy from the use of man’s reason.

For Protestants, man was too inherently sinful and corrupt for his reason or his senses to be anything but an embodiment of corruption; only pure faith in God’s arbitrary and revealed commands was permissible as a groundwork for human ethics.

But this meant that for Protestants there was also very little natural-law groundwork from which to criticize actions of the state. Calvinism and even Lutheranism provided little or no defenses against the absolutist state that burgeoned throughout Europe during the 16th century and triumphed in the 17th century.

If Protestantism opened the way for the absolute state, the secularists of the 16th and 17th centuries embraced it. Shorn of natural-law critiques of the state, new secularists such as the Frenchman Jean Bodin embraced the state’s positive law as the only possible criterion for politics. Just as the anti-Scholastic Protestants extolled God’s arbitrary will as the foundation for ethics, so the new secularists raised the state’s arbitrary will to the status of unchallengeable and absolute “sovereign.”

On the deeper level of the question of how we know what we know, or “epistemology,” Thomism and Scholasticism suffered from the contrasting but allied assaults by the champions of “reason” and “empiricism.” In Thomist thought, reason and empiricism are not separated but allied and interwoven. Truth is built up by reason on a solid groundwork in empirically known reality. The rational and empirical were integrated into one coherent whole.

But in the first part of the 17th century, two contrasting philosophers managed between them the fatal sundering of the rational and the empirical that continues to plague the scientific method until the present day. These were the Englishman Francis Bacon (1561–1626) and the Frenchman Rene Descartes (1596–1650).

Descartes was the champion of a desiccated mathematical and absolutely certain “reason” divorced from empirical reality, while Bacon was the advocate of sifting endlessly and almost mindlessly through the empirical data.

Both the distinguished English lawyer who rose to become Lord Chancellor (Lord Verulam), Viscount of the Realm, and corrupt judge, and the shy and wandering French aristocrat, agreed on one crucial and destructive point: the severing of reason and thought from empirical data.

Hence, from Bacon there stemmed the English “empiricist” tradition, steeped mindlessly in incoherent data, and from Descartes the purely deductive and sometimes mathematical tradition of continental “rationalism.” All this was of course an assault on natural law, which had long integrated the rational and the empirical.

“In Thomist thought, reason and empiricism are not separated but allied and interwoven. Truth is built up by reason on a solid groundwork in empirically known reality. The rational and empirical were integrated into one coherent whole.”

As a corollary to, and intermingled with, this basic and systematic change in European thought in the “early modern” period (the 16th and especially 17th centuries) was a radical shift in the locus of intellectual activity away from the universities. The theologians and philosophers who wrote and thought on economics, law, and other disciplines of human action during the medieval and Renaissance periods were university professors. Paris, Bologna, Oxford, Salamanca, Rome, and many other universities were the milieu and arena for intellectual output and combat during these centuries. And even the Protestant universities in the early modern period continued to be centers of natural-law teaching.

But the major theorists and writers of the 17th and then the 18th centuries were almost none of them professors. They were pamphleteers, businessmen, wandering aristocrats such as Descartes, minor public officials such as John Locke, churchmen such as Bishop George Berkeley.

This shift of focus was greatly facilitated by the invention of printing, which made the publication of books and writings far less costly and created a much wider market for intellectual output. Printing was invented in the mid-15th century, and by the early 16th century it became possible, for the first time, to make a living as an independent writer, selling one’s books to a commercial market.

This shift from university professors to private lay citizens meant, at least for that era, a move away from traditional modes of learning and thought towards a more diverse spectrum of idiosyncratic individual views. In a sense, this acceleration of diversity went hand in hand with one of the most important impacts of the Protestant Reformation on social and religious thought.

For, in the long run, far more important than such theological disputes as over free will versus predestination and over the significance of communion was the shattering of the unity of Christendom.

Luther and even Calvin had no intention of fragmenting Christendom; on the contrary, each set out to reform a unified Christian Church. But the consequence of their revolution was to open Pandora’s box. Whereas frictions and heresies had before been either stamped out or accommodated within the Church, now Christianity split apart in literally hundreds of different sects, some quite bizarre, each propounding different theologies, ethics, and prescriptions for social life.

While the variegated strains of social thought stemming from this break within Christianity included rationalists and individualist groups such as the Levellers as well as absolutists, the value of the resulting diversity must be offset by the unfortunate fading away of Scholasticism and Thomism from Western thought.”

Well, it’s that time of the year again. Flu season!! Apparently the US Government has a concern that people will think the seasonal flu is the H1N1 or H5N1 flu. They have taken great lengths on their national world health organization website to differentiate the different strains of viruses that are currently circulating. Educating the general public about the different viruses is one of the primary objectives of the WHO.

There seems to be some fear from officials that since the H1N1 has been active this year flu season could be bad. The concern goes some like if people are already sick with a regular flu the H1N1 might really do some damage to an already weak immune system.

According to Government websites, “Flu refers to illnesses caused by a number of different influenza viruses. Flu can cause a range of symptoms and effects, from mild to lethal.

Two strains of flu, seasonal flu and the H1N1 (Swine) flu, are currently circulating in the United States. A third, highly lethal H5N1 (Bird) flu is being closely tracked overseas.

Most healthy people recover from the flu without problems, but certain people are at high risk for serious complications.

Extensive efforts are underway to track and monitor the spread of all flu viruses. In the U.S., epidemiologists at the Centers for Disease Control (CDC) are working with states to collect, compile and analyze reports of flu outbreaks. More on the current situation.

Flu symptoms may include fever, coughing, sore throat, runny or stuffy nose, headaches, body aches, chills and fatigue. In H1N1 flu infection, vomiting and diarrhea may also occur.

Annual outbreaks of the seasonal flu usually occur during the late fall through early spring. Most people have natural immunity, and a seasonal flu vaccine is available. In a typical year, approximately 5 to 20 percent of the population gets the seasonal flu and approximately 36,000 flu-related deaths are reported.

This year, the H1N1 flu virus may cause a more dangerous flu season with a lot more people getting sick, being hospitalized and dying than during a regular flu season. H1N1 is a new virus first seen in the United States. It is contagious and spreads from person to person. Like seasonal flu, illness in people with H1N1 can vary from mild to severe.

Interactive Timeline on H1N1: The Year in Review
Follow the month-by-month development of the 2009 H1N1 flu pandemic.

A flu pandemic occurs when a new influenza A virus emerges for which there is little or no immunity in the human population; the virus causes serious illness and spreads easily from person-to-person worldwide. On June 11, 2009, the World Health Organization (WHO) declared that a global pandemic of H1N1 flu is underway.

H5N1 (Bird) flu is an influenza A virus subtype that is highly contagious among birds. Rare human infections with the H5N1 (Bird) flu virus have occurred. The majority of confirmed cases have occurred in Asia, Africa, the Pacific, Europe and the Near East. Currently, the United States has no confirmed human H5N1 (Bird) flu infections, but H5N1 (Bird) flu remains a serious concern with the potential to cause a deadly pandemic.”