Health Care Debate 11/05/2009 05:38:39 pm by Dan Krohn

	As seems to be unfortunately typical in the modern U.S.A., the country appears crippled on the issue of health care. That great change needs to occur is well established. In the U.S.A. twice as much is spent per capita on health care than is spent in any other country, while the quality of health care does not make it into the top ten. Most personal bankruptcies are health related. That's enough to justify substantial change. Yet, we are an extremely divided country with everyone out for himself, rather than the health of the country as a whole; and any proposal not seen as perfect by a majority faces tremendous opposition. U.S. get real. There is no perfection in health care delivery. We need to settle for something less, and we can do that and still experience great improvement. Yet, it seems most likely that nothing of real consequence will change - leaving millions of Americans with no insurance will little access to health care and leaving millions more to go broke paying high insurance premiums for too little coverage. Unfortunately this blogger's idea would not stand a chance, because it would get Washington altogether out of it, but leave government heavily involved. Specifically, this blog proposes that the states be empowered to do whatever they want regarding health care with no federal interference. Emphasis on "whatever". So if a state decided to outlaw health insurance altogether - okay. If a state decided to have a tax to fund socialized medicine in that state - okay. If a state decided to do nothing and let the market work it out - okay. Eventually we'd see what works and what doesn't. Yes, that's a pretty wild idea - trusting the state governments to do a better job than the feds, but would we really lose? Unfortunately, many of those who call themselves conservatives want the federal government calling the shots - contrary to true conservatives of old - because of their lobbying power in Washington. And many liberals don't think anything can be handled on a state basis. Oh well, food for thought.

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Who Counts as a Member of the Media? 07/25/2009 12:55:20 pm by Dan Krohn

	In a recent case the Second District Texas Court of Appeals in Ft. Worth considered questions as to the degree a writer whose stories and editorial pieces are published on the Internet was entitled to a specific right given to journalists under Texas law. (The specific Texas statute in question as applied in this case addresses a rather narrow specific procedural issue (the right to an interlocutory appeal from a trial court ruling denying a motion for summary judgment, and it is doubtful that the readers of this blog entry would be interested in that procedural aspect of the case. Suffice it to say that the ability to proceed with such an appeal could save a party a great deal of time and money.) However, two portions of the court's opinion should be of interest to many readers. The writer involved, a chap named Joe Kaufman, was sued for defamation for a story he had written which was published in an online Internet magazine discussing an event called Muslim Family Day to be held at Six Flags over Texas. Several Muslim organizations filed suit claiming defamation. The portions of the court opinion that interest this blogger do not deal with the defamation issues, and this blog entry does not address the defamation aspects of the case. To this blogger the interesting issues are those which address the issue of whether or not Kaufman was entitled to exercise this procedure which Texas law gives to members of "the electronic or print media". The plaintiffs claimed that Kaufman was not covered by this statute because the article/opinion piece at issue was published solely on the Internet, and that the Internet was not the kind of media which the legislature had in mind. They argued that "electronic or print media" was meant to include radio, television, and print publications but not the Internet. Fortunately, the court had little trouble in finding that the Internet was included within the "electronic or print media" umbrella. But then things get trickier, and in this blogger's opinion much more dangerous, as the court proceeded to analyze the story by Kaufman, the online magazine in which it was published, and Kaufman's "notoriety" apart from the opinion piece at issue. In support of its conclusion that Kaufman was entitled to an interlocutory appeal as a part of the media, the court noted that the online magazine in question has 500,000 readers. One wonders how many readers it takes for a particular website to qualify for this statutory protection. The court opinion tells us only that 500,000 is good. The court also noted that the piece at issue addressed a topic of general interest - terrorism. One wonders just what topics would qualify as being of general interest, and which would be of too narrow an interest to help the writer. This blogger lives in Houston, Texas. It would be hard to argue that the Minnesota Twins baseball team is a topic of general interest in Houston (though it is surely a matter of great interest to some Houstonians). How does one measure general interest, and how should a court decide whether or not a topic qualifies. Except to give Kaufman a boost in this case because he addressed an aspect of terrorism, the court's opinion contains few clues. The court moved on to an analysis which this blogger finds truly discomforting. The degree of Kaufman's notoriety without regard to the writing at issue was analyzed as a factor in determining whether or not he was entitled to this particular procedural benefit aimed at protecting members of the media. The court noted that Kaufman had a history which included numerous television appearances hundreds of published articles, and that Kaufman had other substantial journalism training and experience. Note that the court specifically stated:" We do not hold, therefore, that everyone who communicates on the Internet would qualify as a member of the electronic media under section 51.04(a)(6)." As written, the opinion leaves its reader wondering whether, for example, most, if any, blogs would qualify for that procedural benefit. Consider this purely hypothetical example. Dr. Snidley Birdbrain, who holds a PhD in ornithology, maintains a blog dedicated to swallows of the Gulf Coast area, which is extremely popular and well read by area birdwatchers. In one of his blog posts, he attacks the intelligence, credentials, and observational capabilities of one Seymour Birdies, who claims to have identified a previously unknown species of blue-throated swallow near Beaumont, Texas. Birdies then sues Birdbrain for defamation. Given the Kaufman case, it would seem that Birdbrain is out of luck (should he file an interlocutory appeal of a summary judgment denial) for a number of reasons. Birdbrain's blog has far fewer than 500,000 readers. Courts would probably hold that Birdbrain's posting on the blue-throated swallow was not a subject, like terrorism, of general public interest. Indeed, outside the world of dedicated birdwatchers and ornithologists it's hard to imagine many who would have any interest at all. Our poor Dr. Birdbrain, while highly educated, has no specific training in journalism. Other than his blog, his experience as a journalist is limited to two articles published in scientific journals of limited circulation. And while our Dr. Birdbrain has lectured to a few birdwatching clubs and been a guest lecturer to a few college classes, he has never appeared on television. Without regard to whether or not Birdbrain's blog post was defamatory, the question still arises as to whether or not he should be entitled to this particular statutory right of appeal which was designed to help members of the media. Many experts have opined that blogs have become a major news and opinion source (and note that Kaufman's piece was as much an opinion piece as news story). Indeed, there are communications experts who have opined that blogs are replacing much of the traditional news media. And how about e-newsletters and listservs. This blogger subscribes to several such email services which address narrow legal subjects that would certainly not be of general public interest and which are sent to many but surely not 500,000. It is time for the Texas courts and, if necessary, the Texas legislature to wake up to the new online world. This blogger is not arguing for legalizing defamation - on the Internet or otherwise. This blogger is advocating that the courts recognize that the news media is not what it used to be. People expect to get the information they want from the Internet, and the Internet to which they go to find such information extends far beyond Web based magazines with large readerships. The very nature of news media is rapidly changing. Though law will lag behind, it must strive to keep up as best it can.

