back to school, ccsd, nevada, esa, children, teacher

Everything You Need to Know Before the Kids Go Back to School

In this episode, we will update you on how the Education Savings Accounts are coming along1)could be better, and then provide a one stop directory for everything you need before the kidlets go back to school. If you would like to read more about the updated Nevada Bullying law, we have you covered.

 

Back to School and the New Education Savings Accounts

21 August, the state treasurer held a meeting to discuss the radical new education law passed by the legislature in the 2015 session. Check out the link to get our full analysis of the law. In particular, the questions proposed at the end of the piece have still not been answered. What happens to the rest of the students attending struggling schools in Nevada when more kids (and the subsequent funding) are taken out? Will the struggling schools have to make due with even less resources? Why not take the money/effort/resources being used to help kids leave the public schools and hire more teachers? If you have not tried to teach a class of more than 40 kids2)I sure have, it is quite difficult, even with public speaking experience. Without lowering classroom size, almost nothing else will matter3)in my humble opinion.

I digress. Let us see how the ESA meeting went. Neal Morton did a real nice job covering the event for “the newspaper”4)as Mr. Ralston puts it, as did the Nevada Succeeds twitter account. I will post tweets from the meeting of 21 August so you can get a feel for how it went:

https://twitter.com/StudentsFirstNV/status/634772569963560960

 

Breaking: Attempting to drastically reform the school system in 3 months may not be possible5)my Drudge siren is broken, or it would be adjacent to this headline. Allow me to clarify, it is possible to do, but probably not possible to do well.

I keep seeing the proponents of the bill cite how many people signed up for it so far, 2200 from the last citation. How many students does the Clark County School District have6)#RonDarlingesqRhetoricalQuestion? Try more than 318,000. For those scoring at home, .69% of the students have signed up.

Let us say that the program is a big hit, and doubles the participation so far. Was all this time/effort/money to implement this program worth it? Before you answer, consider also that money spent on public schools will be taken away to pay tuition7)and other costs for these students. Consider also that the money spent on public education cannot be proportionally deducted from the students that remain. For example, if there is not a sufficient amount to pay for a teacher, computer, text book, we cannot buy 3/4s of a teacher, 1/2 a text book, etc. We have to be able to pay for the entire expenditure, or it will not be paid for.

Again, we are talking about harming 99% of the school district’s children so that 1% will be better off. Fair? Best use of the legislature/governor’s time?

The school district has put the application for the ESAs online, which you may see here. Remember, the bill does not go into effect until 2016, so you will not be getting any money until then.

 

More good, back to school information

With our economy still in recovery, we all know how tough it can be to get the work schedule to line up with when the kids get out of school. Safekey is a free program that will supervise your kids until you get off of work.

http://cityoflasvegas.tumblr.com/post/126341349263/not-too-late-to-register-for-safekey

 

The Clark County School District Superintendent penned an article for the Las Vegas Sun that he discusses many of the new, exciting programs coming to the school district this year. An interesting/pretty great concept he included:

Ready by third grade

Third grade is a critical point in our students’ education. Our students must be proficient in reading and writing by the end of third grade. Beginning in fourth grade a child makes the transition from learning to read to reading to learn. Dedicated funds from the Legislature will allow us to implement additional programs that focus on literacy and ensure our students don’t fall behind.

 

If you need information on school vaccinations, you can get it here. Note that usually vaccinations are done Monday to Friday, but an exception has been made for Saturday, 22 August.

On Saturday, Aug. 22, a special back-to-school immunization clinic is scheduled at the health district’s main facility, 330 S. Valley View from 9 a.m. – 1 p.m.

 

PBS produced a special with even more back to school information that you can watch here.

Clark County School District has a website with almost any other additional information you may need for all the back to school drama.

 

Back to school is not just for the kids!

Look at this neat program offered by Clark County! We love civics, and so will you!

The kids will have a tough time complaining about homework if you are doing it as well.

 

A little humor before you go…

No one covers back to school quite like The Onion.

 

Have a great school year everyone!

 

Footnotes   [ + ]

1. could be better
2. I sure have
3. in my humble opinion
4. as Mr. Ralston puts it
5. my Drudge siren is broken, or it would be adjacent to this headline
6. #RonDarlingesqRhetoricalQuestion
7. and other costs
politics, hillary, trump, bernie, o'malley, las vegas, nevada, rubio

Your Weekend Politics Round-up! And You Thought This Nonsense Couldn’t Get Any Funnier…

There is not anything of substance to learn about the candidates with the election more than 400 days away, but there is plenty to laugh at! Enjoy.

 

We obviously have to start with a Trump heading

Oh, where to begin with Mr. Trump this week. What if I told you the front runner for the Republican nomination believes that the 14th Amendment is unconstitutional? (Wait for it) Still confused? Good. Seven minutes of Bill O’ and the Donald should clear up any ambiguities1)Please do not feel obligated to watch all of this, save your sanity

 

 

Well, I am sure that after Mr. Trump is elected, and appoints “America’s lawyer,” Michael “you can’t rape your wife” Cohen as Attorney General, then finally, the question of which amendments to the constitutional are actually constitutional will finally be resolved.

Next, Tonyaa Weathersbee of The Root wrote the piece I have been waiting for, with regards to your friend Mr. Trump: “Is Donald Trump vying to become the next George Wallace?” As far as I know2)these campaigns were a bit before my time Perot and Forbes did not traffic mostly in racial fear/animosity to try to gain popular support. Mr. Wallace, on the other hand, did just that. Ms. Weathersbee has more:

And like Wallace—who, after losing his first race for governor in 1958 to an opponent who had the backing of the Ku Klux Klan, vowed, “No other son of a bitch will ever out-n–ger me again”—Trump is apparently taking no chances on being “out-illegaled” by his Republican opponents in the presidential campaign.

 

Stoking prejudice for political gain is nothing new in American politics, unfortunately. The target of the attacks just seem to change over time. Who knows, 50 years from now, if you project our demographic changes, a candidate may be running for office talking about how white people are the cause of everything that is wrong with America.

When some racism gets you to the top of the polls, why not try out a little more? Diminishing marginal returns do not seem to apply to Mr. Trump’s racial antagonism. Buzzfeed transcribed how Mr. Trump plans on dealing with gang violence3)a very serious issue in our cities, certainly a topic worthy of discussion by the Presidential candidates as explained during a radio interview Thursday:

“You know, a lot of the gangs that you see — this doesn’t hopefully pertain to you guys so much — when you look at Baltimore, when you look at Chicago, and Ferguson a lot of these areas,” Trump said on FM Talk 1065AM on Thursday. “You know, a lot of these gang members are illegal immigrants. They’re gonna be gone. We’re gonna get them out so fast, out of this country. So fast.”

 

“So fast.” Heh.

Lastly, this interview with Mr. Trump in the Hollywood Reporter is a true entertainment. I have never read a print interview where I had no idea how the interviewee would respond to the inquiries. I will give you a little taste in case you do not believe me:

You’re getting a ton of criticism. Does any of it actually ring true?

