Philosophy, Law and Politics

Is It Becoming a Meritocracy?

I attended the annual CBA-Roundtable Minority Summer Law Clerk Reception of the Cincinnati Bar Association, held this year in the Cincinnati headquarters of historic Taft Stettinius & Hollister LLP. Taft made a stupendous effort in welcoming law students far beyond the bounds of the traditional path of the “stocks and bonds” law firm. The large gathering included prominent Cincinnati  attorneys and governing officials whose careers began much before the era of “discussions of Diversity and Inclusion.” Several first in the family college graduates and law students, whose summer private sector position was a continuation of their academic year law clerkship, expressed true and sincere appreciation for participation early in their careers. Many years ago, fear and resentment would have been evident, but less so in the era of the Clintons and the Obamas. Attorneys who are graduates of elite law schools are now a known entity.

My personal view toward issues of diversity and inclusion, as well as to most all subjects, does not go beyond one of academic diplomacy, based upon merit. I rarely, if ever, form an opinion which I would sternly support against another. Perhaps, doing so would be necessary if the law in Cincinnati and Ohio, state and federal, were more competitive as to client interests. It seems, rather, you may draft beyond reasonably anticipated future challenges.

Fundamentally, the issue of diversity and inclusion in the Cincinnati remains a question, even in light of the true expression of grace at this year’s Minority Law Clerk Reception, of revisionism in the interpretation of local history. Diversity and inclusion are, together, of the many questions asking the manner in which Ohio, and, specifically, Cincinnati, reach the accomplishments reached long ago by many cities and states in America. In some respect, modern issues of inclusive and diverse public and private policies require historical due diligence. This diligence would ask as to the possibly causative and still existing precursors to our issues of, as is our lengthy litany: “affirmative action;” “ending separate-but-equal or defacto segregation;” “integration;” “lack of discrimination;” and “transcending segregation.”

As a Sole Practitioner admitted into practice in the States of Ohio and New York, I have returned to my primary legal subject of administrative law, state and federal, after years in researching and writing on topics of federal litigation. Before, I was not permitted to present arguments found in the judicial opinions of courts beyond the Sixth Circuit, nor in scholarly secondary legal sources.

In solo general private practice, I have given comment on a variety of proposed Ohio Administrative Code provisions, as well as proposed regulations of the U.S. Securities and Exchange Commission and the U.S. Department Health and Human Services. With interpretative reliance upon the founding principles of American government and traditional legal methods of research and argument, one may readily suggest improvements in our governing law.

One belief I do hold is that, in America,  private legal practice, even mine, is the source of American common law. For, our common law  is actualized from custom unto law by courts and commercial contractual  dealings.

From this, questions arise as to how we might garner acceptance of all law school graduates, equally, by all employers. Have we asked how we do this without great disregard for personhood as to any? For, justice is not thereby accomplished. In asking that the least graduated are accepted first by the traditionally reclusive within the legal community, as is being done in both the private and public legal sectors, how will accreditation bullying be dissuaded if it is accorded profit and merit by being paid first?

In the last 25 years or so, Cincinnati has dramatically experienced major economic growth and prosperity. The local universities are more noteworthy than ever before for notable faculty and truly more expansive research programs and centers. Yet, the law in Ohio, has not similarly kept pace.

The Ohio Administrative Procedure Act, in its present form, dates from the mid-1950’s. The Ohio Revised Code has not been revised to encourage economic advance, no less to permit the successful management and retention of the material success Ohio, and Cincinnati, have enjoyed. Most developing cities and states have managed both law and money.

 Cincinnati does not live under the aura of national institutions of higher education that benefit Ohio’s northern cities. And, Ohio law has also not developed as has our international commerce has developed. To an even greater extent, the agenda of pending maters before the weekly meeting of the Ohio Joint Committee on Agency Rule Review, indicates that Ohio’s administrative law is scarcely worthy of being deemed “final agency action” in 2018 by state and or federal standards.

Relative to the laws written by attorneys in the State of New York and within the federal government, the laws of Ohio are truly a cruelty.  Even if the cruelty does not result from enforcement of obsolete legal standards, the cruelty occurs when those who have chosen to reside and make commitments to neighbors and institutions are then finding themselves under an anvil of suppressive statutes and administrative rules lacking the modern reasoning and logic of the material goods, services and technologies imported into the State of Ohio  in interstate commerce to which they commit their funds.  Funds and services these arcane statutes profess to govern.

