FC: Responses to Eric Lee Green and what "cyber-libertarians" don't get

[Declan McCullagh <declan () well com>]

Previous message:
http://www.politechbot.com/p-02883.html

*********

Date: Wed, 5 Dec 2001 20:15:03 -0600 (CST)
To: declan () well com
From: Jim () GoldBarter com (Jim Davidson)
Subject: Re: FC: Eric Lee Green on what "cyber-libertarians" don't get
Cc: owner-politech () politechbot com, politech () politechbot com, eric () badtux org

Dear Declan,

> [Anyone want to reply? --Declan]

Why, yes!  Thanks.

From: Eric Lee Green <eric () badtux org>
> http://www.eresolution.com/pr/30_11_01.htm

> Domain name dispute resolution outfit eResolution
> has pulled out, saying that the "shopping" provisions
> of the ICANN process inherently bias the process in
> favor of outfits that blindly rubber-stamp the
> trademark owner's request for the domain.

That's not what the press release says, Eric Lee.
Perhaps you should read the part where it says:

"The ICANN Uniform Dispute Resolution Policy (UDRP)
under which eResolution administered domain name
cases continues in force amidst growing controversy
concerning the "forum-shopping" phenomenon it appears
to have created. The ICANN system was originally meant
to allow for fair competition between accredited
dispute resolution providers. But the accreditation
as provider of the World Intellectual Property
Organization, a United Nations agency which contributed
the draft of the UDRP and whose purpose is to enhance
the protection of intellectual property, tilted the
balance from the outset. The system gave complainants,
who invoke intellectual property rights, the privilege
to choose the provider. And statistics were soon released,
and later confirmed, showing that complainants tended
to win significantly more often with some providers,
notably WIPO, than with others, notably eResolution,
creating a perception of bias from which the system
never recovered."

In other words, the failure of which eResolution
complains, arose as a result of the ICANN choice
to accredit a UN agency, WIPO.  That agency then
went out of its way to provide biased resolution
in favor of those complainants who had paid a
government agency (e.g., trademark agency of USA
Patent & Trademark office) for "intellectual
property rights."

By then releasing the results of how different
dispute resolution agencies were resolving these
disputes, ICANN created a bias in favor of the UN
agency WIPO.

> Acknowledgement of the failure of the ICANN
> system is perhaps the end of the cyber-libertarian's
> dream of an Internet governed by private courts,
> rather than by government courts.

Perhaps not.  It is not a failure of private courts,
but, rather, a failure of ICANN to embrace truly
private courts.  Having chosen to accredit the
UN agency, ICANN gave tacit approval to the world
governing body's preferences in resolving such
disputes.  WIPO isn't a private dispute resolution
service, it is a government agency.  The UN is a
sort of "over-government" created by various
governments, representing those nations with various
embassies and ambassadors to the UN, and operating
a bureaucracy favored by government.  The idea
that any UN agency is operating as a private court
is ludicrous.

That agency shows deliberate bias toward complainants
who have paid to government agencies a fee for the
trademark of a name.  Why? Because the UN is for
more government and less private property.

> This also exposes one of the inherent flaws of
> private courts: specifically, that they have a
> financial reason to rule one way or the other.

No, it does not.  It reveals that the UN agency
WIPO has an agenda favoring government licensing
of trademarks.  That bias arises from a financial
motivation: governments that are able to obtain
fees for trademarks are going to have money to
spend on UN activities.

> There are some groups, such as credit card and
> insurance companies,

Oh, yes, members of the banking cartel.  Not nice
people.

> that have specifically set up their own private
> courts (e.g. "National Arbitration Forum") for
> exactly this reason after the government courts
> ruled against them in fraud and financial misconduct
> cases.

The possibility that privately owned courts may be
biased in favor of the owners should not be dismissed.
However, that doesn't mean that government courts
have any widespread history of being unbiased. In
fact, government courts tend to be biased in favor
of vested economic interests, especially those of
government agencies.

> Government courts have their own flaws.

Yes, they have many.

>  But at least they don't have a financial incentive
> to rule one way or the other.

