Tag Archives: EPA

Genuis Of The Common Law

For the last couple of generations the US has been adding new laws at an exponential rate covering all manner of issues and concerns to some groups.  They range from EPA laws and those vast regulations to the new CFPB with its laws and regulations regarding real estate laws and the mortgages that protect lenders in real estate lending.   Those are only a couple of the examples.    Virtually every State now has a version of the Uniform Commercial Code that regulates all manner of commercial and banking transactions.  Those laws used to be covered under what were known as the law of Bills and Notes.  Indeed only 50 years ago law students took a course called just that.   The real estate laws have been historically a matter exclusively within the purview of the respective States under the recognized “police powers” of the States to regulate their own internal affairs for both criminal law and private property rights and laws of contract interpretation.   Except for Louisiana which had the Napole0nic Code all the States utilized the Common Law from England.   That Common Law and its few companion laws has served us very well for about 500 years and still can if allowed to work as intended.

The Common Law was designed and evolved to be a constantly changing system of judicial interpretation of the laws to meet the every altering facts of modern life.   There were few statutes but there was the precedent of prior case law to guide.  The law was changed slowly as it always should be to make sure the new interpretations fit with the needs of society and the needs of commerce among merchants and individuals.

Unfortunately today if you asked the typical twenty-something they would think that the EPA laws and regulations are the only thing that protects individuals from harm by polluting neighbors be they companies or individuals.  Everyone wants clean air and water to be sure.   The Common Law has provided a remedy for such an issue for centuries.  Two hundred years ago if you had an upstream neighbor, say a plant in the Midlands in England or Connecticut, that was manufacturing dinner ware and their production methods dumped polluted materials into that stream that crossed your property and harmed your cattle and crops you were not without remedy.   You could sue them.  People then as now did not want to be poisoned with bad air or fouled water.  Mostly it would have been a suit for nuisance and it could include damages if they injured you or your property.  The courts even then under the Common Law could issue and injunction against the offender to cease and desist.  The local Sheriff could and would enforce such injunction.  There is really no pollution issue today that couldn’t be remedied by private suit under the Common Law.  Individuals, cities, States, anyone suffering injury, could bring such a suit.  The same remedy would be available for air pollution.   Other than research and gathering of data why do we really need the EPA?   The Common Law has had a well established set of Riparian rights to control and litigate the rights to water and its purity for centuries long before any bureaucrat set to work.

Likewise consumers have for centuries been able to protect themselves from fraudulent activity by business.   There are several different types of fraud that have been recognized by the  Common Law.  The recent brouhaha over alleged mortgage abuse and violations of the Rules of Evidence is another prime example of the relief the Common Law affords the average Joe.  If indeed a borrower was deceived by a crooked lender then the mortgage would be void under the various fraud provisions of the Common Law and the lender would not have been able to prove the validity of the mortgage under the companion Rules of Evidence and thus would have been denied foreclosure.

We have been on a path of abandoning centuries of collected wisdom for passions and expediences of the moment for a perceived wrong without remedy when a remedy is in fact available.    Advice for the future generations, always look with a skeptical eye when some group says we need a sweeping overhaul of some major portion of our laws.  First of all it is usually some interest group behind it and their lawyers looking for work and a special bailiwick for their future careers because they can claim that only they understand the new law which they made zillions pr0moting and then drafting.   Inevitably such new sweeping laws create a new bureaucracy which then of course always sees future issues to resolve and regulate or else they are out of business.  As so much in life follow the money and see who benefits from these new laws in addition to the alleged benefit to the consumer or society in general.

Lord knows we have enough lawyers in the country to bring cases for alleged wrongs.  We are allowing a very tried and true system that still exist to whither away while we create vast new bureaus, agencies and boards with powers that the bureaucrats and the specialists in their domain to seek to constantly expand.    Yes our water and air are cleaner now than 50 years ago but that is NOT because of the EPA.  The same result could have and likely would have been attained by the use of the Common Law.   If you doubt these comments you are invited to research  the Common Law yourself.   That system worked exceedingly well.  Some cases may have turned our badly due to corruption or bad judges but the system was sound.  Today we still have to deal with corrupt bureaucrats or incompetent ones and a system that “we” have very little control over because the average Joe is not in the decision-making loop.  But under the Common Law the average Joe and all his thousands of cases were at the heart of the law-making process and over time it always got it right.

