March 29, 2008

2008 VT 39

2008 VT 39 Vermont Supreme Court Rules on Aerial Surveillance as an Intrusion on Privacy

Justice Dooley argues that the Supreme Court's decision is flawed by its overly broad interpretation of law in a marijuana conviction (overturned). The case involved a low level helicopter flight (no warrant for the flight) that identified plots of marijuana grown by the defendant close to his home on private property adjacent to a national forest.

Dooley is right that this broad decision is not serving the interests of law enforcement nor anyone else. I was particularly struck by the quote from 'Professor LaFave' that Dooley uses:

"My disagreement with the majority lies in its assertion that it has written “narrowly” by refraining from ruling based on the altitude of the helicopter and by  relying instead upon the totality of the circumstances.  By relying on a multitude of factors, most of which are irrelevant to whether a search occurred here, and by refusing to assign any particular weight to any factor, the majority has painted with the broadest brush imaginable, far broader than any other court in the land.  Every factor the majority introduces into the analysis makes the grounds for its decision broader.  This is not narrow decision making.  Increasingly, we are using rationales in Article 11 cases that require the intervention of this Court before it can be determined whether law enforcement conduct was lawful, because no law-enforcement officer, citizen, or trial court judge could ever predict what we will ultimately decide.  Professor LaFave has explained the problem with an approach like the majority’s as follows:

  The basic premise is that Fourth Amendment doctrine, given force and effect by the exclusionary rule, is primarily intended to regulate the police in their day-to-day activities and thus ought to be expressed in terms which are readily applicable by the police in the context of the law enforcement activities in which they are necessarily engaged. A highly sophisticated set of rules, qualified by all sorts of ifs, ands and buts and requiring the drawing of subtle nuances and hairline distinctions,  may be the sort of heady stuff upon which the facile minds of lawyers and judges eagerly feed, but they may be literally impossible of application by the officer in the field.

   If the rules are impossible of application by the police, the result may be the sustaining of motions to suppress on Fourth Amendment grounds with some regularity, but this can hardly be taken as proof that the people are secure in their persons, houses, papers, and effects against unreasonable searches and seizures. Rather, that security can only be realized if the police are acting under a set of rules which, in most instances, make it possible to reach a correct determination beforehand as to whether an invasion of privacy is justified in the interest of law enforcement.  In short, we must resist the understandable temptation to be responsive to every relevant shading of every relevant variation of every relevant complexity lest we end up with a [F]fourth [A]mendment with all of the character and consistency of a Rorschach blot.

2 W. LaFave, Search and Seizure § 5.2(c), at 448-49 (2d ed. 1987) (footnotes and internal quotations omitted).  The rule announced by the majority today falls into precisely the trap Professor LaFave outlines.  No one, be it the trial courts, law-enforcement officers, or the citizens of this State will consistently be able “to reach a correct determination beforehand as to whether an invasion of privacy is justified” under similar circumstances.  Id.   I do not think we administer justice with such an approach, and we hardly guarantee to “the people” that they will be secure in “their persons, houses, papers, and effects against unreasonable searches and seizures.”  Id. (quotations omitted).

¶  64. I would reverse and remand, but on a much narrower rationale, fully consistent with the precedents from this Court and courts in other jurisdictions, thus giving better guidance to trial courts, ordinary citizens, and law enforcement.  Thus, although I concur that the helicopter observation violated defendant’s rights,  I cannot approve of the majority’s mode of constitutional analysis or of the remedy it imposes.

(Emphasis added by dju)

2008 VT 39

March 27, 2008

Bravo Freep!

Today's editorial in the Burlington Free Press exposes the flaws in the affordable housing bill under discussion in the Legislature.

"...Housing within the reach of a broad range of incomes is key to ensuring prosperity in Vermont. Too often, we hear the cost of housing as among the reasons why an employer is unable to attract employees to fill an available job.

The only way housing prices will come down is if the supply increases or the demand falls. The latter would signal trouble because an economic slowdown is the usual reason behind falling demand. That leaves building more homes as the preferred solution.