How amusingly naive.  Of course government courts have
a financial incentive to rule in ways that favor
government, that favor vested economic interests, and
that favor those who pay for judges to rule
preferentially.  For example, in Texas, judges at
many levels run for office.  Campaign contributors
get favorable treatment.  The financial incentive is
clear.

> Free enterprise in the courts business has been a
> staple of libertarian literature for years.

Yes.  And for good reason.  There is nothing that
government does that is not being done in the private
sector, somewhere.  In every case, where free market
conditions prevail, the private sector provides better
service at lower prices with higher quality and
faster results.  That goes for everything from the
provision of defense services to judicial services
to post services to monetary services.

> Unfortunately, the experience of the past 20 years
> of Supreme Court revisionism regarding contract law
> and arbitration, with ICANN, NAF, and others as
> examples, shows that it just doesn't work.

I dispute that the USA Supreme Court has anything
to do with private judicial systems and their provision
of services.  To the extent that government is
interfering in the market, free market conditions
don't prevail, and you aren't proving your case
against private judicial services.

Your example of the ICANN clearly demonstrates that
it is government interference, in this case by a
UN agency, in the free market, which is the problem,
not the private provision of judicial services.

> The profit motive seems to be inherently incompatible
> with justice.

You socialists always have clever statements to make
to justify stealing private property through taxes
to redistribute to your friends and judges.  The
profit motive exists no less in public office than
in private life.  The widespread corruption of the
judiciary makes it clear that justice is not assured
in government courts.

The singular advantage of private dispute resolution
services such as eResolution is that they are paid to
provide just decisions.  Government judges are paid
to support the agenda of government and the vested
interests of campaign contributors.

  "Under capitalism, man exploits man."
  "Yes, comrade.  And under communism it is just
   the other way 'round."
         --Gregory Benford

Regards,

Jim Davidson
 http://www.GoldBarter.com/ --> A free market


*********

Declan:

I took a shot at replying to Mr. Green's statement.  If you think that I
did a job worthy of publication, please don't attach my name, I'd prefer
to remain anonymous.  Thanks.

........
I think that Mr. Green makes a number of good points.  The current system
does have some major problems.  Perhaps a government court system might be
less prone to financial incentives; I consider this a debatable proposition,
but I will grant it for the sake of argument.

The problem here, as many libertarians/anarchists/cypherpunks/etc argue, is
that there is a centralization of services here.  Ask any cypherpunk for a
protocol which embodies the decentralized, distributed, and ultimately
non-regulable nature of the Internet, and he won't mention the domain name
system.  He (or she) will likely mention FreeNet.  Or NNTP, the protocol
on which USENET runs.  Mention DNS, and s/he will probably cringe.

DNS is very centralized.  Oh, sure, there are multiple registrars.  And,
yes, there are multiple resolution systems.  But, ultimately, a court can
order ONE entity (the registrar for a disputed domain name) to cooperate
and change their database.  The commercial dispute resolution firms are
eventually backed by the government courts, anyway (it gets a little hairy
when one of the parties isn't in the U.S., but Big Government and Big
Industry are both working hard to change that).

Some folks seem to have forgotten that.  Even some of the more hard-core
cyberspace romanticists were in favor of commercial dispute resolution,
and supported companies like eResolution.  By pushing for a perceived
decentralization of power at the legal level, they neglected the broken
technology layer.

The cyber-libertarian dream does not involve giving ANY entity the ability
to censor, as with DNS, and trusting third parties to keep it in check.  A
truly acceptable solution for a cypherpunk or cyber-libertarian would be a
distributed DNS system-- one designed to render a court order as effective
as a fart in high wind.
........

Declan McCullagh wrote:
> [Anyone want to reply? --Declan]

*********

Date: Wed, 5 Dec 2001 18:11:19 -0800 (PST)
From: Edifice Wrecks <ewrecks () yahoo com>
Subject: (fwd) FC: Eric Lee Green on what "cyber-libertarians" don't get
To: declan () well com, eric () badtux org

BULLSHIT.