“Every wanton  and causeless restraint of the will of the subject, whether practised by a monarch, a nobility, or a popular assembly, is a degree of tyranny.”  Sir Wm. Blackstone, 18th century judge and commentator on the Common Law.  http://www.olcranky.wordpress.com

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Governmental-Educational Complex

We have had various warnings from leaders over the history of our nation.  It started with Washington in his famous Farewell Address when he warned of many things but among them was the danger in “foreign entanglements” and to avoid them.  At that time and place it was pretty sound advice for the young nation.  We were still very small potatoes in the world and needed the peace and quiet to grow and prosper.  Washington rightly worried that treaties with too many other nations and with too many conditions would inevitably lead to conflicts if not outright war and that would be devastating to the budding Republic.    Indeed as we know from our history we did have several wars during our first 15 years or so after his departure.  There was the undeclared war with the French over trade, the also undeclared war with the Barbary pirates and Muslims on the north African coast and the declared war with Britain in 1812.  Along the way we also had some tussles with the Spanish here and there.   It would have been difficult to pick the right partner during those times and not having a formal alliance with one or the other probably was the smart play.

About 150 years later Eisenhower came along to warn us about the industrial-military complex and the perceived power and influence it was having on our national policy and the skewed effects on our economy.  Again, the advice was probably not too bad at the time.  Many thought the advice was odd coming as it did during the height of the Cold War.  It was believed that we needed a very strong industrial base to support our military operations to hold back the advance of the Communists.  They had been very aggressive in announcing their intentions to take over the world.  They even had organizations for that purpose controlled from Moscow.   But Ike was concerned that the industry supporting our military needs was too strong and could thwart national and international policy with its lobbying in Congress.  That the agenda was more about preserving market share than it was the national interest.   We did need a very strong military presence at that time.  You may recall that one of the key elements of the Kennedy victory in 1960 was the alleged “missile gap” between ourselves and the Communist.  Although there was in fact no missile gap and Kennedy knew it he continued to pound on the subject and it found a receptive chord with the public.  This was the era of Sputnik and the rocket and space race and SAC and the beginnings of the ICBM’s.   Generally, Ike’s advice was not followed and probably it was correct not to do so as the Communists were relentless during those years with their aggression around the world.   We may have overdone it some but better to have too many weapons that are never used than too few when desperately needed.

Today I wish some leader would bang the tocsin with a clarion call to cut back on the governmental-educational complex.  All our major universities and colleges that do any research are in a constant competition for Federal funding for their programs.  You cannot find a single large school that does not receive millions, if not hundreds of millions, per year for directed research.  This has been true for some time but has accelerated during the last 25 years to truly gigantic proportions.   You can bet that many of the scientists and academics at these schools spend as much time preparing their grant request as they do actual research.   Lots of the large schools have either full-time staff that do nothing but this or hire specialists to prepare these applications.   The amount of money going to the educational system is staggering.  Just recently there as been the Race To The Top funding grant with gazillions at stake and in this case it is the States themselves that are seeking the money.  

The department of commerce hands them out, the department of transportation, the department of Energy;  the EPA is a huge contributor, and even the Pentagon doles out grants.  The behemoth of course is the department of Education.   Naturally what gets lost in the shuffle is that education is not a federal concern at all.  We all want a good education for our children and a sound educational system but the Constitution does not provide that as a Federal area of authority.  The States are in control of education along with the private schools.  We also seem to forget that all this money doesn’t come from the Government, Inc., it comes from us.   We get taxed to the hilt and ship that money to DC and then some pointed-headed bureaucrat makes rules, regulations and mandates and then magnanimously return a portion of  it to our state with strings attached by people far away.  

Too many academics are in the “business” of applying for grants just as are too many of the community organizations that apply for and receive these funds.  If a school has a great idea for research they should ask their alumni or private industry to fund the program.  If it is meritworthy it will receive it.  It will be judged on its use and usefullness to society rather than some political agenda from Washington.   That competition between universities would be a good thing.  It would more likely be a competition on merit rather than political connections.  You really think the applications for Iowa State receives the same consideration as the one from Harvard?   Have you checked lately how many Harvard grads are in the current administration?

All of those grants should be cut off root and branch.  Let all that money stay with the citizens of the respective states and let them decide which schools and universities should receive which funding.   Make them compete for private money, not political sway.  The research would be better.  We don’t need an entire industry built on applying for grant money and the lobby that supports it.  It is not productive.  You want transparency then lets start with this whole area and take a look at the numbers and the results and specifically at the players who benefit.  You want more ACORNS to be getting your tax dollars or more research on the alleged decline of some obscure fish in the tago tago river in El Somewhereland?  If those things are useful they will find the money elsewhere.