If our laws lack clarity and reasoning, no one can self-govern, regardless of partisanship or opinion. How do clients, attorneys and law students know the source of anxiety in professionalism and in consummating legal services? Without, a best-efforts approach to legal services and best-efforts selection of attorneys and law clerks how will any meritocracy ever be accepted or regarded? To what does our democracy then devolve?

As citizens, as well as attorneys, we have no publicly shared actualizing dialectic, Hegelian or otherwise. Our American government and economy, private and public, are defined as a natural, meritocratic system of profit-based competition, permitting the creation and ownership of value with respect for liberty and privacy.

In Cincinnati, the concern is that the majority of residents do not inform themselves and do not form opinions. They seem mentally transient, as I seem to believe I have heard others say. They seem without a sense of Hohfeldian right, or even privilege, to mentally consider information readily available to the public, no less form an opinion. There is a sense of self-imposed mental repression.

Perhaps the two major political parties gave for too long and without due meritocratic review opportunity to hold government office to those from a variety of social strata not ever before officeholders in America. These are those in the nation who were not among those graduated from elite academic American institutions of higher education. These are those not from the moneyed classes.

Yet, delegating the power to draft and or effectuate legislation and imprison citizens to those for centuries deemed scarcely qualified to hold office is neither democracy nor justice unless the officials demonstrate equal or superior merit.  These not yet officeholders were long denied candidacy for office, in part, because they were not of the rich and powerful aristocracy in America, among other reasons. This is the basis for the argument that the absence of participation as representatives was unjust. It is not an expression of unfairness that one is denied nomination because another candidate is of a greater college board ranking than thou. Such a denial is not violative of the thought of Edmund Burke, nor Jack Randolph, nor T.J. Such a denial or exclusion similarly comports with meritocratic selection of attorneys and legal arguments.

My thoughts on “what is wrong” in Cincinnati and Ohio, as the once Chair of Democrat Ward 7 John Albert “Socko” Wiethe, as the immediate predecessor to my father Charles Nuckolls,  as Chair, used to say, are derived from the phrase: “Let history be our guide.”

Lori Gayle Nuckolls, Esq.

Protected: Philosophy, Law and Politics

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Philosophy, Law and Politics

Should Income Parallel Success, Private and Government?

 The current salary of a Federal appellate judge sitting within one of the U.S.  judicial circuits is $220,600 per year. http://www.uscourts.gov/judges-judgeships/judicial-compensation. This includes the current annual salary of sitting Judge Brett Kavanaugh of the D.C. Circuit. If Judge Kavanaugh is promoted to the U.S. Supreme Court, he would be an Associate Justice and would earn $255,300 sitting under Chief Justice John Roberts. The Chief Justice earns $267,000.  http://www.uscourts.gov/judges-judgeships/judicial-compensation. Do their salaries adequately compensate them for the value of their labor and contribution to America and to Americans? How do we justly and fairly value their contribution?

 

Antifederalist No. 1 said of the proposed U.S. Constitution, in its “General Introduction: A Dangerous Plan of Benefit Only to the “Aristocratick Combination:”

 “I am pleased to see a spirit of inquiry … upon the subject of the NEW PLAN …. If it is suitable to the GENIUS and HABITS of the citizens of these states, it will bear the strictest scrutiny. The PEOPLE are the grand inquest who have a RIGHT to judge of its merits. The hideous daemon of Aristocracy has hitherto had so much influence as to bar the channels of investigation, preclude the people from inquiry …. At length the luminary of intelligence begins to beam its efflugent rays upon this important production….”