People say, “He won’t apologize for anything” — well, I was right on illegal immigration. [John] McCain blew it because he’s done a poor job of taking care of the veterans. And then the third element so far, you had Megyn Kelly, and I think you’ve seen what happened with that. I feel quite confident in my position. At the same time, I believe in apologizing. But to apologize for me is very difficult. I definitely would apologize if I were wrong on something.

What was the last thing you apologized for?

It was too many years ago to remember. I have one of the great memories of all time, but it was too long ago.

 

Mr. Trump’s media doppelganger is blaming us, the people(???) for the Trump phenomenon.

No one is making you discuss Mr. Trump. Feel free to stop at anytime4)both talking Trump and going on air, thanks.

In case you were wondering, Mr. Trump is holding a “pep rally” in Alabama this weekend. No word if any kin of Mr. Wallace will be there.

 

I suppose we have some time for our Democratic friends as well

Secretary Clinton previously met backstage with Black Lives Matter activists in New Hampshire. This week, the video leaked. It left me with that wide-eyed ‘deer in the headlights’ type look. Mr. Wilmore, whose Nightly Show looks like it will be a big hit, broke down the leaked footage with the help of a couple of corespondents:

If you watch the entire episode, Mr. Wilmore speaks with two of the activists in the videos that confront Hillary Clinton. I felt like I had a better5)not complete understanding of the BLM movement after watching.

Next, “The greatest political reporter in the history of Nevada,”6)definitely not my quote, though he is competent, sure Jon Ralston was on The Rachel Maddow show to discuss Gov. Martin O’Malley’s press conference held in front of the Trump Hotel here in Las Vegas on 19 August.

I attended7)unlike Mr. Ralston the strange press event, held on a traffic median8)have to say it was the first press conference I have ever been to on a traffic median between the Trump Hotel and the Fashion Show Mall. The only knowledge I had of Gov. O’Malley is from what I learned from the scathing critique of his politics as portrayed by David Simon in The Wire. I have to say, honestly, I was impressed by him. He spoke very well (unfortunately uncommon these days with our political figures), and he went after Hillary in a way no other Democrat has. For example, when asked about her position on the detention of undocumented children, Gov. O’Malley commented “she has changed her position 4 or 5 times; at least it shows she has been thinking about the issue.”

Gov. O’Malley has been highly critical of the Democratic National Committee for scheduling only six debates (in 2008 there were more than 25); Sen. Sanders has as well, but not nearly at the volume of Mr. O’Malley. It is not surprising given that Gov. O’Malley is between 2-4% in the polls, and Mr. Carson and Ms. Fiorina received a significant bump after strong performances on the Fox News debate. The public does not seem to desire more debates (now if they had a celebrity debater, maybe the score would change…perhaps Gov. O’Malley should attempt to push Kanye West into the race), which led the Governor to quip in San Francisco:

Hitting cleanup for the dems, fake candidate Larry Lessig9)who? Exactly., who thinks that by teaching at Harvard should entitle him to the office of the Presidency, posted an online poll to determine his VP:

I think a Lessig/Trump ticket would be unstoppable. Until they had to be in the same room with one another.

 

In case all this politics wasn’t fun enough

We have reached the closing, comedy section our our politics grab-bag of sorts. First10)a hat tip to friend of the blog, Ben Jacobs of The Guardian, from the Washington Free Beacon, a look into the future of what America will look like under the Trump administration.

 

Next, as promised, Mr. Rubio playing catch with an Iowa kid’s face:

One wonders how Mr. Trump would have responded to11)by that I mean, what names he would call the poor kid that incident. I think we all know that President Obama would have, somehow, caught the ball himself.

Lastly, if you do not keep up with North Carolina politics12)come on!, you may not know who is polling in 3rd place currently. Because this blog is family-friendly, I cannot even link to the story. Just know that a 15 year old Iowa teenager is playing the practical joke of a lifetime. Seriously, google this nonsense.

 

Footnotes   [ + ]

1. Please do not feel obligated to watch all of this, save your sanity
2. these campaigns were a bit before my time
3. a very serious issue in our cities, certainly a topic worthy of discussion by the Presidential candidates
4. both talking Trump and going on air, thanks
5. not complete
6. definitely not my quote, though he is competent, sure
7. unlike Mr. Ralston
8. have to say it was the first press conference I have ever been to on a traffic median
9. who? Exactly.
10. a hat tip to friend of the blog, Ben Jacobs of The Guardian
11. by that I mean, what names he would call the poor kid
12. come on!
Donald Trump, Clinton, Walker, Bush, election 2016

Donald Trump and Everything You Missed in the Weekend of Politics

Family, work, friends, fantasy football..I mean, who has the time to keep up with all the political happenings? Who would blame you for prioritizing your family with the election more than 400 days away? Lucky for you, dear reader, I quit fantasy football years ago, so I was able to allocate the time usually applied in mock drafts to keep tabs on the presidential, political goings-on. Did something happen over the weekend that you will forever regret not witnessing in real time??

Of course not. The election is more than a year away. But a few noteworthy1)by noteworthy, I mean campaign fodder that could help you look clever in your next politico-water cooler conversation events took place. And because we love our readers, we aggregated all the info you need (and perhaps a little extra).

 

Donald Trump shows Charlie Sheen what “Winning” really means

The2)The Clear Counsel Law Blog remains your go-to source for dated pop-culture references…well second to the VH1 candidates attended the Iowa State Fair this past weekend; a fun event where technocrats pretend they understand regular folks by trying to eat fried food without grimacing3)The fair seriously is a whole lot of fun, highly recommended, especially in campaign season. With a quick perusal of the news from the weekend, you will find photos of Gov. Bush, Sec. Clinton, and Donald Trump eating a pork chop on a stick. In a normal election cycle, the story would be about Gov. Walker being interrupted by union protesters as he attempted to answer questions from his soapbox, as opposed to this peculiar explanation of his hair line:

 

Per usual, Mr. Trump has no interest in ceding any free media to his fellow candiddates, so he brought his helicopter and offered free rides from the state fair parking lot to interested children.

 

To ensure that no other candidate would pick up any media coverage this weekend, Mr. Trump joined his press equivalent4)please draw what conclusions you like on Meet the Press, and it was as fabulous5)if you write politics for a living/horrible6)if you care for America’s image at home and abroad as you are assuming it was.  Luckily, Chris Cillizza7)Read the piece here, it is pretty great. (of The Fix. Follow him on Twitter at @thefix) annotated the Donald Trump/Chuck Todd conversation from Meet the Press. The written transcript is as great as the video footage. Please allow me excerpt two of my favorite exchanges. Don’t worry, the context is irrelevant.