Is there anything better on a crisp fall morning than a cup of coffee in your backyard and looking up to see a flock of geese heading south?  That dependability of cycles is reassuring in our sometimes hectic world.  http://www.olcranky.wordpress.com

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The Future–Capitalism or Central Planning

There is no question that capitalism as an economic system is under assault at the present time.  Because of the turmoil and downturn some are pushing hard for an agenda that would diminish the power and influence of private enterprise and entreprenuership and replace it with expanded government control over the decisions, marketing, policies and profits of private business.  We need look no further for the proof of this than the Big Three.  Chrysler is already in a Chapter 11 proceeding and Government, Inc. is its creditor, owner, regulator and “management”.  I know there is no formal government official yet on the board but there is no doubt who is in charge of Chrysler and its future.  The Unions will be the largest single owner as a result of its Plan of Reorganization and that matches the wishes of Government, Inc.  The government has now announced its new plans for mileage standards which will dictate the type and style of vehicle that Chrysler can build.  That decision is not market driven or consumer driven but is powered by an envoirnmental lobby within the new administration.    GM will now be known as Government Motors.  Who will want to buy a car from them or Chrysler?  The Chrysler scenario is only one example of this process that is expanding daily.  The banks are in the bag; the insurance companies are going to get TARP money and we know what that means; the private equity funds are soon to be tightly regulated; and Government, Inc. is using the printing press and debt to “solve” our debt problem.  Lastly, the very bedrock of any modern industrial and developed nation, energy, is going to be under the thumb of government through Cap and Trade and EPA regulations.  Without abundant energy we are doomed to very slow growth and restricted advances in all the sciences and our standard of living.  Soon we will be having the same standard of living as Haiti but we will sure have clear skies.  Those donkeys and mules don’t pollute as much as a SUV.  All of this is emanating out of Washington rather than the board rooms and small business shops across the land.  Everyone is having to move in lockstep to the grand vision of the pooh-bahs of brillance in Washington.

Is this the way to go and is this the way that the fastest growing and most progressive economies in the world are going?   Only this week India wrapped up its national elections.  The “right” won there, big time.  India has been on a tear lately and clearly enjoys the benefits of turning loose the entrepreneurial spirit of its people.  The new government there will make an even bigger effort to encourage development and innovation and business enterprise.  They aren’t going green, they are going free enterprise.  Many believe with good reason that the BRIC nations (Brazil, Russia, India and China) are going to be the leaders of the 21st century in economic growth and improved living standards for their people.  Are they turning to more central planning or less?  The Chinese were notorious of decades for tightly controlling all aspects of their people and their economy.  They and the Soviets were infamous for those 5 Year Plans they announced every five years.  They outlined the exact targets and quotas and goals for every segment of their industrial and service entities.  We all know where that got them.  They have turned to greater freedom for their business entities and lower tax burdens and the results are quite obvious.  The Chinese now buy as many new cars each year as the US.  We are going back to the future with Government, Inc. grabbing every rein on the team.  

The Californians yesterday voted down the budget proposals that called for higher taxes on just about everything.   Maybe there were more Tea Parties out there than the main stream media reported.  Only a couple of days ago we wrote about how California has been perceived as the leader of the US in social and economic and envoirnmental policies and agendas.  I don’t believe all the California liberals and even moderates went to sleep on this vote, they were out voted.  Perhaps that vote was the tipping point for Californians and they want government expansion checked and greater business freedom and lower, not higher taxes.  There may be other interpretations of the vote but the overall message was clear–the government taxes too much, spends too much and regulates too much.  I wonder if the big increase in the price of new cars under the Obama mileage proposals if put to a vote in California would pass.   Would the voters like to raise new money for state operations by allowing oil and gas exploration and collect the delay rentals and royalties from that development?   If indeed California is the engine on the train then  the politicians across the land better listen to what that vote told them.  It sure wasn’t only Republicans that voted no.  To reject the government growth it took a broad cross section of the population.

Everyone hollers that we are saddling our kids and grandkids with a huge debt because of the enormity of the spending, borrowing and printing of money that Government, Inc is doing now.  I don’t agree that it is being deferred that long.  I think WE will have to deal with that debt because it is huge and our credit is waning by the month and our dollar will weaken further.  But if we are putting off the debt problem for our kids then why not do the same thing with the alleged Global Warming issue.  Let them figure it out.  I have tremendous optimism about the ability of our people to solve any problem if they are free to pursue their own interest, dreams and passions without interference by the Government.  As is always the case it is government that is the problem not the free market.   Government doesn’t solve anything, it only complicates matters and snips away a little more freedom with every law it passes.  The science and technology will come to utilize non fossil fuel energy sources one day–within decades likely and the alleged problem with be fixed. 

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