The problem is that the law gives the plaintiff the
power to choose the arbitrator.  Naturally they take
advantage of this and shop for an arbitrator that is
more likely to decide in their favor.  In a _free_
market (as opposed to what governments like to pretend
is a free market) both sides would have to agree on an
arbitrator.

This situation is a forseeable result of government
interference.

*********

From: "Todd Phillips, MCP" <zzippy () concentric net>
To: <declan () well com>
Subject: RE: Eric Lee Green on what "cyber-libertarians" don't get
Date: Wed, 5 Dec 2001 15:32:01 -0800

"Government courts have their own flaws. But at least they don't have a
financial incentive to rule one way or the other. "

And I thought that *I* tended to be a bit naive.


*********

From: Charlie Oriez <coriez () oriez org>
Organization: Lumber Cartel [tinlc]
To: Declan McCullagh <declan () well com>, politech () politechbot com
Subject: Re: FC: Eric Lee Green on what "cyber-libertarians" don't get
Date: Wed, 5 Dec 2001 15:59:19 -0700

On Wednesday 05 December 2001 15:12, Declan McCullagh gave up the
right to remain silent by saying:
> [Anyone want to reply? --Declan]
>
>

Actually, Michael Geist at the University of Ottawa did an excellent
study documenting the bias of the process.  Currently, if I decide to
sue you, I get to choose the judge and forum, whom I then pay.  And
I'm only going to pay a judge who rules in favor of the plaintiff 90%
of the time.  Hardly a way to inspire us about the lack of bias in
the process.

<http://aix1.uottawa.ca/~geist/main1.html>

If I ever end up on the receiving end of a UDRP proceeding, I'll know
better than to count on justice there, and will run, not walk, to the
nearest federal court to get it adjudicated, since filing a suit
stops the UDRP proceeding.

If the rules had been drafted in such a way as to avoide bias, the
UDRP would be a good thing.

--
Charles Oriez     coriez () oriez org
39  34' 34.4"N / 105 00' 06.3"W

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Date: Wed, 05 Dec 2001 15:01:49 -0800
From: lizard <lizard () mrlizard com>
To: declan () well com
Subject: Re: FC: Eric Lee Green on what "cyber-libertarians" don't get

Declan McCullagh wrote:
>
> [Anyone want to reply? --Declan]
>
> ----- Forwarded message from owner-politech () politechbot com -----
>
> From: Eric Lee Green <eric () badtux org>
> Organization: BadTux: Linux Penguin Gone Bad (http://badtux.org)
> To: politech () politechbot com
> Subject: eResolution pulls out
> Date: Wed, 5 Dec 2001 14:52:07 -0700

> But at least they don't have a
> financial incentive to rule one way or the other.

But they do. They have a financial incentive to rule in favor of whoever
is funding the government which appointed them. And, furthermore, they
can be used by the government to favor one industry over another, or one
business within an industry over another. (Look at the Microsoft case.
Bill Gates didn't pay enough protection money, compared to Apple,
Netscape, etc. So the government decided to show him who really wielded
the power. He got wise, started to grease the right pockets, and they
backed down. Anyone who thinks it ever had anything to do with
consumers, innovation, or bundling Explorer is kidding themselves. It
was about power. It always is.)

It's obvious the domain system is flawed. But moving it from a private
oligarchy to a government monopoly is not the answer -- indeed, it will
simply make matters WORSE. ICANN, for example, has no financial
incentive to *not* register names such as "teenssuckcock.com" -- but a
government registration agency (which is what Mr. Green seems to be
agitating for) would have a powerful *political* reason to not register
such names. "The government is using your tax dollars to support porn!"
And, of course, we could look forward to democratic/republican domains
being given top priority during a democratic/republican administration,
while republican/democratic domains get 'accidently' lost in the week
prior to election day, and similair 'dirty tricks'.

The solution, as is usually the case, is better technology/social
engineering -- specifically, finding a way around ICANN and creating
alternate, truly private (as opposed to quasi-government) domain name
systems. Please note these problems didn't exist when internet domains
were run out of some guys office as a voluntary system. Only when the
internet got noticed by the government did these issues truly manifest.
Bring back the good ol' days!