Vermont has done a pretty good job of balancing the need for growth and protecting open lands that help define the state's character and image. That must continue. But in order to deal with the state's housing problem, those Vermonters who see growth as somehow diminishing the quality of life here need to get over the notion that development is a dirty word.
Kudos to the Free Press editorial board for getting it right!

March 26, 2008

Comcast, Time Warner Cable in Wireless Talks -

If this WiMax consortium/deal can be pulled together, it may provide a substantial increase in the broadband options and coverage for unserved rural areas. Meanwhile, Verizon and AT&T will continue to push their 3G/4G wireless broadband technologies where they are likely to find profitable revenue.

Comcast, Time Warner Cable in Wireless Talks -

March 22, 2008

Hopes for Wireless Cities Fade as Internet Providers Pull Out - New York Times

I have always been a skeptic of the models for municipal Wi-Fi that were all the rage a few years ago. They always seemed to me more hype than substance. Those muni partners who, like Earthlink, believed that they could wrest enough broadband customers from telcos and cablecos to subsidize 'free' service to certain demographic/social groups deceived themselves. Those social advocates who sponsor 'free lunches' for people now must seek a different approach for broadband access.

As a matter of principle, I do not generally favor municipalities building and owning telecommunications facilities that compete directly with the private sector when private sector providers are available and willing to provide essentially the same services. However, Vermont law allows it, as does that of other states.

If governments decide to sponsor 'free' services, they should directly subsidize those users who they believe may find market prices unaffordable. Then, if services are available, users can choose their own provider. Where broadband services are not available, then munical ownership may be the only feasible alternative.

This broadband subsidy issue will surface in Vermont and elsewhere soon, I think. I sense pressure is building to include broadband access in Vermont's 'Lifeline' service definition as broadband access to the Internet becomes increasingly important for folks to participate effectively in today's and tomorrow's society. Certainly broadband is becoming an essential service, but the method of subsidizing access to that surface won't fit the paradigm used for today's Lifeline program.

Today, that subsidy for low income folks is obtained by surcharges on the monopoly services provided by the telcos. Broadband and wireless are presently 'information services' under the FCC rules that support the Telecom Act of 1996. However, the federal Universal Service Fund does support both wireless and wireline carriers who build out voice services in rural and high cost areas, but (to the best of my knowledge) does not cover Lifeline support to end users/customers.

The rules of the game need to change at the federal level if broadband access is to become part of the FCC lifeline subsidy program.

Hopes for Wireless Cities Fade as Internet Providers Pull Out - New York Times

March 20, 2008

Small Business Mentoring

The following was published in the Colchester Sun on March 20, 2008.


Mentoring Small Businesses

We all know Vermont is a small business state. Yes, we are fortunate to have a few large companies and employers, mostly concentrated in Chittenden County, who provide good jobs with generally excellent wages and benefits to 12% of Vermonters.

But 90% of businesses employ less than 50 and 58% have four or fewer employees. In my career, I have worked for both very large and small companies and I have learned much from both. The one truism that transcends all others is this: skilled, motivated and inspired people who are well led create success for a company.

As I entered the last third of my life, I became involved with the Peer-to-Peer (P2P) Collaborative at the Vermont Sustainable Jobs Fund because it provides an opportunity to give back some of what Vermont has given to me.P2P matches a team of two or three CEOs, COOs and CFOs as advisers with the owner and management team of small businesses.

After an extensive interview with each client company, these entrepreneurial firms 'hire' us as business consultants at a fixed cost, approximately half to a third of usual consultant fees, for 8-10 work sessions. During 12-18 months the adviser team meets with their peers in the business to tackle problems of growth, operations, financing, marketing and customer service. We advisers willingly share what we've learned in business...and in life... with clients as they grapple with issues to make their businesses successful.

In working with these entrepreneurs and their teams, I have come to respect their intense commitment and passion for their ideas. They want to succeed, not only for the possible, although not guaranteed, financial payoff, but to be able to pay their employees well with benefits they can afford. Those that I've worked with sincerely want to be in Vermont and 'do their thing' in this state, rather than elsewhere.

P2P advisers work directly with businesses generally with annual revenues in the $1-15 million range who desire to grow and become more efficient in their operations, or to position the company to be sold. Teams of 2-3 advisers are matched to the needs identified in an extensive intake interview by a successful CEO. That interview produces a work plan and a set of goals for the engagement.