 

CHUCK TODD:
We do have a running theme here. You believe the U.S. should– you’re okay with the U.S. being the world’s police–

DONALD TRUMP:
We should at least–

(OVERTALK)

DONALD TRUMP:
–be reimbursed–

CHUCK TODD:
–if we get paid–

DONALD TRUMP:
–by these extremely wealthy countries, yes–

CHUCK TODD:
So essentially you want–

DONALD TRUMP:
Chuck, we–

(OVERTALK)

CHUCK TODD:
It turns our–

DONALD TRUMP:
We have–

CHUCK TODD:
–military into a mercenary force.

 

Oh yes, it happened again.

 

CHUCK TODD:
I understand that. But–

DONALD TRUMP:
They moved to–

CHUCK TODD:
–Mexico–

DONALD TRUMP:
–Mexico–

CHUCK TODD:
They’re not doing–

DONALD TRUMP:
I don’t care how they’re–

CHUCK TODD:
–better.

DONALD TRUMP:
I don’t care how they’re doing as a country–

CHUCK TODD:
They’re doing worse.

DONALD TRUMP:
I’m just saying they’re killing us. Because everybody’s moving into Mexico.

CHUCK TODD:
There are people that argue NAFTA was terrible for them.

DONALD TRUMP:
Mexico is doing an unbelievable job. Mexico is taking our business. Mexico is the new China, okay? Look at the–

CHUCK TODD:
Where is the evidence of this?

DONALD TRUMP:
It’s all over the place. Chuck–

CHUCK TODD:
Their GDP is smaller–

DONALD TRUMP:
Chuck.

CHUCK TODD:
This is–

DONALD TRUMP:
They’re moving companies–

CHUCK TODD:
The peso, it is–

DONALD TRUMP:
That is true–

CHUCK TODD:
–worth less today. I mean–

DONALD TRUMP:
And you know what?

CHUCK TODD:
That’s not the sign of–

DONALD TRUMP:
And, Chuck–

CHUCK TODD:
–a strong economy.

 

So8)there is not anything I can add to the above exchanges. They are perfect, as is. you probably heard that Megyn Kelly took a previously unannounced, 2 week respite from her nightly show, upon a secret conversation between Mr. Trump and Mr. Ailes9)who runs the Fox News. Given all this negative media attention, particularly since the debate, you would think Mr. Trump’s poll numbers would be deflated?

Guess again.

Mr. Trump is blowing out the competition. At some point, we will need to try to figure out how/why this is happening. Fellow billionaire/egomaniac10)I say that with peace and love Mark Cuban stated why he feels, not only why Mr. Trump is doing so well, but why Mr. Trump is “probably the best thing to happen in politics in a long long time.”

“I don’t care what his actual positions are,” Cuban wrote. “I don’t care if he says the wrong thing. He says what’s on his mind. He gives honest answers rather than prepared answers. This is more important than anything any candidate has done in years.”

Indeed, the outspoken investor said Trump “changed the game.”

“Up until Trump announced his candidacy the conventional wisdom was that you had to be a professional politician in order to run,” Cuban continued. “You had to have a background that was politically scrubbed. In other words, smart people who didn’t live perfect lives could never run. Smart people who didn’t want their families put under the media spotlight wouldn’t run. The Donald is changing all of that. He has changed the game and for that he deserves a lot of credit.”11)source.

 

Please read that first sentence again. Has this always been true of voters? Or has something happened in our politics where a strong plurality of voters care less for political positions than supposed authenticity? We will need to put a pin in that inquiry for now.

Of course, New York City summoned Mr. Trump for jury duty today. He, obviously, did not want to take attention away from the judicial process, so he arrived early, entering quietly through a side entrance. Oh wait, that would be absurd.

https://twitter.com/ABCPolitics/status/633305371520724993/photo/1

 

Wait, are you saying we have two political parties??

As much as the lamestream media would like to pretend, the winner of the Republican nomination will not be automatically anointed President. S/he will have to run a general election campaign against the Democratic nominee12)from their stances of ‘deport all immigrants, including all children, relatives, and attenuated friends’ to promulgating that ‘vaccines cause autism’ to ‘abortion is unacceptable, even to for a 10 year old girl that was raped,’ I am not convinced the republican candidates are aware that their primary is not the final round of voting. By the way, I only made up one of those three positions. Not that I particularly care about their policy stances, but one must assume that the political machine that turned Mitt Romney into Gordon Gecko last election cycle will have a field day with these less-than-mainstream political views..

In the backdrop of Gov. Jeb13)Did you know that JEB is an acronym for John Ellis Bush?!? How did I just learn of this? He is the ATM Machine of presidential candidates! Bush’s visit to North Las Vegas last week in which “Black Lives Matter” protesters interrupted the end of his presentation, Secretary Clinton will be in North Las Vegas tomorrow (around noon). Will she be interrupted as well? Sen. Booker was in Las Vegas yesterday as a surrogate speaker for Secretary Clinton. At the event, he addressed the concerns of a few questioners regarding institutional racism, but will that be sufficient? The event opened with an one-act play, so clearly, we all missed out. Read more about it here.

The AFL-CIO hosts their convention from the Luxor/Excalibur Tuesday and Wednesday. Secretary Clinton, Gov. O’Malley, and Sen. Sanders are scheduled to speak tomorrow, Tuesday. The event is less likely to be interrupted by protesters, as not even media members are permitted to attend14)Obviously, so that they can plan their Fall affront to everything Sean Hannity finds dear.

For some reason, the only lamestream press Sen. Sanders receives regards the couple of instances his events have been interrupted by “Black Lives Matter” protesters15)asking my writer brothers and sisters to investigate why Sen. Sanders, as an independent-socialist, draws 10X (at least) the number of voters at his rallies, relative to anyone else running for president, must be too much to ask. Maybe these folks were duped into thinking there was going to be a flash-drum circle? There is no way to tell until someone actually asks the people why they arrive to see Sen. Sanders and no one else. Charles Blow wrote a nice analysis of awkwardness between Bernie supporters and the “Black Lives Matter” folks, if you desire some well-thought-out concepts on the issues, as opposed to the usual name-calling on the twitter. Also, in case you were worried, Sen. Sanders knows all about #BernieSoBlack

 

Before we go, a little political humor from Dana Gould16)Hey, not a lot of Harvard Law grads look like a character from The Munsters; Sen. Cruz should be proud!