(We should also not forget that it was the continual *government*
expansion of the scope of trademark law which also created this mess.
When the government expanded trademarks from merely protecting consumers
and businesses against fraud to such idiocies as 'dilution', even when
there is no possibility of consumer confusion, it opened the door for
these shenanigans.)

*********

From: Eric Lee Green <eric () badtux org>
Organization: BadTux: Linux Penguin Gone Bad (http://badtux.org)
To: Edifice Wrecks <ewrecks () yahoo com>, declan () well com
Subject: Re: (fwd) FC: Eric Lee Green on what "cyber-libertarians" don't get
Date: Wed, 5 Dec 2001 21:03:24 -0700


On Wednesday 05 December 2001 07:11 pm, Edifice Wrecks wrote:
> The problem is that the law gives the plaintiff the
> power to choose the arbitrator.  Naturally they take
> advantage of this and shop for an arbitrator that is
> more likely to decide in their favor.  In a _free_
> market (as opposed to what governments like to pretend
> is a free market) both sides would have to agree on an
> arbitrator.

Ah, that is why I included the example of First USA and the National
Arbitration Forum.

The vast majority of the credit card market is provided by a half dozen or so
large vendors. Even most cards issued by, e.g., your local bank, are actually
just co-branded product from one of these large vendors. The majority of
these vendors now requires that all disputes be resolved via NAF. You
"agreed" to this either when you accepted the card (it was in the fine print
of that agreement you tossed into the shoebox) or, later, when you opened a
bill that had an arbitration clause printed on an insert buried amongst the
advertising inserts (yes, the U.S. Supreme Court has ruled that this
constitutes a valid contract, even if you never saw it because it was mixed
in with the advertisements). 99.6% of NAF disputes are resolved in favor of
the credit card vendor, a percentage far in excess of what happens in
government courts.

In libertarian theory, what happens is biased private courts get a bad
reputation and people refuse to use them. So why is the NAF still in
business? In real life, what happens is that UN-biased private courts get a
bad opinion amongst serial disputants (those who have many cases being
brought against them, such as First USA, which has many "sucks" sites on the
Internet), and said serial disputants then refuse to use nonbiased private
courts. So what you get is a Darwinian sifting effect -- the scum (courts
that will rubber stamp whatever makes them more profit) rises to the top as
serial disputants flock to use them, and the bottom drops out of the unbiased
courts. Ask yourself why First USA uses NAF vs, say, AAS (an older, more
reputable arbitration society). Could it be that they get more results in
their favor if they use NAF? Any libertarian who's read Adam Smith knows the
answer to that question: you go with what makes you more money.

When you accepted your credit card (well, if you had one), you agreed to use
this particular private court. But libertarian theory assumes that you know
what you're getting into. You've never used this particular private court
before. You have no information about whether this private court is biased or
unbiased, and as a private party, this private court is not required to
release any information that could allow you to make such a judgement.
They're based in Wisconsin, and you're not, so you have no personal knowledge
of the court either. First USA, on the other hand, has used this private
court (to the tune of over 50,000 times!), and apparently is a satisfied
customer of this private court. In addition, this private court has sent
First USA top managers many brochures and pamphlets entitled things like "Let
us take care of your lawsuit woes!" and "Avoid those big judgements! Use us
as your mandatory arbitration provider!".

Thus you have several trends that come together:

 1. The biased private courts get a good opinion amongst serial disputants
(such as First USA), and
 2. The unbiased private courts get a poor opinion amongst serial disputants,
who then refuse to use them, thus causing unbiased private courts to close or
to change their policies to favor serial disputants,
 3. The consumer lacks information to know whether a particular court is
biased or not, and thus has no reason to change the agreement to use a
different private court, and
 4. The vast majority of the private providers require you to use the biased
private courts or they refuse to do business with you, thus making the notion
of "choice" utter illusion in the first place.

#4 is especially bad with credit card companies because they don't send you
the agreement until after they've already pulled your credit records and
issued you a card. You can send the card back (thus denoting non-agreement
with the arbitration clause), but the chances of finding a vendor who doesn't
have an arbitration clause before vendors stop dealing with you because of
"too many inquiries on your credit record" are slim.