So far, I have worked with three companies. Two design and manufacture innovative products and the third is a service company. The one factor I find in common is their need for and difficulty in finding skilled, reliable employees. As I contemplate Vermont's present business environment, we are extraordinarily blessed because so many creative and thoughtful people want to do business in a state they love. Policymakers should take great care to enable an environment where they can do that without unnecessary barriers to success.

Speaking for myself and not for the Vermont Sustainable Jobs Fund, the Legislature should not unduly tax these business owners or the fruits of their labors and risk-taking when the time comes for them to realize capital gains. I also caution against excessive regulation and higher than necessary workers compensation costs caused by laws and rules that are out of step with those elsewhere.

Finally, the personal income and property tax burdens should be constrained. Vermont should carefully control its costs and taxes thus enable all of the private sector to thrive and grow. Otherwise, we run the risk of even more young people leaving Vermont, the very people our small businesses need for their growth and success.

David Usher lives in Colchester. He and his wife, Carol, run a small business.

Weiss Makes Plea Deal In Kickback Case -

Getting this shyster is akin to Eliot Spitzer's downfall. Abusing the public trust as Weiss did should be punished severely. Wall Street and companies who were targets of his scheme should be pleased this guy is finished.


"Melvyn Weiss, the onetime powerhouse shareholders lawyer, has struck a deal to agree to plead guilty in a case alleging improper kickbacks, according to a person familiar with the investigation.

His lawyer declined to comment. The terms of the deal, which could be announced as early as today, weren't known.

[Melvyn Weiss]

Mr. Weiss, 72, was indicted in September on charges in connection with his role in an alleged scheme at his law firm, now known as Milberg Weiss LLP, to pay millions of dollars in kickbacks to clients in exchange for their being at the ready to serve as name plaintiffs in lucrative shareholder class-action cases. He was charged with four counts and could have faced 40 years in federal prison if convicted on all of them in a trial."

Weiss Makes Plea Deal In Kickback Case -

Dean Kamen's Genius - A Prosthetic Arm

Dean Kamen in New Hampshire is one of those special few engineering geniuses in our nation. You'll remember him as the inventer of the Segway which is an amazing device but has had limited popularity.

But please click on the link below to watch this video to see what he's doing recently. It's mind blowing and wonderful.

March 15, 2008

The Rank-Link Imbalance - New York Times

Insightful pieces like this continue to enhance my respect for David Brooks' understanding of people and our society. This is well worth the time to read.

The Rank-Link Imbalance - New York Times

March 13, 2008

PC World - Business Center: Study: Widescreen Displays Boost Employee Productivity

And if you believe that buying a wide screen for employees gets you the equivalent of 76 more workdays a year....that's +30%...there's a bridge in NYC that you also should buy.

A study that produces results like these is flawed or the story writer has wrongly cast the study results. Don't believe it. Reducing task time does not translate into the equivalent in 'work days' gained.

"Can you see your way to wasting less time? One new study says yes: Organizations that upgrade their employees' standard-format monitors to widescreen displays can realize productivity gains equivalent to 76 extra work days a year per worker"

PC World - Business Center: Study: Widescreen Displays Boost Employee Productivity

March 12, 2008


Undoubtedly, this notion of keeping Vermont like it was appeals to a host of people in the state, but nowhere in this report do I learn how Vermont could possibly sustain itself under the idyllic state proposed. What's the economic model?

Would we resort to some agrarian lifestyle? What infrastructure should support a population 1/2 the size of the current numbers?

Please, Mr Plumb, tell us how this utopia would be paid for. What lifestyle and culture changes would you propose? Where should we begin?

I'm afraid VSPOP is whistling is the wind. The clock cannot be turned back. Instead, we'll struggle forward.


DisappearingVermontFINAL08.pdf (application/pdf Object)

March 11, 2008

How others assess the economy - Los Angeles Times

Enuf said!

How others assess the economy

March 11, 2008

What others say

The UCLA Anderson Forecast says the economy will avoid recession. Here's what other prominent observers have said on the topic.