Footnotes   [ + ]

1. by noteworthy, I mean campaign fodder that could help you look clever in your next politico-water cooler conversation
2. The Clear Counsel Law Blog remains your go-to source for dated pop-culture references…well second to the VH1
3. The fair seriously is a whole lot of fun, highly recommended, especially in campaign season
4. please draw what conclusions you like
5. if you write politics for a living
6. if you care for America’s image at home and abroad
7. Read the piece here, it is pretty great.
8. there is not anything I can add to the above exchanges. They are perfect, as is.
9. who runs the Fox News
10. I say that with peace and love
11. source
12. from their stances of ‘deport all immigrants, including all children, relatives, and attenuated friends’ to promulgating that ‘vaccines cause autism’ to ‘abortion is unacceptable, even to for a 10 year old girl that was raped,’ I am not convinced the republican candidates are aware that their primary is not the final round of voting. By the way, I only made up one of those three positions. Not that I particularly care about their policy stances, but one must assume that the political machine that turned Mitt Romney into Gordon Gecko last election cycle will have a field day with these less-than-mainstream political views.
13. Did you know that JEB is an acronym for John Ellis Bush?!? How did I just learn of this? He is the ATM Machine of presidential candidates!
14. Obviously, so that they can plan their Fall affront to everything Sean Hannity finds dear
15. asking my writer brothers and sisters to investigate why Sen. Sanders, as an independent-socialist, draws 10X (at least) the number of voters at his rallies, relative to anyone else running for president, must be too much to ask. Maybe these folks were duped into thinking there was going to be a flash-drum circle? There is no way to tell until someone actually asks the people why they arrive to see Sen. Sanders and no one else.
16. Hey, not a lot of Harvard Law grads look like a character from The Munsters; Sen. Cruz should be proud!
google alphabet series LLC

Google, Alphabet, & Your Small Business

Having billions of dollars at your disposal must be a lot of fun. For instance, you could use some of your money trying to develop a self-driving car, try to figure out how to use drones to deliver goods and merchandise to your consumers’ doorsteps, build massive barges in the middle of San Francisco Bay for who knows what reason1)Is it inappropriate to make a Fountainhead joke? Hopefully.. The point is: money may not buy happiness, but it will allow you to have some fun you probably could not have otherwise.

Google’s founders are swimming in money, figuratively speaking and maybe even literally2)who would be surprised if Google announced that one of its secret projects was the development of the first swimming pool full of $100 bills instead of water.. A mid-90s research project to build a better online search engine has ballooned into a behemoth technology company with interests as far flung as you can imagine. Google’s growth certainly presents a systemic organizational challenge in trying to develop the myriad of different products, projects, and business interests that Google has taken on.

 

Enter Alphabet, Inc.

On August 10, 2015, Google announced plans to organize a new corporation, Alphabet, Inc., to act as a parent company for not only Google, but also for many of Google’s other business interests. Why would Google need to add another layer of corporate structure to what appears to be an otherwise, well-oiled machine?

For starters, the parent company model will allow Google to remain flexible and diverse in its various business endeavors and still-under-development business projects. Presumably, Alphabet will also spin off countless other subsidiary companies under Alphabet3)A subsidiary company is a company that is owned 100% by the parent company, while the parent company is owned by individual shareholders. For instance, upon Alphabet’s organization, shareholders of Google stock will receive new Alphabet stock and Alphabet (the parent) will be owned by regular Joes like you and me. On the other hand, Google, now as a subsidiary of Alphabet, will have only one shareholder: Alphabet itself. . Each subsidiary will become its own separate business with its own officers, directors, and employees. Thus, it is assumed that the current arm of Google that is working on developing the self-driving car could be spun-off to a separate business entity (for example: Self-Driving Cars, Inc.), while the search engine aspect of the business will continue to operate under Google, Inc..

Google thrives on ingenuity and creativity. Spreading corporate governance more broadly will take advantage of the creative juices of its people who will theoretically take on more responsibility with new job titles of CEO, President, and Director of Let’s-Make-Stuff-Up-That-Would-Be-Totally-Awesome4)tm pending.

 

Even if you are not Google, an Alphabet may be for you

Similarly, separating out business interests creates a powerful asset-protection model that prevents one division of a company from dragging down the rest of the company in the event of a business disaster. For example, if Google’s wide-ranging business projects are currently doing business all under Google, Inc., then a liability that might arise when5)if a self-driving car goes rogue on the streets of San Jose and runs someone over. This could, in turn, affect business operations in the unrelated Google Translate department. Instead, with subsidiaries, Alphabet will isolate liabilities and protect other subsidiary companies from the dangers of liabilities caused by other aspects of the business.

Again, imagine that the self-driving car caused personal injury, and a fine personal injury attorney6)hopefully our hypothetical victim is lucky enough to be represented by lawyers as fine as our own Mr. Richards or Mr. Featherstone, Esqs. sued Self-Driving Cars, Inc., and won a court verdict of $5,000,000 in damages. With subsidiary companies, the injured person can look only to Self-Driving Cars, Inc., for payment of the court verdict. The injured person cannot look to Google Translate, Inc., to tap into its resources to pay the verdict because Google Translate, Inc., is treated by the law as a wholly separate legal entity that is not subject to the debts or liabilities of the other subsidiaries. This kind of asset protection allows Google to continue to innovate with speculative projects that may be more dangerous and prone to liability than you might expect from a company like Google Translate.

 

Dr. Canal is kind enough to provide us with an example

Google’s reorganization with Alphabet at its head does raise some interesting tips that even Jane Doe in Nevada could follow to her benefit. Most of us regular Nevadans do not have swimming pools full of $100 bills, nor are we investing our funds in the development of the first working time-machine, Delorean. However, many Nevadans do have varying business interests that could be protected from each other.

For example, consider your local dentist, Dr. Root Canal. Dr. Canal’s dental business actually consists of several different aspects: the practice of dentistry itself, the purchase, leasing, and use of medical equipment, and possibly the purchase and ownership of the building that the dental office is located. Thus, Dr. Canal actually has three separate business interests, all of which could be safely and legally protected from the other.

For example, imagine that Dr. Canal does a poor job on his next tooth extraction and his patient, Ayall B. Suing, sues him and his company, Root-Canals-R-Us, for dental malpractice. Dr. Canal loses the trial and the District Court for Clark County tells Dr. Canal and Root-Canals-R-Us that they must pay Mr. Suing $500,000 for his pain and suffering. Dr. Canal, unfortunately, kept all of his business interests (the dental practice, the dental equipment, and the office building) under just one umbrella: Root-Canals-R-Us. Thus, when Mr. Suing begins poking around for payment on his judgment, Mr. Suing first takes all of the business bank accounts, but he does not stop there. Next, he literally takes all of Dr. Canal’s examination chairs, the x-ray machine, and a box of promotional toothbrushes and even the dental floss to boot! Finally, Mr. Suing puts a lien against the building for the remaining amount of his judgment that was not covered by the other items he collected from Root-Canals-R-Us.

If Dr. Canal had followed Google’s lead, he would be in a much better situation. Dr. Canal could create separate business entities for each of his business interests: Root-Canals-R-Us to operate the actual dental practice; Dental Equipment, Inc., to own the dental equipment (which leases the equipment to Root-Canals-R-Us); and Dental Building, Inc., to own the dental building (which leases office space to Root-Canals-R-Us). Thus, when Mr. Suing looks for payment on his judgment against Root-Canals-R-Us, he will be limited to only that which Root-Canals-R-Us actually owns, which in this case would only be the business bank accounts (in general). Mr. Suing would not be able to swipe the examination chairs or put a lien on the building because those assets are owned by totally separate legal entities, which do not owe Mr. Suing anything.