 In our modern words, We as the People of America govern our country having, liberated our American Colony from the British Empire, and having established a republican form of government. The Founding and Governing Fathers and Mothers, then deemed and still deem, their beloved People and Publick, the “tyrannous majority.” For, though we are all worthy of the essential human nature of mankind, we are not all worthy of ascending unto those among us who “represent the masses” comprising our American Republic. The Founding and current Governing Persons of America are of the privately governing intelligentsia of America, our “natural aristocracy,” not solely to be derived from the governing “Aristocratick Combinationand “daemon of Aristocracy” of Anti-Federalist parlance. Before the American Declaration of Independence, Englishman William Blackstone said, similarly of the English aristocracy, governing “peers of the realm are by birth hereditary counsellors.” (William Blackstone. Commentaries on the Laws of England, Book the First: Of the Rights of Persons. Ch. 5, l. 6.)(1765). How do we reform an economic structure in which value and income are determined and derived, not by merit and contribution to the administration and governance of society and our community, but by Roman game like, enzombieing, entertainment, tendered to a nonparticipatory public that is uninformed and is not capable of self-governance?

 

A philosophical appeal in English Statesman and Philosopher Edmund Burke‘s “Letter from The New to The Old Whigs” in, 1791, suggests that:

“A true natural aristocracy is not a separate interest in the state, or separable from it. It is an essential integrant part of any large body rightly constituted. It is formed out of a class of legitimate presumptions, which, taken as generalities, must be admitted for actual truths. To be bred in a place of estimation; to see nothing low and sordid from one’s infancy; to be taught to respect one’s self; to be habituated to the censorial inspection of the public eye; to look early to public opinion; to stand upon such elevated ground as to be enabled to take a large view of the widespread and infinitely diversified combinations of men and affairs in a large society; to have leisure to read, to reflect, to converse; to be enabled to draw and court the attention of the wise and learned, wherever they are to be found; to be habituated in armies to command and to obey; to be taught to despise danger in the pursuit of honour and duty; to be formed to the greatest degree of vigilance, foresight, and circumspection, in a state of things in which no fault is committed with impunity and the slightest mistakes draw on the most ruinous consequences; to be led to a guarded and regulated conduct, from a sense that you are considered as an instructor of your fellow-citizens in their highest concerns, and that you act as a reconciler between God and man; to be employed as an administrator of law and justice, and to be thereby amongst the first benefactors to mankind; to be a professor of high science, or of liberal and ingenious art; to be amongst rich traders, who from their success are presumed to have sharp and vigorous understandings, and to possess the virtues of diligence, order, constancy, and regularity, and to have cultivated an habitual regard to communative justice: these are the circumstances of men that form what I should call a natural aristocracy, without which there is no nation.”

American democracy guarantees: (1) liberty to act without encroachment; (2) freedoms of belief and expression; (3) a right to property; and (4) representative participation.  In drawing the line between the rights of personal and real property rights to enforce and those rights of personal and real property to not enforce, how should we draw the law attributing ownership? Do our governing authorities possess a metaphysical, in-kind contribution of productive labor, not yet acknowledged and compensated?  How do we attribute the right of ownership and upon what criteria do we base value?

 

Monetary creation, if to forever remain democratic in our society, requires an assurance of justice and fairness, guaranteed to the youngest of age within the smallest of political subdivisions. Justice and fairness are required within the smallest of political subdivisions in the United States of America to the largest. Within the U. S. of A., the sitting U.S. Supreme Court sits within America, as a political subdivision. America, itself, is within the various international entities to which the U.S.A. belongs. And, America’s own international political subdivision boundary exists coextensively with the sovereign political boundary of the United States itself. The financial compensation paid in America to our governing authorities, our natural aristocracy, should permit any American to ascend to the utmost respected stratum of a career in American government regardless of socio-economic stratum of origin. Such should be a coextensive definition of human rights under governing international law.

 

In creating and administering the three branches of our representative democracy in America, how do we determine the value of guaranteeing democracy itself, the value of the attorney work product of governing officials and of attorneys and judges?  Their work tasks are deemed entrusted to them by the people and deemed to be of inestimable value, for their tasks guarantee to every citizen freedom, liberty and justice.

 

Yet, how do we compensate governing judges and officials so that those who write, administer and interpret our laws may be those for whom doing so is within the “American dream,” regardless of socio-economic stratum of origin? All in government are held in proper honor and esteem for the values they hold dear and that they guarantee? Is a mere civil servant, governor, assemblyman, state judge, and the work they produce for the community less important than that of the president, senator, congressman, federal judge or agency secretary? How do we imbue citizens with patriotism and love of county when the salaries of their governing members are exceeded by those of professional sports team players, though the players express thoughts and values publicly protected by these governmental actors every day? How will the next Justice of the U.S. Supreme Court “make ends meet?”