* Warren E. Buffett, chief executive of Berkshire Hathaway Inc.: "By any common-sense definition, we are in a recession."

* Lawrence H. Summers, former U.S. Treasury secretary: "We are facing the most serious combination of macroeconomic and financial stresses that the U.S. has faced in a generation -- and possibly, much longer than that."

* Jack Welch, former General Electric Co. CEO: "If I had to bet a dollar or two, I'd bet we'll have a positive GDP in the first quarter, and the second quarter. But it certainly is a slowdown of enormous proportions from what we were experiencing."

* Donald H. Straszheim, vice chairman of Roth Capital Partners: "It's clear to me that the U.S. economy is in a recession."

* David Rosenberg, Merrill Lynch economist: "According to our analysis, this [recession] isn't even a forecast anymore, but is a present-day reality."
Research by Scott Wilson

How others assess the economy - Los Angeles Times

March 10, 2008

MELTDOWN: GQ Features on

An excerpt from a long piece in GQ making the case for nuclear electricity generation. Those who oppose nukes have the burden of explaining what other source(s) of electricity can meet the demand as efficiently and at such a low cost.

I'm sorry, but wind and solar don't make the cut, although continued growth in these two expensive sources will contribute a very small fraction of the demand...when the wind blows and the sun shines.

"Still, for nearly thirty years, the psychological fallout from TMI has metastasized into something much more difficult to measure or explain. In the aftermath of the meltdown, the number of Americans who support nuclear-power plants has dropped from a high of 70 percent before the accident to around 40 percent, and today one in ten people would like to eliminate the nation’s fleet of nuclear plants entirely. What drives this opposition, in many cases, is the conflation of magnitude with probability. That is, when people worry about nuclear power, what they worry about is the scale of an accident, not the likelihood. In this regard, nuclear power is just the opposite of the nation’s coal-fired plants, where harm to the environment is both ruinous and certain but comfortingly slow. It may take decades or even centuries for the effects of particle soot, acid rain, and global warming to claim a million lives. By contrast, the nightmare scenario with nuclear power is decades of cheap, plentiful, pollution-free energy—followed by a sudden meltdown that wipes out a city. For most people, the reality that coal-based pollutants like mercury and sulfur dioxide are killing us every day—taking as many as 24,000 lives per year, according to nonpartisan researchers (that’s a Chernobyl disaster every eleven hours), while nuclear plants have never claimed an American life—is beside the point. The image of a city disappearing in a nuclear haze, however improbable it may be, trumps everything else. Many people, according to polls, not only oppose building new nuclear plants; they oppose the ones we already have. Unfortunately, since nuclear energy currently makes up about 20 percent of the nation’s electrical supply, in order to eliminate it, the rest of the nation’s power suppliers would have to amplify their own production by 25 percent of existing levels. Since that’s not possible for most current renewables—like wind, solar, and hydroelectric farms, which are already maxed out—the real cost of eliminating today’s nuclear-power supply would be an immediate 30 percent increase in the nation’s coal, gas, and oil plants. That’s 30 percent more sulfur dioxide, mercury, and nitrogen oxide in the air than we’re emitting today. Also, since those plants make up nearly 40 percent of the nation’s total carbon dioxide output, that means an instantaneous, and permanent, 12 percent rise in carbon emissions. If only the GNP did so well.

MELTDOWN: GQ Features on

Spitzer Is Linked to Prostitution Ring - New York Times

Payback time for Governor Spitzer, the 'holier than thou' prosecutor who built a reputation on the backs of business and thr seemingly limitless prosecution of Wall Street firms. Let's watch and wait for his defenders to excuse this behavior.

Meanwhile, the Wall Street Journal editorial on March 11, 2008 seems to hit the nail on the head: Spitzer was an out-of-control bully.

And people elected him. PT Barnum got it right! Now his decision is when to resign. And the law's decision is whether to prosecute him.

"ALBANY - Gov. Eliot Spitzer, who gained national prominence relentlessly pursuing Wall Street wrongdoing, has been caught on a federal wiretap arranging to meet with a high-priced prostitute at a Washington hotel last month, according to a law enforcement official and a person briefed on the investigation."