 

Google, Alphabet, and the Series LLC in Nevada

Unlike with Alphabet, however, most Nevadans in these situations probably would not have a pressing need for a parent corporation to own separate subsidiaries because doing so for the average Nevadan unnecessarily adds another layer of corporate structure with minimal purpose. However, think again. Nevada is one of a handful of states that allows an ingenuous business entity called a Series LLC. In a Series LLC, the owner creates just one business entity with the State of Nevada, but then is allowed to create a “series” under the main LLC. Each series does not have to be registered with the State; only the main LLC. The beauty of this is that each separate series LLC is treated as if it is a totally separate business entity. For example, Dr. Canal can create Root Canal, LLC, as a series LLC, and then he would create Series A: Root-Canals-R-Us, Series B: Dental Equipment Company, and Series C: Dental Building Company. Thus, Dr. Canal accomplishes a parent-subsidiary type relationship (his own little Alphabet) where each series is treated as a separate business with asset protection between the different series.

Though you may not have billions to play with business ideas like Google, by creating and using a Series LLC you too can and should protect your business interests simply and powerfully. And, now that your business assets are sufficiently protected, you can finally create that Series D you always wanted: Build-a-Moonrover Company.

Footnotes   [ + ]

1. Is it inappropriate to make a Fountainhead joke? Hopefully.
2. who would be surprised if Google announced that one of its secret projects was the development of the first swimming pool full of $100 bills instead of water.
3. A subsidiary company is a company that is owned 100% by the parent company, while the parent company is owned by individual shareholders. For instance, upon Alphabet’s organization, shareholders of Google stock will receive new Alphabet stock and Alphabet (the parent) will be owned by regular Joes like you and me. On the other hand, Google, now as a subsidiary of Alphabet, will have only one shareholder: Alphabet itself.
4. tm pending
5. if
6. hopefully our hypothetical victim is lucky enough to be represented by lawyers as fine as our own Mr. Richards or Mr. Featherstone, Esqs.
Trump debate, republican presidential debate, fox news

Mr. Trump Goes to Washington?

***Disclaimer: Clear Counsel Law Group has not endorsed a candidate for President from any political party. Although we reserve the right to do so, we cover politics on the legal blog because we believe political participation is an essential element of a healthy democracy. God Bless America.***

 

“Never pick a fight with people who buy ink by the barrel.” –Mark Twain

Given how high the ratings were for last night’s debate1)According to Ben Jacobs of The Guardian, the debate ratings were higher than any Sunday Night Football game last season, it is very possible you, as well, sat through the two hour spectacle. Boy did it not fail to deliver in terms of entertainment value! A couple of non-Trump highlights before we attempt to unpack what is happening today.

 

The non-Trump participants

Mr. Christie vs. Mr. Paul: There has been some chatter2)Source Check out that last paragraph, hat tip to David Sirota as to when Mr. Christie actually started working as an U.S. Attorney3)Why let the facts get in the way for a good campaign anecdote?.

That got a bit contentious, eh? Mr. Paul should watch some old tape of his father debating from the past two Presiential election cycles. Ron Paul, while expressing views not in the Republican mainstream4)isolationist foreign policy/auditing the federal reserve, etc. he did so with a affable tone that did not turn people off, as if he was aware that most people watching did not agree with stances but that was still ok5)Mr. Saunders running in the Democratic primary is similar.

Mr. Paul needs to be more clear/careful when he says he is a “different kind of Republian.” That statement implies 1)There is something wrong with Republicans yet 2) Does not sufficiently clarify what he means. The snarky twitter folks last night mocked him ceaselessly for citing that he has been to Chicago/Detroit/Ferguson. What did he do while he was there? Anything of note?

Mr. Rubio: The consenus winner from the talking-heads. If you recall that silly moment he had during the Response to the State-of-the-Union6)with the water bottle. No link, sorry, it is time for all of us to let that go a few years ago, you could not come away as anything but impressed by the hard work he has clearly put in. This field is similar to the Democrat field in 2008 with a deep bench of quality candidates. One wonders if Mr. Rubio will play the part of Mr. Obama as the first term senator, more than a decade younger than most of the field, not willing to ‘wait his turn’ so to speak. He has made significant inroads with the non-Rand Paul-supporting Republicans in Nevada. If he is organizing with the same vigor in Iowa, New Hampshire, South Carolina he will have a real good shot at this thing.

Mr. Kasich: Now that is how you use a homefield advantage7)The debate took place in Clevlend, OH. Mr. Kasich is currently serving his second term as governor of Ohio! The crowd loved him as much as they disliked Mr. Trump. His brand of egalitarian Christianity played well on television; he is one of the few who remembers the type of compassionate conservatism that helped President Bush win two terms. When prompted to comment on Mr. Trump, he demonstrated to the rest of the field how to take the question with grace, a la “Mr. Trump has tapped into the frustration of voters.” He showed himself to be a serious contender; now the question remains if he can overcome his associations with the aspects of President Bush’s administration that people dislike. One could contend that he is more intertwined with President Bush than Jeb.

Mr. Huckabee: “The purpose of the military is to kill people and break things.” OOhhh. I am glad that is finally resolved. Somebody call Paul Bremer!

Mr. Carson: Still seems uncomfortable discussing foreign policy, a great finish though with his last two answers. You can see why he has polled well so far.

Mr. Walker: It is a bit surprising to see him at the bottom of post-debate polls, as he did not commit any gaffes. But in this post-Trump era of politics, playing it safe may not be good enough anymore.

Mr. Bush: It has been quite a while since he has been on stage in a debate setting, and he showed a little rust. Similar to when President Obama was in the primiaries in 2008, Mr. Bush struggled to put his views into a clean, easily-digestible soundbites. It might be time to use all the money he has acquired through fundraising for a large television ad-buy. He will want to prevent Mr. Kasich from gaining serious momentum from this debate, as they are chasing the same type of republican voter.

Mr. Cruz: He was clearly the most comfortable of the bunch on that stage. The post-debate polls have shown that the people liked his performance; speaking in a slow, clear way certainly helped. If Mr. Bush and Mr. Kasich are chasing one type of republican voter, Mr. Cruz and Mr. Trump are chasing the other. So long as Mr. Trump stays popular, it will be difficult for Mr. Cruz to rise above the pack.

 

Mr. Trump needs his own heading

Here is a little secret about political debates. You can only lose or not lose; there is no winning. Everyone watches in the modern era for the biggest gafffe, then mocks the poor candidate into political submission. But have we found the first gaffe-proof candidate? Here are a few clips of Mr. Trump from the debate, in case you missed the fun.

 

Wow, right? Mr. Trump, in the spin-room after the debate8)of course he does his own spin-room work attacked the moderators as asking him too tough of questions. However, they were tough on everyone, asking Mr. Bush to comment on his changing views of the Iraq invasion, asking Mr. Walker/Kasich/Christie about their states under-performing economy. It just came off like Mr. Trump is not used to answer argumentative quieries. Yet, if they are going to ask Mr. Bush about common core9)his business venture since leaving office in 2002, then they should have asked Mr. Walker about defeating organized labor, Mr. Paul about civil liberties, Mr. Cruz about cooking bacon with automatic weapons10)I kid Mr. Cruz, but that video was silly, and Mr. Trump about foreign trade. Overall, I thought the debate was moderated as well as it could be, compliments to Ms. Kelly, Mr. Baer and Mr. Wallace.