Lori Gayle Nuckolls, Esq.

Philosophy, Law and Politics

Law Is Our Only Legally Required Social Didactic

Do we only garner community support and respect when we firmly plant our feet in the soil, or, in our concrete of modern times, and discuss our world from top to bottom. Those concerns of science are most significant and are necessary to our daily, quotidian existence. They are on top and are accorded a greater priority than those related to aesthetics and art. We respect our civilized lives, culture and government, as our governments have arisen from more, primitive versions of written governing documents: federal, state and local. We defend the rights and privileges our democratic republic grants and pledges to ensure to citizens and, in some cases, residents not yet citizens.

Every citizen, and those not yet citizens, in America, possess details that give rise to abstractions as attributes of personhood. Our American soil and modern concrete imparts into our indicia of personhood, and synergizes within our American populace and guests, a refinement of our civilization.

Americans will refine society until achieving natural extinction of our planet. America’s continuing writing of its history, and the contributions of its history makers, will share within the pages. In learning how to make and share history, we must explain the puzzles as we solve them. We mature within the course of both our history and our future, and the varied social institutions. More importantly, we must explain our popular lawmaking, both within the formal, authorized bodies of government, as well as lawmaking through the informal popular influence of citizens and residents.

Each law in America is an historical fact, from our legislatures as statute, and as common law and law at equity from state and federal judiciaries. (See, Maine, Henry Sumner. Ancient Law: Its Connection with the Early History of Society, and Its Relation to Modern Ideas, Chap. IX.)  As the history and nation grows and refines, commerce advances, and our world increasingly becomes more complex as do the contracts governing transactions. Legislatures enact and reform statutes. Governmental agencies study and regulate specialized subject maters. Our courts define words, review state action and rule upon issues of law and fact.

The communities we live in grow to more and more contain aesthetics, literary attributes, sciences, and technologies. Our laws increase to permit our use, and our continued revision of our laws permit their continued use. Most of our new laws arise from contracts between two or more parties. Contracts impart principles of fair and honest dealing, which Judges — elected and appointed — review and interpret, with justice and fairness to the parties, the legal community and society. The contracts increase in complexity and sophistication.

Generationally, each of us, as did our predecessors and as will our future descendants, gleans a sense of self. This sense of individual, personal morality exists distinct from our popular majority’s collective value system we voluntarily self-impose. (See, Twain, Mark. The Adventures of Huckleberry Finn, Chap. I.) All the laws of the community, as well as the values embodied within us, create a sacredness we and government respect. (See, Maine, Henry Sumner. Ancient Law: Its Connection with the Early History of Society, and Its Relation to Modern Ideas, Chap. IX.)

In the words of my father, Charles Butler Nuckolls, Jr., a retired history teacher: “patriotism is a love of country not for what it is, but for what it is able to become.” Our personal and collective morality, and the laws arising from them, are to be revised and remedied if we are to be properly accorded respect thereunder.

Lori Gayle Nuckolls, Esq.

 

Philosophy, Law and Politics

How Do Federally Funded Entities Provide for the Family Planning of Minors and Vulnerable Adult Populations?

The Comments Letter below was Submitted Today Regarding  Proposed Rulemaking  by the U.S. Department of Health and Human Services.

 

Lori Gayle Nuckolls, Esq.

July 22, 2018

Office of the Assistant Secretary for Health

Office of Population Affairs

Attention: Family Planning

U.S. Department of Health and Human Services

Hubert H. Humphrey Building, Room 716G

200 Independence Avenue, S.W.

Washington, D.C. 20201

Via Electronic Submission to: www.regulations.gov                                                        

                         Re: Docket No.: HHS-OS-2018-0008 (“Family Planning”)

Dear Assistant Secretary,

            I write with interest in the proposed amendment of 42 C.F.R. Part 59, and, specifically, the promulgation of regulations, to be codified at 42 C.F.R. § 59.17, by the Department of Health and Human Services (“HHS” or, alternatively, the “Department”). The proposed rules concern current agency restrictions upon funding pursuant to 42 U.S.C §§300-300a-6, originally enacted in 1970 as the Public Health Service Act (P.L. 91-572) (the “PHS Act” or the “Act”).  Please consider this letter formal comments upon this proposed rule in response to the Department’s notice of proposed rulemaking and request for comments, as published in the Federal Register, on June 1, 2018. (83 Fed. Reg. 25502-25533). I support this proposed rule, in part, and I believe it achieves the primary objectives of the Act, “to support preventive family planning services, population research, infertility services and other related medical, information, and educational activities.” (H.R. Rep. No 91-1667, at 8-9 (1970) (Conf. Rep.) (as quoted in 83 Fed. Reg. at 25502).