Of course, you do have a good point that all of this problem with the bias in
the current private courts is a direct result of government intervention in
the economy. The biggest government intervention is, of course, the
government grant of limited liability for the owners of corporations. This
is, perhaps, a necessary intervention -- it's unclear as to how we would
raise the money for multi-billion dollar computer chip foundaries without
this government intervention. Still, it IS a government intervention -- prior
to the invention of the limited liability corporation in the late 1700's,
owners of businesses were fully responsible for any and all actions taken by
their employees. Today they're not, and this has a number of unintended
consequences (as all government actions do). It's not likely that today's
credit card giants could continue in business without this government
intervention, for example -- their very existence depends upon their ability
to use the grant of limited liability to attract investment dollars. (You
don't think they built their business the old-fashioned way, by growing it
from revenue, do you?!).

Perhaps if we eliminated all government interventions private courts would
work. It would certainly eliminate problem #4, because it would eliminate
virtually every large business in existence (thus destroying our economy, but
hey, we're dreaming libertarian at the moment).

Oh, I forgot the biggest government intervention of all:

   Private property.

Go to Somalia if you want to know what happens without government. (Hint:
Property belongs to whatever clan happens to have the most guns and largest
militia at a given point in time).

Or think Bosnia. When government power collapsed in the midst of their civil
war, property was redistributed to whoever had the most guns in a given area.

But I think that all of us agree that private property is what results in the
greatest good (Adam Smith's "invisible hand" and all that), so I certainly
would not recommend eliminating private property -- no more than I would
recommend eliminating the limited liability corporation. I merely wish to
remind you that the reality is that private property as a concept outside of
"whoever has the biggest gun owns it" is a government intervention (there's a
reason why titles are registered at the county courthouse!), and that limited
liability corporations are a government intervention. As are, of course,
government courts, which were created in order to end rule of gun and begin
rule of law. And frankly, while I trust government very little (see my
.signature file), I trust government courts in the United States to be more
impartial than the National Arbitration Forum. After all, if First USA
chooses the NAF rather than the government courts, it's because it's in their
financial best interest -- not in mine. The 99.6% rate of ruling in First
USA's favor makes it clear why First USA chooses NAF rather than government
courts.

[Disclaimer: I have never had a First USA card, have never dealt with these
people, so don't call me a disgruntled First USA customer -- after a brief
Google search on their name, I wouldn't touch them with a ten foot pole.]

So even if ICANN butted out and the two disputing parties could choose any
private court they mutually agreed upon, it's likely that the scum would end
up rising to the top. After all, it is not government action that resulted in
NAF giving 99.6% of decisions in favor of the credit card company -- it's
simple free market economics at work. The wonder is that WIPO's domain name
resolution arbitration rules in favor of trademark owners only 90% of the
time, rather than 99.6% of the time.

Eric Lee Green          GnuPG public key at http://badtux.org/eric/eric.gpg
           mailto:eric () badtux org Web: http://www.badtux.org
To His Royal Majesty George II: You do not save freedom by destroying freedom


*********

Date: Wed, 05 Dec 2001 17:56:40 -0800
From: Jeff Williams <jwkckid1 () ix netcom com>
Organization: INEGroup Spokesman
To: declan () well com
CC: politech () politechbot com
Subject: Re: FC: Eric Lee Green on what "cyber-libertarians" don't get

Declan and all,

  Yeah I will.  This has been and is being discussed on one of ICANN's
E-Mail list forums the DNSO GA list.  See: www.dnso.org for more
info.  There is and archive.


*********


Date: Wed, 05 Dec 2001 17:09:45 -0700
To: Eric Lee Green <eric () badtux org>
From: "Mrs.K." <mrskenl () webleyweb com>
Subject: Re: Eric Lee Green on what "cyber-libertarians" don't get
Cc: declan () well com

Eric,

> ----- Forwarded message from owner-politech () politechbot com -----
>
> Government courts have their own flaws. But at least they don't have a
> financial incentive to rule one way or the other. Free enterprise in the
> courts business has been a staple of libertarian literature for years.
> Unfortunately, the experience of the past 20 years of Supreme Court
> revisionism regarding contract law and arbitration, with ICANN, NAF, and
> others as examples, shows that it just doesn't work. The profit motive seems
> to be inherently incompatible with justice.