If you were watching the post-game show on any of the cable news channels, you would think that Mr. Trump’s campaign ended as soon as he finished his closing remarks. The technocrats responded like this:

Mr. Luntz’s focus group, broadcasted on the Fox News soon after the debate ended, was very harsh toward Mr. Trump.

Mr. Cohen, Mr.Trump’s lawyer11)whom you may remember for his interesting definitions of rape from a week ago said:

In the pre-internet era, there would no other conclusion to draw but that Mr. Trump is ruined politically. Yet, the internet remains the true, democratic political force. The people no longer need to talking-heads to speak for them, they go online and speak for themselves. According to the babbling heads on the TV, no matter what channel, the winners of the debate were Mr. Rubio, Mr. Kasich and maybe Mr. Huckabee. Now look at these polls:

Drudge Poll

Time Poll

Poll from The Right Scoop

Palm Beach Post Poll

They all look like that! Mr. Trump won by at least 3 touchdowns, mostly certainly, he covered the spread. The television plutocrats may need to take a hard look at themselves; just because they want Mr. Trump to lose, does not mean that he is losing. They are not on the television to tell us who they think should win, but who won! These are different concepts.

 

How is this happening?

I do not know for sure, but I am happy to do a little guessing:

  1. The plutocrats are out of touch with republican primary voters. The party is more broad than the country-club types that watch CNBC religiously. Your salt-of-the-earth primary voter cares less about GDP and national budgets than immigration, guns, abortion, trade etc.. Mr. Trump speaks to these issues with a clarity12)there are many options for the correct word here in a way that is rare in modern American politics.
  2. People like strong leadership. The populace, regardless of party, wants boldness from our leadership. From the looks of the polling, people value strength much more than sensitivity, seemingly to the extent that they do not care how insensitive that boldness is. There is a growing irritation with the voting public over politicians saying things in campaign season, then reneging once they come into office13)if your only goal is to stay in office, this makes plenty of sense. Maybe it is that the republican voters see Mr. Trump as a man of his word.
  3. Expectations of politicans have changed. With the growth of social media, we are all in each other’s business to an extent never-before-seen. We expect everyone, from our celebrities to business people to live their lives publically and transparently. Politican double-speak, aloofness, and detachment may not be viable anymore. People may want their politicans to be as accessible as their reality TV stars.

It is very possible that none of those reasons are why, but we will not know for sure until if/when Mr. Trump drops in the polls.

As it turns out, Mr. Trump has no interest in backing down from the Fox News Machine:

Not that I have a dog in the fight, but Mr. Trump would be advised to adhere by the Mark Twain quote above.

Before we go, for entertainment purposes only, Jimmy Vaccaro (The oddsmaker of Vegas oddsmakers) published odds of winning the republican nomination before the debate:

  • Jeb Bush — 2/1
  • Scott Walker — 3/1
  • John Kasich — 7/1
  • Mike Huckabee — 12/1
  • Marco Rubio — 20/1
  • Chris Christie — 20/1
  • Donald Trump — 20/1
  • Bobby Jindal — 30/1
  • Ben Carson — 30/1
  • Ted Cruz — 30/1
  • Rand Paul — 30/1
  • Lindsey Graham — 50/1
  • Rick Santorum — 50/1
  • Rick Perry — 75/1
  • George Pataki — 100/1
  • Carly Fiorina — 100/1
  • Jim Gilmore — 250/1
  • Mark Everson — 500/1

14)Source: LV Sun . If I was a betting person, I would buy a ticket for Ms. Fiorina at 100/1; talk about a live dog!15)betting term for a underdog with a good chance of winning, calm yourself. She put on a clinic during the first debate, even if she was foiled by Mr. Perry16)I kid Mr. Perry; he did much better than four years ago. Come the next debate, I expect her to give the front-runners all they can handle.

Do you think the debate changed these odds? Leave a comment telling us why. And show your work!

 

In case you were wondering what Ms. Clinton was up to last night..

 

More debate coverage!

Bloomberg News

Yahoo News

Washington Post

The Week

Fox News

The National Journal

Washington Examiner

CNN

The Blaze

Wall St. Journal

Business Insider

Footnotes   [ + ]

1. According to Ben Jacobs of The Guardian, the debate ratings were higher than any Sunday Night Football game last season
2. Source Check out that last paragraph, hat tip to David Sirota
3. Why let the facts get in the way for a good campaign anecdote?
4. isolationist foreign policy/auditing the federal reserve, etc.
5. Mr. Saunders running in the Democratic primary is similar
6. with the water bottle. No link, sorry, it is time for all of us to let that go
7. The debate took place in Clevlend, OH. Mr. Kasich is currently serving his second term as governor of Ohio
8. of course he does his own spin-room work
9. his business venture since leaving office in 2002
10. I kid Mr. Cruz, but that video was silly
11. whom you may remember for his interesting definitions of rape from a week ago
12. there are many options for the correct word here
13. if your only goal is to stay in office, this makes plenty of sense
14. Source: LV Sun 
15. betting term for a underdog with a good chance of winning, calm yourself
16. I kid Mr. Perry; he did much better than four years ago
Nevada corporation, LLC

Converting a Nevada Corporation to an LLC

Earlier this year, Nevada’s Republican-controlled Senate, Republican-controlled Assembly, and Republican Governor passed into law the largest tax increase in Nevada history1)Source. Among many other tax increases, the tax package significantly affects Nevada corporations, while largely leaving other Nevada business types (such as LLCs) alone. Because of the significant financial hit on corporations, many, and possibly most, Nevada corporations should now convert their business entity from a corporation to an LLC. First, we will analyze the cost to do business as a corporation and how the new tax package affects your bottom line. Second, I will provide you with the process to convert a Nevada corporation to an LLC.

 

The New Nevada Corporation Taxes and Fees

All Nevada business entities, whether a corporation or an LLC or a partnership, etc., are required to file an Annual List with the Secretary of State that includes the names and addresses of the entity’s management. The Annual List is due every year on the anniversary of the incorporation or organization of the entity. Failure to file the Annual List will eventually lead to the Secretary of State revoking the entity’s Charter to do business in Nevada. Prior to the new tax package, the filing fee for the Annual List was $125 for all business entities that are NOT for-profit corporations (such as LLCs, partnerships, etc.). For corporations, however, the annual filing fee ranged from as low as $125 to a maximum of $11,125 depending on the value of the total authorized stock of the corporation.

The new tax package increases the Annual List filing fee to a minimum of $150 for all entities, including corporations and LLCs. However, the filing fee for corporations continues to increase, as previously, depending on the value of the stock. Thus, the tax package does not cause a huge change from the previous fee schedule; basically, an increase of $25 across the board on the bottom end.