Spitzer Is Linked to Prostitution Ring - New York Times

March 4, 2008

My 10 favorite Windows programs of all time | Ed Bott’s Microsoft Report |

I've been a fan of Ed Bott's writings and analysis for some time now. His list of 10 best programs deserves a look. I just downloaded the Windows Live Photo Gallery and it's a really good photo organizer and editor (for simple functions). It's 'automatic' correction renders astonishingly good results. A very powerful program.

I'll try more of his recommended programs in the future.

My 10 favorite Windows programs of all time | Ed Bott’s Microsoft Report |

The World Has Plenty of Oil -

The World Has Plenty of Oil -

[WSJ may require subscription to view this opinion piece]

This expert does not see 'peak oil' anytime soon. His logic and rationale make sense to me.

"The world is not running out of oil anytime soon. A gradual transitioning on the global scale away from a fossil-based energy system may in fact happen during the 21st century. The root causes, however, will most likely have less to do with lack of supplies and far more with superior alternatives. The overused observation that "the Stone Age did not end due to a lack of stones" may in fact find its match.

The solutions to global energy needs require an intelligent integration of environmental, geopolitical and technical perspectives each with its own subsets of complexity. On one of these -- the oil supply component -- the news is positive. Sufficient liquid crude supplies do exist to sustain production rates at or near 100 million barrels per day almost to the end of this century.

Technology matters. The benefits of scientific advancement observable in the production of better mobile phones, TVs and life-extending pharmaceuticals will not, somehow, bypass the extraction of usable oil resources. To argue otherwise distracts from a focused debate on what the correct energy-policy priorities should be, both for the United States and the world community at large."

Mr. Saleri, president and CEO of Quantum Reservoir Impact in Houston, was formerly head of reservoir management for Saudi Aramco.

The World Has Plenty of Oil -

March 3, 2008

About Those Health Care Plans by the Democrats ... - New York Times

This NY Times piece examines the cost drivers behind Medicare's rush toward bankruptcy. My advice: believe no political candidate's rhetoric on the issue of health care. Most pander to the their followers with the 'universal coverage' mantra. This will do nothing to reduce system costs, but of course they know that.

The only way that costs will be reduced substantially are: efficiency improvements, mostly by using Information Technology smartly; improvements in self-discipline to reduce the need for care; and limiting the tests and procedures available. Health care 'on demand'  is not sustainable.

About Those Health Care Plans by the Democrats ... - New York Times

March 1, 2008

Big Spenders in Vermont's House

The free-spending leaders in the House of Representatives have no desire to constrain education spending and our taxes. That's obvious as they try to repeal portions of Act 82, a law passed last year allowing two local votes, once on a school budget that is rising by inflation plus one percentage point, and again for any increase proposed above that amount. The procedure the law requires has not yet taken effect. Governor Douglas rightly opposes it.

The education lobby has obviously gotten to them. The arguments these free spending lawmakers use use are beyond silly as they mount an effort in the House to repeal a law that enables local control.

Legislators Pearson (P) and Ancel (D) on the House Education Committee argue that voters 'would be confused' or that 'this is an insult to local control.' These statements demean the intelligence of voters who deserve as much control as possible to keep their taxes reasonable.

At Least 45 Killed in Israeli Strikes in Gaza - New York Times

And on it goes, the forever battle between the Palestinians and the Israelis. The media dutifully reports the endless story. They are sure to include the wailing stories of Palestinian civilians who have been injured or with relatives that have been killed by Israeli military action.

Where are the interviews, Mr. Erlanger and colleagues, with the Israelis who live in constant fear of these indiscriminate rocket attacks perpetrated by Hamas in Gaza?

Your bias for the Palestinian side is obvious in your reporting and from the editors at the Times.

Here is my bias: Terrorists should be stopped, killed if possible. That the Hamas terrorists deliberately launch rockets from civilian enclaves, obviously done to to elicit worldwide sympathy from gullible people and Hamas sympathizers, makes their terror all the more heinous. Israel has the right and should continue to defend itself from these rocket launching bastards, killing as many as possible to stop the indiscriminate terror against their populace.

At Least 45 Killed in Israeli Strikes in Gaza - New York Times