You're last sentence is correct, but you are mistaken if you believe 
government courts have no financial incentive behind their rulings.   The 
most obvious example is traffic court.   The wonderful Vin Suprynowicz had 
a recent column addressing this very issue.   I'm including it below for 
your reference.

Then of course there are police departments and individual officers who 
receive a percent of the "take" from asset forfeiture.      Law enforcement 
is also part of the government justice system.   As long as LEO's, 
individually and as groups, stand to personally profit by "seizing"  (i.e. 
stealing) private property under the cover of the law there is no justice.

The difference is that ICANN doesn't do it at gunpoint.  With government 
justice the threat of the loaded gun is always present.   As George 
Washington said "Government is Force".

      Pat Holder (mrskenl () webleyweb com)


    FROM MOUNTAIN MEDIA
    EDITORS: A SHORTER, 1,000-WORD VERSION ALSO MOVES
    FOR IMMEDIATE RELEASE DATED DEC. 2, 2001
    THE LIBERTARIAN, By Vin Suprynowicz
    Making up the law as they go along


    If the courts won't enforce the written law -- if they simply make up
whatever's necessary to protect the state's power and its revenues -- why
should the rest of us act as though there's any law that binds (start
ital)us(end ital)? Aren't we then equally free to just make up whatever's
convenient, as well?

  Chad Dornsife, Nevada representative of the National Motorists
Association, says "I thought we had 'em cold, if you want to know the
truth."

  Local pipefitter Mike Mead, 53, gainfully employed, a father of three and
a grandfather, was driving along a four-lane road "behind the K-Mart, east
of Boulder Highway" at Racetrack and Newport roads in Henderson at 2:30 on
the sunny afternoon of June 26, 2000, when one Officer Roy of the Henderson
police department pulled him over and wrote him up for going 47 miles an
hour in a 35 mph zone.

  "At that time there was no school zone there, where he got me was on a
four-lane road. The weather was good. ... He absolutely did not find me
doing anything dangerous; I was in a crowd of cars that I thought I was
keeping up with. ... Those people leave those housing tracts and they do
lickety bob down to the K-Mart -- they go as fast as they can go, I'll tell
you."

  Mead ended up paying the municipality a total of $95, "I believe it was
$45 for the fine and $50 for court fees, though it could have been the
other way around."

  He could have gotten off a lot cheaper if he hadn't fought the ticket, of
course -- the folks in charge of our courts these days apparently think
"justice" is best served by offering cash rebates for paying up and not
rocking the boat.

  "I was offered a $25 fine and go to driving school; they offered me a
deal saying I didn't do nothing wrong. It's just for revenue generation; if
I went to school and paid a $25 fine there'd be no points on my drivers
license, so how can they claim I was doing anything dangerous?"

  But Mead had heard of a case won by Mr. Dornsife up in Reno, by pointing
out to the court that Nevada is bound by both state and federal law to show
a written engineering study justifying any posted speed limit. And "There's
absolutely no way there'd been a study done there and justified 35 miles an
hour," Mr. Mead figured.

  So he called and wrote the Henderson city Traffic Engineer, John Bartels,
asking whether there was an engineering study for that stretch of road. And
indeed, he was told -- first orally and then in writing -- there's no
engineering study backing up (start ital)any(end ital) speed limit sign in
Henderson.

  "He told me, 'We just design the road for 45 miles and hour, and then set
the speed limit 10 miles an hour below the design speed,' which allows them
to write their tickets and raise their revenue."

  The letter submitted into evidence (as Exhibit Number One) upon appeal of
Mead's conviction to the District Court of Judge Joseph Bonaventure is from
John Bartels, city traffic engineer of the Henderson Public Works
Department, and clearly affirms no study was conducted.

  "In your faxed letter, you inquired as to whether or not a speed limit
study was ever conducted on Racetrack Road between Boulder Highway and Warm
Springs Road," wrote Bartels. "The City of Henderson has not, to my
knowledge, conducted a speed limit study on this section of highway."