However, the new tax package really smacks corporations with the filing fee for the Nevada State Business License. In addition to paying the filing fee for the Annual List, all Nevada business entities2)I say all, but really not all entities are implicated. For instance, non-profit corporations are not issued a State Business License and some other types of entities are exempted from the requirement. must also pay for the Nevada State Business License on an annual basis at the same time as the filing of the Annual List. Prior to the tax increase, the fee for the Business License was $200 across the board for all entities. Now, thanks to the tax hike, the filing fee for Nevada corporations was increased to $500. Meanwhile, the filing fee for LLCs (and other entities) remained at $200. The effect of the tax increases to the Annual List and the State Business License filing fees is that a corporation now must pay a minimum of $650 every year to the State of Nevada for the privilege of doing business in Nevada3)This amount does not include local business license fees charged by cities and counties.. Meanwhile, LLCs pay only $350 total every year.

Governor Sandoval’s new tax plan adds two new reasons4)there are many more to why forming an LLC is preferable to a corporation formation:

(1) the Annual List filing fee for corporations increases depending on the value of the stock of the corporation, while the filing fee for an LLC stays the same regardless of the value of the LLC; and (2) a corporation will pay $300 more for its annual State Business License than will an LLC. Over the course of several years, these differences will add up.

 

How to convert a Nevada Corporation to an LLC

As you can see above, converting your Nevada corporation to an LLC makes great business sense given the new law. In order to do so, a corporation must do the following:

First, the board of directors of the corporation must adopt a resolution adopting a plan of conversion and make a recommendation to the corporation’s shareholders to approve the plan of conversion.

Second, the shareholders of the corporation must vote to approve the plan of conversion.

Third, upon approval by the board and shareholders, the corporation files Articles of Conversion with the Nevada Secretary of State.

And Voila! Your Nevada corporation is now an LLC, and you are saving yourself at least $300 (and maybe more) each year in annual filing fees to the State of Nevada5)There is a filing fee of $325 for the Articles of Conversion, but saving one year’s worth of the increased State Business License fee makes this filing fee a wash in a short amount of time..

For nearly all businesses, the Nevada corporation is a dying dinosaur in the world of business entities. An LLC has many advantages over a corporation, while the advantages of a corporation over an LLC are quite few. If you are currently operating your business as corporation, you are not stuck! There is a plan of rescue to convert to an LLC with all of its advantages. Give me a call to talk about adopting a plan of conversion and change your entity to an LLC today.

 

Footnotes   [ + ]

1. Source
2. I say all, but really not all entities are implicated. For instance, non-profit corporations are not issued a State Business License and some other types of entities are exempted from the requirement.
3. This amount does not include local business license fees charged by cities and counties.
4. there are many more
5. There is a filing fee of $325 for the Articles of Conversion, but saving one year’s worth of the increased State Business License fee makes this filing fee a wash in a short amount of time.
crying child, screaming

Screaming at a Crying Child in a Public Place: What is the Right Thing to Do?

As a business owner, what would you do if patrons of yours had a child with them that they would (or could) not stop from crying?

Before you answer, assume that 1) the establishment is full of other customers that are both annoyed with the crying and will see what you are about to do and 2) that we are living in the era of the “hyper gotcha-media”1)tm pending where we all now have electronic devices that can easily take video of what happens around us, and will likely tattle at the first whiff of unreasonable behavior.

Not an easy hypothetical, is it2)I have a more personal anecdote. A few weeks ago I flew back to Las Vegas from New York on a late night flight [the equivalent of a red-eye going west]. This couple with at least 4 children did not purchase a seat for their two very young kids, presuming [I assume] that they would hold the child through the 6 hour flight. For whatever reason, the child cried continuously [this is an appropriate time to use the term ‘literally’] for the entire flight. If you do not know many New Yorkers, they are more likely than most to tell you exactly how they feel about a particular set of circumstances. I could see folks starring lasers at the young couple in the back of the plane, then leaning over to the person next to him/her and stage whispering nasty thoughts that I will not repeat here. I was concerned that someone was about to get up, start an altercation, and we would all end up in Denver for the night. Luckily, this did not occur. But still, what were we all supposed to do? I felt both sorry for the young couple and angry at them for not being more responsible. I imagine the customers in the following scenario felt a similar cognitive dissonance. I share this tale only so you know, before I evaluate the behavior of the folks involved in this scenario, that I am certainly not better or superior to them.?

Hopefully, if this happens to you, the following does not occur:

In Portland, ME, a few weeks ago, a young couple with their toddler daughter arrived at a small, busy, breakfast establishment. After waiting thirty minutes for a table, the couple had to wait an additional forty minutes for their food to be prepared3)those familiar with the east coast small breakfast establishments will not find this wait time surprising. Unlike the spacious kitchens in Southern Nevada, there is a finite amount of space that these folks have to cook in, and it takes a bit longer to get your food. Plus, there is no pressure from the casino to get you out of the restaurant and back on the floor.

What happened next is not very clear; it depends upon whom you ask. All I can report with certainty is that the toddler became unruly, and there was a confrontation between the toddler’s family and the restaurant owner. I will allow you to read what each party stated on the facebook, and allow you to do your best Judge Judy4)it is shame we do not have more of her. If are sensitive to belligerent language, you may want to skip the posts from Marcy’s Diner.

 

Crying child, portland maine, restaurant owner, tort

Ms. Carson then went on to write an op-ed for the Washington Post regarding the incident5)It is tough for the Post to find hard news to report without an upcoming election..oh wait.

Again, I do not know for sure, the following is not anything more than conjecture, but there seems to be an agreement that the restauranteur addressed the child directly in an unfriendly manner. I know this may shock you, loyal reader, but the internets went into a tizzy over this. Most folks have previously been similarly situated, and therefore, have a strong opinion as to what was right for the parents/restauranteur to do.

The Press Herald of Portland, ME, polled their readers to discover how the public would adjudicate this issue. Out of 5500 votes, 61% of the respondents said that they approved of the way Ms. Neugebauer handled the unruly child.6)Source  I, for one, was a bit shocked by the result. And here I thought America loved children unconditionally. Perhaps it is just when they are seen, but not heard.

I got a lukewarm take of my own, as a matter of fact! It is a bit more nuanced than most of the opinions I have seen, so please bear with me.

 

If this crying child scenario happened in Nevada, is there a potential tort?