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Worries for Pakistan 05/06/2009 12:36:41 pm by Dan Krohn

	Recently a Taliban leader or sympathizer in Pakistan stated, "It is a natural thing when democratic avenues are not working to take up arms.” What a succinct description of the problems there. In a civilized place, when one does not get one's way in a democratic process, one continues to campaign and vote. One does not take up arms. Indeed, the very idea that armed response is the result of losing a legislative battle or election (even if the electoral battle is lost over and over thoughout many years) undermines democracy. What kind of vote is it that results from fear of armed attack. The leader making that statement did so as a justification for the Taliban's increasing incursions into Pakistan. Apparently the Taliban have moved out from merely hiding in Pakistan mountains to launch efforts in Afghanistan to an effort to take over Pakistan itself. Readers are reminded that Pakistan has nuclear weapons and at least some ability to deliver them. Thus this is one country, which in the hands of fanatics, would be terribly dangerous. Dealing with Pakistan is unusually difficult due to its history and culture. Its history is one of seeing India as the enemy. Some Pakistani's might have difficulty concluding that the Taliban is now the greater threat, especially as some of their neighbors don't mind them a bit. Similarly, Pakistani's have a history of thinking of themselves as an Islamic nation most often at war with those who are not of the same faith. The understanding that Muslims are not uniform might have not yet pervaded the Pakistani consciousness. Some might hesitate to go to war against "fellow" Muslims. Unfortunately, the United States is often seen by the Muslim world as less than friendly, understandably given its history of involvement in the Middle East. This writer has no clear answers to this situation, and this writer would be very suspect of anyone who claims a quick answer. The United States is used to acting as the "sole superpower" and imposing its will on smaller countries. But the U.S. is stretched both economically and militarily. What's more important is that the U.S. ought to be careful not to create new enemies which will last for decades if not centuries - if that is possible. There is much more involved here than just Pakistan and the U.S. Much of this Taliban problem has been exported from Afghanistan, where the struggle for stability is still on and where other countries have troops supporting the U.S. effort. Lastly, let us not forget India. India has its history of seeing Pakistan as an enemy, and it was not that long ago that terrorist violence rocked Indian locations. India is also a nuclear power. And we cannot read the Indian mind as to how it would react to a radical Taliban government ruling its traditional enemy. For now, readers, it might be just wait and pray.