            The Department envisions that proposed new rule 42 C.F.R. §59.17 will aid in the achievement of the expressed statutory purpose in the new rule’s implementation of a requirement that entities receiving funding for the authorized purpose, both public and private not-for-profit, duly comply with all applicable State and Local laws requiring notification or reporting of sex crimes against both minor and adult clients. See, Consolidated Appropriations Act, 2018, P.L. 115-141, Div. H, sec. 208, 132 Stat. 348, 736 (2018) (83 Fed. Reg. at 25519-25520). In providing this protection to both minors and vulnerable adult populations, the proposed rule imposes an ongoing obligation upon funded family planning counselors to “comply with all State and local laws requiring notification or reporting of child abuse, child molestation, sexual abuse, rape, incest, intimate partner violence or human trafficking (collectively, ‘State notification laws’),” regardless of the age of the client. (to be codified as 42 C.F.R. §59.17(a)).

          Under the proposed rule, each funded entity would reconcile this broader purpose with its prefunding certification attestation as to compliance with a further duty that it: “encourages family participation in the decision of minors to seek family planning services.” Consolidated Appropriations Act, 2018, Public Law 115-141, Div. H, sec. 207, 132 Stat. 348, 736 (2018)(quoted in 83  Fed. Reg. at 25503). This narrower duty also requires that it “provides counseling to minors on how to resist attempts to coerce minors into engaging in sexual activities.” Id. And, as previously stated, in doing the foregoing “no provider of services … shall be exempt from any State law requiring notification or the reporting of child abuse, child molestation, sexual abuse, rape, or incest.” Consolidated Appropriations Act, 2018, Public Law 115-141, Div. H, sec. 208, 132 Stat. 348, 736 (2018) (as quoted at 83 Fed. Reg. 25503).

              Apart from the regulatory provisions setting forth the type of family planning counseling funded under the proposed amendment of 42 C.F.R. Part 59, the Department should consider that the concern intended to be met by this amendment envisions that certain adults and certain unemancipated minors are residents within compromised households and relationships. They are without full exercise of their legal privilege and right of self-governance, and, as presumed by the current and proposed regulations, live without legal recourse. Most importantly, many in a compromised living situation, act improperly and contrary to criminal law prior to becoming the victim envisioned by the proposed rule.  They engage in what is properly denominated criminal conduct when acting in self-defense so that they do not, if able, become the type of victim this proposed rule seeks to aid. In remedy, perhaps the Department should impose upon funding receipts a similar requirement to report all instances of general criminal conduct within the family unit or relationship, as to all adults and all children, even if the possible misconduct is not related to acts of sexual abuse.

          In the explanation of the proposed rule, the Department acknowledges that funded family service providers at times do not inquire as to the age of the child or teenager receiving services, for maintaining confidentiality encourages young people to seek counseling. (83 Fed. Reg. 25520). Similarly, compromised adults and children might not disclose problems of nonsexually related criminal conduct. Yet, compromised individuals develop an unfounded sense of personal shame and self-blame, even when they are not those who act in self-defense before services are needed.

         Perhaps, in remedy, the Department should require funded providers to not only notify or report as to the possibly victimized client to whom services are provided. But, providers should, as well, notify or report to State and Local governments all suspected criminal offenses, committed by minors as well as adults, of which a provider becomes aware in assessing the needs and living situations of their client. Specifically, in addition to reporting putatively criminal  facts  learned of when counseling vulnerable adults, the funded entity would notify or report as to all possible criminal activity of which it becomes aware when complying with the provider’s obligation under the new rule “to conduct a preliminary screening of any [minor under the legal age of consent] who presents with a sexually transmitted disease (STD), pregnancy, or any suspicion of abuse, in order to rule out victimization of a minor.” (to be codified as 42 C.F.R. 59.17(b)(1)(iv).

