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.

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.

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.

The first change began when AAA started viewing its continuing education of arbitrators as a profit or income center. In out of the way places like Oklahoma, the AAA soon had no local arbitrators because the number of AAA cases in Oklahoma did not provide enough arbitrator employment to offset the high cost of AAA continuing education fees.

The next change came about when AAA stopped viewing service as an arbitrator as public service and began promoting it as just another form of hourly consulting practice. Hourly rates for most AAA arbitrators rocketed from the rates associated with non-profit work to the highest commercial hourly rates, typically for legal work, offered in a region. Also, this fit in with the first change because the charges for continuing education of arbitrators could then be justified to arbitrators allowed to charge, if not encouraged to charge, their highest hourly rates.

Thus, in out of the way places like Oklahoma, where AAA has no office, and probably has never had an office, and now has to local panel of arbitrators, arbitrators must be imported. The result is that the travel costs are now a significant cost burden on the arbitration.

The result of all of this is that to hear a relatively routine commercial dispute in Oklahoma, the AAA will want to bill and collect $100,000 in fees and expenses for itself, the fees of a trio of arbitrators, and their travel costs. Even with any resources the AAA can muster as a non-profit forum, the AAA can only moderate the fees and expenses to the $75,000 range.

These fees and expenses, of course, are sought by the AAA for routine commercial disputes. This means that claims with a risk of recovery as high as 30% or 40% (the likelihood of a zero or an award less than the expenses) should not be brought in the AAA. Because handicapping outcomes in jury trials, arbitrations, and horse races bear so much uncertainty, AAA claims probably cannot be handled on a reduced hourly, partial contingency or full contingency basis. They cannot be handled on a contingency basis in which counsel advances the AAA fees and expenses. Clients that cannot pay $40,000 to $50,000 for arbitrator expenses and bear the risk of loss, too, have to stay out of AAA. Clients that, in addition to the arbitrator fees and expenses, must also pay the costs of full blown court-type discovery many of these panels authorize (depositions, document production, expert witness fees) will quickly be frozen out of the system. Indeed, it may be that the AAA, in seeking its own economic goals, has decided that B2B litigation, where the commercial entities can afford to spend hundreds of thousands of dollars on dispute resolution, are its “market” of choice.

The original premise of the US Supreme Court in authorizing mandatory arbitration clauses, came about when Wilko v Swan, 346 US 427 (1953) was overruled in a triad of cases that included Rodriguez de Quijas v Shearson / American Express, Inc., 490 US 477 (1989). The premise was that the safeguards available in modern arbitration now permitted deference to arbitration as a dispute resolution method outside of court process.

It might be better for parties to challenge in court mandatory arbitration clauses in some circumstances. For example, a mandatory arbitration clause in an older contract that mandated AAA as a forum could not have anticipated the $100,000 arbitration model that is now prevalent. Indeed, the $100,000 arbitration model for any but the largest commercial entities, might be unconscionable. In any event, the $100,000 arbitration model has ended the chief advantage in arbitration, cost-efficiency.

While this type of program might be better than no advice at all, and it might be better than searching Schwab’s or Fidelity’s website for user friendly advice, it is hard to see how it would compare favorably to the services of RIAs, brokers or CPAs. Admittedly, finding a qualified RIA, broker or CPA is not an easy chore.

Sitting in a room with a human the demeanor of whom you can evaluate along with an evaluation of their advice is something you cannot do with a website. As wonderful as the web is, it is artificial and regardless of the simulation, it is not yet intelligent. Risk assessment, the core value of financial advice, is sometimes as much a product of experience as it is knowledge.

The essential flaw in the advice of many RIAs, brokers and market predicting CPAs is usually inadequate risk analysis. The opportunity to remotely track money managers and copy their trades does not actually address this deficit, but merely wishes it away. It also assumes that the internet window is sufficiently transparent to permit assessment of character and philosophy without interpersonal contact.

But, somehow the case got into federal court in California. The federal court dismissed the case with leave to amend the Complaint, a “do over,” in technical terms. The seven page opinion was like a walk down memory lane for me. For Mr. Anthony, it was no doubt bewildering.

When I started practicing law, we were still filing and arguing demurrers to petitions. Demurrers to petitions were pleadings that argued that the petition did not state a cause of action either because it failed to plead sufficient facts or because it failed to plead facts that under applicable law constituted an actionable wrong. Demurrers to petitions were abolished when notice pleadings was adopted. So, too, were gone the weekly trips to the courthouse to argue demurrers to petitions.