  Nevada Revised Statute 484.781, titled "Adoption of manual and
specifications for devices for control of traffic by department of
transportation," covers all such devices in Nevada (start
ital)including(end ital) the speed limit signs themselves, and (in
compliance with a separate federal law which requires any state accepting
federal highway funds to adopt this statute, by the way), stipulates:

  "2. All devices used by local authorities or by the department of
transportation shall conform with the manual and specifications adopted by
the department."
  The manual mentioned (the state had no choice - it's the manual they're
required to adopt if the want the federal highway moneys) is the national
Manual on Uniform Traffic Control Devices (MUTCD), published by the Federal
Highway Administration.

  The updated Millennium Edition of MUTCD, at Section 2B.11 "Speed Limit
Sign (R2-1)," stipulates (remember, this has now been adopted as Nevada
law): "After an engineering study has been made in accordance with
established traffic engineering practices, the Speed Limit (R2-1) sign
shall display the limit established by law, ordinance, regulation, or as
adopted by the authorized agency. The speed limits shown shall be in
multiples of 10 km/h (5 mph).

  But in the Henderson case, "They admitted there was no study done or any
documentation," insists a still incredulous Chad Dornsife of Reno. "This
passage couldn't be clearer."


    #    #   #


  And what is the legal definition for the term 'engineering study'? "MUTCD
1A.13 Engineering Study: The comprehensive analysis and evaluation of
available pertinent information, and the application of appropriate
principles, Standards, Guidance, and practices as contained in this Manual
and other sources, for the purpose of deciding upon the applicability,
design, operation, or installation of a traffic control device. An
engineering study shall be performed by an engineer, or by an individual
working under the supervision of an engineer, through the application of
procedures and criteria established by the engineer. An engineering study
shall be documented."

  "Documented," which in legalese always means: "in writing."

  Yet on Nov. 14, putting the continued cash flow of the traffic fine
system ahead of such arcane notions as enforcing the law as it's written,
District Court Judge Joseph Bonaventure ruled in the case of Mike Mead
travelling 47 miles per hour, even after admitting into evidence the
unrebutted letter from the city admitting there was no engineering study,
as follows:

  "Having read the briefs and the record below and having heard oral
arguments of the parties, the Court finds that an engineering and traffic
study was performed by the City and that the numeric speed limit of
thirty-five miles per hours (35 mph) was reasonable and not arbitrarily
set."

  "There was no study done there and the judge said 'My ruling is that
there was a study done.' The city said, 'We didn't do one,' " laughs an
amazed Mike Mead. "(Judge Bonaventure) said 'I was a municipal judge for 10
years and I never heard of this manual; I never even heard that there
was a
rule like this.' He says, 'I do murder cases and I have never seen a brief
this thick.' So he took three weeks to study it and then he sent his ruling
to the city; he didn't send it to me. I was the one who appealed it and he
didn't even have the courtesy to send me a ruling.

  "When I went to district court I thought I would get something decent
because I know the judge in Henderson lives off of those fines," Mead
explains. "That's his paycheck; that's his pension. I should have asked him
to recuse himself because his pension is part of those fines. But at the
district court, I would not have thought to do that. ...

  "I'm amazed now that there may be thousands of cases where the city has
not done an engineering study. ... I asked him, how many studies can you
show me around town, and he told me on the telephone, 'None; we haven't
done any.' "

  Chimes in Dornsife of the National Motorists Association: "The letter
clearly shows no study was done; federal and state law both clearly say the
study has to be a written document; a 'study' can't just be some guy
eyeballing the road and pulling his chin and saying, 'Looks like 35 miles
an hour to me.' "

  And the irony is, Dornsife insists, that accident rates are actually
reduced when states like California have done the required engineering
studies and posted the (often higher) legally justified limits which
result, since traffic then moves more freely, without bottlenecks and the
frustration which can lead to truly dangerous driving behavior.

  "How can you check to see if the study was done right when there's no
study? ... The last sentence of the law says 'and it shall be documented.'
... I thought we had 'em cold, if you want to know the truth. On the
federal web site it says, 'There are no exceptions.' ...