         In summary, proposed new rule 42 C.F.R.  §59.17 provides, as intended, that “minors and vulnerable populations” within the United States are protected by requiring family planning providers to comply with State and Local laws as to possible abuse. Yet, the providers might also include within their mandatory reporting all possible criminal offenders learned of in the course of providing counseling to both minors and adults, even if the activity does not constitute sexual abuse.  Children, their parents, as well as adults and their families, alike, should benefit fully from guidance made possible with authorized Federal funds, to the extent of present law. With adequate legal monitoring, through notice and reporting, adults, children and their family members may not, not disclose, fully, the factual circumstances resulting in their compromised living situation. For, such difficulty is often a result of criminal activity that proceeds sexual abuse. Only, with adequate disclosure, discussion and remedy will Federally funded family planning guidance be effective.

          The Department’s amendment of 42 C.F.R. Part 59 places the burden of compliance upon the funded provider which must possess adequate procedures for meeting the requirements of relevant State and Local law as a precondition of funding approval. And, this achieves the Department’s purpose of providing for minors and vulnerable populations upon whom the burden would never lie. Perhaps, the Department need only expand this protection to require funded family counselors to apprize State and Local governing officials of all suspected criminal activity within personal relationships, to the extent permitted or required by law.

          I thank you greatly for considering my comments on this rule. And, I may certainly be contacted as indicated above.

Sincerely,

Lori G. Nuckolls

Lori G. Nuckolls

Philosophy, Law and Politics

Greenspace and Culture for All!

The Cincinnati park of Burnet Woods is a wonderful asset of the Cincinnati community, and has been so since first begun in 1872. And, our community is obligated to both maintain and transition this park into a modern greenspace. Cincinnatians and learned science professionals, together, should discuss and decide the proper changes to Burnet Woods and Cincinnati’s greenspaces, generally. The current proposal for two community center buildings in Burnet Woods brings to popular discussion an issue not yet mentioned that is less related to concerns of environmental preservation. Specifically, the proposal to place a building within Burnet Woods that would essentially serve the current purposes of the Clifton Cultural Arts Center asks questions about equal planning for our various neighborhoods in Cincinnati.

Currently, the Clifton center provides cultural events and educational resources to those beyond the neighborhood of Clifton. Many young and old within Cincinnati would like to continue to rely upon the center. And, its location in Burnet Woods would have to be generally accessible by car and school bus. For, it is unlikely that it would be as currently within reach of those visiting by foot from nearby.  But, more importantly, the center would place on public land a resource generally needed, yet unavailable, in most neighborhoods. The Clifton center arose from the needs and requests of one Cincinnati neighborhood. And, it has ably done so. Yet, a similar cultural resource has been long discussed and requested by many neighborhoods similarly in need, including the neighborhood of Ohio Representative Alicia Reece, namely Bond Hill.

Most neighborhoods would not be provided for by the arts center proposed for Burnet Woods. Before the Burnet Woods center is approved, we have an obligation to discuss providing access to cultural arts equally within the city. It is unlikely and unwise that each neighborhood community requesting such a center could request a similar grant of land to do so by the Cincinnati Park Board. The Burnet Woods proposal is not properly precedent, or ratio decidendi.

The discussion of providing beyond the neighborhood recreation centers is a difficult one, and neighborhoods such as Bond Hill have long puzzled the question of transitioning an aged commercial business district for modern use. A small cultural center was proposed for an area near the intersection of Reading Road and California Avenue. It would have been similar to the current centers in Kennedy Heights and Pleasant Ridge. Perhaps it, alone, would not have completely sufficed. Yet when does capitalism not permit trial and error of not-for-profit ventures as for our for-profit, start-up entrepreneurial ones. Essentially, the Burnet Woods center only initiates review and discussion obligatorily within the purview of our discussion of fair and equal neighborhood planning.

For our neighborhoods stymied as to a beginning, even a small urban gardening space, such as one upon a space near the proposed cultural center in Bond Hill, would begin discussion with a venture not requiring a permanent decision or commitment, and which, even if only short term, would ameliorate an available space.

Lori Gayle Nuckolls, Esq.