But, Mr. Anthony has managed to make a seven page opinion in effect granting a demurrer to a petition (the federal court term is “complaint” but they are essentially the same in modern practice) a national headline. Will judges all over America go to work microscopically analyzing complaints (or petitions removed from state court)?

It will occur only if the judges were not around during the demurrer era. Some judges liked the tedium and the gatekeeper role, but most found that it detracted from their real work, deciding cases, and buried them in poorly developed or untested facts and legal theories. Also, some wrongs cannot be articulated with the precision required in court until after considerable discovery. Wrongdoers and confusion usually are bedfellows, even if inadvertently so. Judges are usually keenly aware of this.

For non-lawyers and non-judges, if the goal is to “clean up” the courthouse and deter frivolous lawsuits, raising the filing fees will do more. The real problem, if there is one, is that as a society we spend less than 1% of governmental revenues on the court system, a historical fact that has not changed in a life time. With better funded courts and more judges, especially on the state trial level, judges would have no trouble managing the system.

The purpose of hedging governmental employment with due process rights is to prevent jobs from being used as patronage every time the political winds shift. On a university campus, such rights are often needed to protect free speech.

Indeed, in my law practice, I have been engaged to coach professors through various types of employment disputes without resorting to litigation. I have to admit that a warring faculty is a pretty cutthroat group to be among. It would probably take a sociologist rather than a trial lawyer to explain it, but I have seen it often enough to be impressed by it.

Along came the North Carolina Court of Appeals in Leonard Bernold v Board of Governors of the University of North Carolina, which affirmed the lower court and Board of Governors decision to terminate a professor on the grounds of “lack of collegiality.”

I cannot imagine a more subjective basis for termination, short of taking a vote among a faculty to determine if a professor was “liked” or “disliked.” For this reason, I cannot imagine that such a basis for termination actually comports with the protections one thought would have been enshrined in due process rights. It should be noted that the lack of collegiality charge was dressed up with the allegation that it was disruptive to the faculty and had gone on for three out of five prior employment years. But, “disruptive” is hardly less subjective. That it had gone on for awhile does not seem to alter the subjective nature of the charge.

There had been a full hearing and assuming there was a transcript, so it seems logical to conclude the court opinion simply left out the “juicy” tidbits that might make the subjective into the objective, or at least more substantive. But, more likely, this is the direction we are headed with due process rights. We are, in fact, abolishing them by demoting them to the level of mere feelings.

[Hat tip to Professor Ross Runkel.]

It once again amazes me that a college football player, a college kid, not an NFL player, can be treated this way. It also amazes me that it is news flashed across the planet rather than merely a line item in a campus newspaper.

I wonder if the football coach, an employee of a state institution, realizes he is a state actor and may have violated the civil rights to free speech of a citizen commenting on the way in which this government employee, the football coach, attended to his duties? While a high school football coach might be able to squash the free speech rights of a minor in a public high school under the rubric of preserving the peace at the school, that should not be available to a college football coach employed by a taxpayer funded state institution.

Nobody can reign in a sitting head football coach at a division 1 NCAA school in the Big Twelve with no worse than a 50% record and so much television revenue yet to collect for the year, so this is all academic.

Even the explanation by FINRA of what these products are lacks clarity for the people FINRA is trying to warn. Of even more concern, however, is that these products, FINRA believes, are especially apt to act erratically in volatile markets.

FINRA’s explanation of these products contains nicknames like “short funds” and “ultra short funds,” as if the investor reading the alert that did not understand the more formal name might get something out of the less formal. Of course, FINRA has to start somewhere, and the name is the most logical place to start. But, what else is the investor likely to get beyond the names? Will the investor really understand the nature of these products and their real risks?

These products should probably be classified by FINRA for suitability purposes as “speculative,” if FINRA’s warning is to have any real meaning. That would go a long way toward diverting them from the unsophisticated. FINRA could also declare them unsuitable for retirement accounts. FINRA could also preclude margin account purchases of these products, or limit margin account purchases to margin accounts with an actual marked to market value exceeding one million dollars.

Unless FINRA begins these types of protective rule implementations, FINRA will always be regulating after the losses instead of preventing them.