  "This isn't rocket science. ... There is a national standard and
practices code. We simply ask that it be followed. And when it's followed,
accident rates go down! Beyond speed limits, this includes signal timing,
stop-sign use ... crosswalks, speed bumps ... a whole litany of other
issues."


    #    #    #


  But why would Judge Bonaventure -- who didn't return my calls last week
-- have blatantly lied and said there was a written study done if there
really isn't one?

  "Because if Nevada followed the law it would be a threat to the paychecks
of the very judges, district attorneys, city officials, traffic officers,
and all the rest  that depend on these fines for their very subsistence,"
Dornsife responds.

  "And it's a clear conflict with another tenet of our laws that the trier
of fact, the prosecution and state witnesses should not have a financial
interest in the outcome of a case. But contrary to this basic tenet, here
they literally live off and are virtually wholly dependent on the fines
collected. ...

  "Moreover, in a very telling justification for the conviction, the
Henderson District Attorney in their brief argued that speed traps are
legal in Nevada. ...

  "We do not have a rule of law. What's happened in Nevada and it's
happened in every state is that the courts are wholly dependent on this
damned traffic money. ... It's a farm system for the theft of public funds;
it's just like this judge out here in Mina (Nevada) who bought the radar
for the local cops to use to improve the income for his court. What kind of
insanity is that?"

  Legislators like Lynn Hettrick and Maurice Washington have worked with
Dornsife attempting to put teeth in the state law against these illegal
speed-trap schemes since 1991, he says - proposing laws which would bar the
use of radar to enforce speed limits not backed up by the proper
engineering studies, for instance -  but Dornsife says State Sen. Bill
O'Donnell has used his position on the Transportation Committee to block
such reforms in three separate sessions.

  "There's just too much money involved; you'd be goring too many sacred
cows; the courts are too dependent on all these dollars ...

  "I think it would be good for people to find out just how corrupt the
courts are," Dornsife pleads. "This case in Las Vegas just put me over the
edge. ... How can you go to court with such clear, decisive evidence and
just have them throw it out? The primary duty of the Nevada Highway Patrol
now is writing speeding tickets and every court in the state lives off
that;  it's a whole infrastructure now based on not safety, but revenue. I
haven't seen a single court in Nevada where you can get a fair trial (in a
traffic case.)"

  The state Supreme Court tells him "this is not an issue that's of
interest to them," Dornsife says; Assistant Attorney General Brian Hutchins
"told me their job is to protect the DMV, not the public.

  "So if we can't get relief in the courts and the courts are going to rule
nonsensically, where do you go? It's clear that the court is not following
the law. ... Henderson acknowledges there is no study; yet the courts rule
there has been an engineering study, so you can't get there from here."

  Indeed: If the courts won't enforce the written law - if they simply make
up whatever's necessary to protect the state's power and its revenues - why
should the rest of us act as though there's any law that binds (start
ital)us(end ital)? Why aren't we equally free to just make up whatever's
convenient as we go along, as well?

  Mike Mead's appeal was case C176390; Chad Dornsife can be reached at
775-851-7950 or via e-mail at chad () hwysafety com. Judge Joseph Bonaventure
did not return my calls.


Vin Suprynowicz is assistant editorial page editor of the Las Vegas
Review-Journal. Subscribe to his monthly newsletter by sending $72 to
Privacy Alert, 561 Keystone Ave., Suite 684, Reno, NV 89503 -- or dialing
775-348-8591. His book, "Send in the Waco Killers: Essays on the Freedom
Movement, 1993-1998," is available at 1-800-244-2224, or via web site
www.thespiritof76.com/wacokillers.html.

***


Vin Suprynowicz,   vin () lvrj com

"When great changes occur in history, when great principles are involved,
as a rule the majority are wrong. The minority are right." -- Eugene V.
Debs (1855-1926)

"The whole aim of practical politics is to keep the populace alarmed -- and
thus clamorous to be led to safety -- by menacing it with an endless series
of hobgoblins, all of them imaginary." -- H.L. Mencken

* * *


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