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Breaking Up Is Hard to Do, Part 1 05/05/2009 06:53:40 pm by Dan Krohn

	Since the beginning of this year, this writer has seen a definite increase in breakups among owners of closely held businesses. This appears to be a sign of the times for many businesses whether large or small. The owners of a closely held business might find themselves changing the ownership structure or dissolving the business for reasons which include: (1) a changing market; (2) different capabilities of the business owners to contribute time or additional needed capital; (3) disagreements as to the direction the business should take; and (4) conflicts of interest with other business ventures. Also, in this economy, it is not uncommon for early stage business partners to be supported by their spouses. If the spouse should be laid off or suffer some other form of reduction in income, the business partner might have little choice but to seek additional personal income elsewhere. This writer has seen business breakups handled in many ways from peaceful and hostile negotiations to litigation and even violence. The purpose of this article is to suggest friendly negotiation as the preferred way to dissolve a closely held business. In addition to avoiding the costs of litigation and/or unreasonably protracted or hostile negotiations, peaceful negotiation as a resolution mechanism has much to offer. It provides less distraction from other matters which need attention for those involved. Distraction is the most commonly ignored and largest actual cost of litigation and hostility. Peaceful negotiation has a better likelihood of preserving assets and potential income, and/or reducing losses and preserving credit standing. As the business model might be very worthwhile with a change in the economy and quite worth preserving, the business stands a better chance of surviving peaceful negotiation, even if it must go into hibernation or semi-hibernation mode. Also, peaceful negotiation is more likely to leave the business in place operating profitably by some, if not all, of its owners; and the possibility of the owner who must take a reduced role returning in the future when circumstances change can be preserved to the benefit of all. Lastly, let’s not forget the burning of bridges which is avoidable through friendly negotiations. One never knows if or when one might want to do business with a former business partner who now works in a different place (or a relative or a friend of that former partner). In this day of online social networking, the airing of dirty laundry is far too easy and very public. Reputations are not to be destroyed lightly, but often are destroyed even without intent. With the economy in chaos there are always opportunities to maximize gains and minimize losses. Making the effort to adapt intelligently and as peacefully as possible is the preferred route.

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Supporting Our Troops? 05/02/2009 07:23:35 pm by Dan Krohn

	Recently there was a minor furor when the Department of Homeland Security mentioned in a report that members of the military returning from wars in Iraq or Afghanistan might be subject to recruitment by terrorist organizations, and hence could be a risk to national security. Several politicians immediately pounced screaming "How can you insult our men and women in uniform like that!" This blogger believes that the critics were asking the wrong question and addressing the wrong issue. (Readers, please note that this blogger strenuously opposes terrorism by anyone for any reason.) If indeed Homeland Security has accurately identified a risk, then the questions that occurs to this writer are how we got there and how can we change it. On reflection, recent history of how the United States has treated its enlisted men and women should give considerable pause for thought. Though virtually all of our political leaders regularly proclaim their support for our troops, for many of them – their actions contradict their words. And the American people have failed to let their leaders know otherwise. Since the move to an all volunteer military, the United States has seen a major shift in its attitude towards the military. Perhaps most critically, unlike, most recently, the days of the Vietnam War when almost anyone could be drafted; wars today are fought by “them” not “us”. “Them” are the people who have volunteered to be in the trenches, on the ships or in the air. “Them” does not typically include the young members of the upper middle and upper classes, who upon graduation from high school move directly to college and then onto careers which generally do not include the military. The recruiters for the armed services know this, and consequently they target members of the lower middle and lower classes. You will see them more active at high schools where a higher proportion of the student body fits that description. There is generally a higher percentage of minority students at those schools - another factor supporting the “them” view of our enlisted men and women. For the students from such backgrounds the military offers a more attractive deal. But let’s look at how we have been treating them. The scandalous condition of Walter Reed hospital which made the news sometime ago was only a publicized aspect of one problem. The United States is simply not giving our military personnel the kind of quality medical care they have earned. Though medical care has improved with passing of time due to advances in technology and treatment, the military relative to the average American with health insurance does not get the same medical care – at least not at government expense. In the continuing effort to balance the budget and cut spending, care for the service men and women has too often been an easy place to wield the knife. Their lobbyists cannot compare to those of the major defense industry suppliers who continue to sell the military at bloated prices. Meanwhile, the U.S. has been privatizing increased amounts of what used to be military work. In Iraq there are private security companies and other military suppliers being paid huge amounts to do what were previously considered military tasks. And guess what? The guys and gals working for those private security companies are being paid two and three times what the men and women in the armed forces are being paid. Reader, how would you feel as soldier watching those folks make twice what you’re making? So some guy finally gets back home. His leg has been blown off. He has to wait way too long to get to a doctor. He can’t get a decent job, if he gets any at all. He can’t support his family. He has incredible psychological adjustments to make, after learning to kill and watching his buddies get killed. Maybe his wife leaves him, understandably not being able to take the stress any more. He sees other people around him living better – and their lives were not on the line. His was while he was protecting their asses. This poor chap is on the edge. So now the guy is being watched as a potential terrorist recruit. This country should be providing these returning soldiers timely counseling – all that they need. They should be getting prompt and superb medical care. They should be getting the best of outplacement help to find employment. They should be getting whatever training they need to be employable. And they should be getting some form of reasonable support during the transition. Some of this is provided, but it’s not being delivered in sufficient quantity and it’s being delivered too slowly. Supporting our troops? America – it’s time to put your money where your mouth is.

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