Terra Extraneus

It always amazes me how unhelpful the software sites of manufacturers truly are. I was forced to upgrade to Windows 7 by an accumulation of errors in XP until my choices were only either reinstall XP or install 7. I chose the latter.

Yes, I own an Apple Lap Top, so I already know there is at least one alternative to Windows. But, my desktop computer still has plenty of life and the weakened economy does not seem to have depressed prices at Apple. So, once again I decided to wander through the unholy land of software installation.

The replacement of XP by Windows 7 was extremely time consuming and fatiguing. This was mostly true because of the riddles wrapped in enigmas that exist for online and other help. The people that provide most of this written help work in the field and often do by instinct rather than thought, and thus do not explain in the articles many of the things they take for granted. Those of us who are forced to actually fix these things only every few years, however, are clueless about some of these preparatory steps.

For example, only after reading article after article both on the open internet and on the Microsoft web sites does the process for transferring .pst files from a back up drive to Outlook, once again safely nestled in Windows 7, become doable.

First, of course, figure out where Outlook keeps its files in your old XP installation and back them up. Back up everything in sight and then check and make sure hidden files are copied as well. Do not stop until these files are safely copied onto a UBS external hard drive or a disk. Just finding these files can be a challenge if you fail to do so early. I had to use an Outlook file recovery program I had left over from a past problem just to relocate them.

Once you have installed Outlook successfully, the import file pull down menu in Outlook will drive you insane unless you do more work on the .pst files you copied in the step above. For, in Windows 7, there are many little quirks, and there may be some in XP that I had long forgotten.

These steps include weird things like making hidden files visible, and making sure “permissions” line up. The .pst files themselves must have the correct permissions engrafted into their very being. How to do all of these steps are easily explained in articles freely available, but the problem is that Outlook does not in the import pull down menu mention any of them and the articles on importing .pst files into Outlook rarely mention these necessary steps either.

In the upgrade to Windows 7, one other thing caught me. My sound card stopped working. My sound card was not easily identified either on the computer using its system information or looking at the drivers. Just before opening the case and looking directly at the card, I noted that the latest available driver for my card was last amended by the card manufacturer while Windows 7 was still in beta. There was no driver available from the time that Windows 7 went public in the fourth quarter of 2009 or after, even though Dell’s diagnostics swore up and down the computer was completely compatible with Windows 7. Maybe an IT professional could make it work. But, I opted to invest $100 in a new sound card that presumably has a later driver.

The moral of the story could be “buy Apple.” It could be “never give up.” It could be “hire someone to do it.” For me, once again, I have defeated the dastardly plot of Microsoft.

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In Raymond James Financial v Bishop, the United States Court of Appeals for the 4th Circuit affirmed a district court judgment vacating an arbitration award. While the 4th Circuit opinion depicted the arbitration award as “incoherent,” the 4th Circuit’s opinion was little better. However, that the 4th Circuit was willing to act as it did seems to be yet another harbinger of death for arbitration.

This particular arbitration award was issued by a FINRA arbitration panel in 2006 and Raymond James moved to vacate it in 2007. Thus, because this was a case involving only industry members and associated persons, at that time we should be right that the panel was an industry panel. The 4th Circuit, however, does not address it. That would matter because that would likely mean there was no lawyer on the panel, or only a lawyer that had never practiced. Without a lawyer to guide them, an industry panel would not likely be able to draft anything satisfying to a federal court.

The composition of the panel would be important to know because the trial court, the federal district court, remanded the arbitration award to the FINRA arbitration panel for clarification. The 4th Circuit opinion is unclear whether the award was a standard award or whether it contained any reasons for decision. But, it seems almost certain the award did not contain any findings of fact or conclusions of law. Thus, a remand for clarification was not likely to garner clarity. The 4th Circuit opinion does not address whether the panel was asked by anyone to enter formal findings of fact and law or whether the panel refused.

While the 4th Circuit noted that the arbitration panel did not have a duty to clarify the award, most arbitration panels would not refuse to respond to a remand from a federal court. An industry panel might not realize that the better response would have been a polite refusal to clarify a standard award, because a standard award does not contain findings of fact or conclusions of law. Indeed, two letters of clarification later, the federal court was still depicting the arbitration award as “inscrutable.” The federal trial court did not seem to like the arbitration panel’s description of the legal basis for the award. The federal trial court also did not find any articulation of the causal link between the liability finding and the damages awarded. How could the federal expect to find either in the brief comments of an industry panel that likely did not include a lawyer and in the absence of formal findings of fact and law?

It should also be noted that the authorities relied upon by the 4th Circuit were often from the era of Wilco v Swan, and not from the era beginning with Shearson/American Express, Inc. v McMahon. In other words, much of this opinion comes from the era when courts expressed disdain for arbitration.

The 4th Circuit, however, by holding a standard FINRA award to a review standard that a jury verdict form could never meet, clearly expressed its hostility to arbitration, a court emotion that was supposed to be obsolete.

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The Death Penalty Information Center, a group opposed to the death penalty, issued their year end 2009 report at deathpenaltyinfo.org. It indicated a decline in the number of executions during the decade just concluded with an up tick in 2009.

The startling thing to me about this report is the assertion that there are on average about three people exonerated from their convictions per year in death penalty cases and as many as five per year in the decade just concluded. This seems startling given the resources used to make sure that the death penalty is used only in response to heinous crimes and imposed on only the guilty.

On the other hand, there is no branch of government as starved for resources as the court system. That includes the resources committed to defense of an accused as well as prosecution. Overloaded systems and people make mistakes. Thus, the moral and policy issues surrounding the death penalty may not be the real or important issues. The real issue may be technical. Do we have the resources to manage death penalty cases from arrest to execution and remain true to our sense of justice?

Fifteen states no longer have the death penalty, according to the report, with New Mexico being the newest member of that club. I have to wonder at the politics of that. What political forces would have to exist to bring about the end of the death penalty? I also have to wonder, if political forces can align to bring about the end of the death penalty, why can’t political forces align to bring about the end of abortion?

Of course, as a society, we cannot agree to give up our paper dollar bills in favor of dollar coins, so seeking agreement on weightier issues is nearly a form of extremism.

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