Assuming that folks name-calling on the facebook is not the most efficacious means to resolve societal issues, is the court system the right forum? If so, assuming the mother’s account of the events is correct, do the parents have a cause of actions against the restauranteur? Before we begin, know that each state has its own tort law, so what is true in Nevada is not necessarily true anywhere else. Given what we know of the facts, it is possible that a similarly situated plaintiff in Nevada might have a cause of action against the restauranteur through Intentional Infliction of Emotional Distress(IIED) cause of action. The necessary elements of IIED are as follows:

1) the defendants’ conduct was extreme and outrageous;

2) defendants’ conduct was non-privileged;

3) defendants acted with the intention to cause plaintiffs emotional distress, or with reckless disregard for the probability for causing such distress;

4) plaintiffs actually suffered severe or extreme emotional distress; and

5) defendants’ conduct actually or proximately caused the emotional distress.7)Alam v. Reno Hilton Corp., 819 F. Supp. 905, 911 Dist. Court, D. Nevada 1993

 

If I may guess, you have read through those elements and are still not sure if these facts meet those standards. Fair enough. I am happy to elaborate in the pertinent ones. Elements 2 and 3 are easily met in our hypothetical restaurant scenario. There is no legal privilege to yell at another person’s child, and the restauranteur clearly intended to yell at the child, as expressed in her facebook post. As to the other three elements, things get a bit murky.

Was the conduct “extreme and outrageous?” That is a tough question to answer. “Extreme and outrageous” conduct “go[es] beyond all possible bounds of decency, is atrocious and utterly intolerable.”8)Id. I can hear you muttering under your breathe; more synonyms do not make the issue any more clear. The behavior of the restauranteur is what is called a question of fact that would be decided by a judge or jury.  The finder of fact would query, “is the behavior ‘extreme and outrageous’ in the eyes of the hypothetical reasonable person?” The answer again is unclear. As we saw last year with the hoopla surrounding Adrian Peterson9)the football player that was suspended for punishing his young son with a switch, mores with respect to parenting vary greatly through the country. If these facts were presented to a jury in the affluent part of the Bay Area/Park Slope, Brooklyn/Los Angeles, my guess is that the twelve, randomly selected folks would be more inclined to find yelling at another’s child as “extreme and outrageous.” If the case was tried in rural Texas, the deep south, or middle-west, I think it would be less likely.

As to the fourth element, the Alam court states “the stress must be so severe and of such intensity that no reasonable person could be expected to endure it. Moreover, the less extreme the outrage…the more appropriate it is to require evidence of physical injury or illness from the emotional distress.”10)Id. Citation omitted A similar social mores issue as above exists here. Depending on where you are, folks have different expectations of their children. Some think tough love is good for them, others think nurture is more important than nature. Considering the Las Vegas Valley is in between these two extremes, it is difficult to predict how a 12-person jury would decide.

In order for there to be a valid claim, the child would need to manifest actual harm suffered that was caused by the event. The kid would need to go from being gregarious around adults to needing multiple sessions of psychotherapy a week, for example. Even then, if the child suffered a trauma before the incident, it might be difficult to determine if this restauranteur is the actual or proximate cause of the child’s damages.

That was my long-winded way of telling you that a potential case, like most, will be fact-specific. As to the possibility of a tort, a few years ago in New York, Patti Labelle11)according to news accounts returned to an apartment building where she was staying, saw an unsupervised child, and lost her cool, to say the least12)read more here. The case did not go to trial, but Ms. Labelle decide to settle for six-figures before she was to be deposed. Although there is no telling why she settled, it is not that common for folks to pay out six-figures over frivolous claims.

 

Compassion for the Crying Child

Before we wrap up here, if I may, a few words13)#Synecdoche on sympathy, empathy and compassion. At least from the press accounts I have come across, I have yet to see my writer friends get to the underlying issue of this unfortunate incident. Comment if you disagree, but my feelings are that folks heard the details of the story, then latched onto the perspective that they were most familiar: either empathy for the toddler’s parents after they have suffered through a similar, painful episode with their own uncontrollable children, or empathy for the restauranteur as a person with no kids that who is tired of parents that cannot control their children in public.

Is this what we have become? Only able to understand perspectives we are most familiar with? Over the weekend I finished Ta-Nehisi Coates’ Between the World and Me14)Highly recommended. There are too many great parts to elaborate on in a footnote, but I must say that I deeply admire his vulnerability. The book elicited thoughts of Vollmann’s “sleepwalkers” in Europe Central, Ellison’s Invisible Man [thematically], Morrison’s Song of Solomon [again, thematically], and the comment made by David Foster Wallace to David Lipsky in Although Of Course You End Up Becoming Yourself[This is in no way an endorsement of that movie. I am about to paraphrase.] that the real heroes of our society are the ones who will let go of the cynical irony and be genuine, honest, and vulnerable about how they feel, without any regard for how the remaining cynics will react. Toward the end of the letter to his son, Mr. Coates describes an incident in New York City when he was walking with his young son and a woman of another race shoved his son out of the way as if he was not entitled any amount of human decency. Mr. Coates describes becoming agitated (as I am sure we all would) and addressing the woman in a stern manner in reference to what she had done. Other men of the woman’s race saw the conversation and stepped in and threatened to have Mr. Coates arrested for speaking to the woman in such a way. Mr. Coates went on to express his regret to his son on how he had 1) lost his cool and 2) put his son at risk through the confrontation. How many of us would have responded in the same way and been left with similar regrets?

What is most apparent about the restaurant incident is that neither party seems to have any regard for how the other side must be feeling. It is doubtful that the parents of the toddler wanted her to be crying in the restaurant for all that time15)they do not seem like malicious people from what I have seen. To respond the way the restauranteur makes it look as if she thought the parents were trying to drive away her weekend breakfast crowd. Even if she cannot understand why the parents cannot or will not stop the child from crying, would not sympathy and compassion lead to a better outcome? Bring the child a little something to eat to tide her over? How about a crayon and a piece of paper? Upon their arrival, let the parents know that there will be a bit of wait with the breakfast rush so they know what they are getting into? If these options are not functional, and the child is crying in a manner unsuitable to the owner, perhaps pull the parent(s) aside and speak to them respectfully about why the disturbance is unacceptable. To yell at a small child seems to be the worst outcome possible besides violence (as we saw from the facebook post, the restaurateur was not against that option). Not that I am judging folks here, but I cannot fathom why it is necessary to call the small child those horrible names on the facebook. It is not like the family will be returning to the restaurant.

Ah, but what about the parents? Even if it takes a village to raise a child, perhaps the villagers should be permitted to opt in? Just because you are used to the volume of your crying child, it is not fair to assume others are as well. The restaurateur, her employees, and their fellow customers deserve more respect than that. If you do not know what to do, you could always ask for help! Like Mr. Coates spoke of, as parents you are possibly putting your child at unnecessary risk by not addressing the incessant crying. How important could those pancakes possibly be? Worse, instead of trying to understand why the restauranteur would respond in an unconscious manner16)as Eckhart Tolle would put it, you chose to instigate further harm by attacking the restaurant owner on the facebook, which is what triggered the media firestorm. Clearly the parents do not want to behave this way from the comment the mother made to her child after the yelling about not wanting the young girl to grow up to be that way. So is it ok to behave that way online? Now they have turned the incident into a crying shame, for the parents and the child. And for what good? Did shaming the owner bring about the desired result? Or just create a shame cycle?

Is this a product of our friends in the media exploiting conflict for their own profit without regard for the feelings of those involved? Who is to say. No one made the participants publish responses on the facebook and Washington Post, they all made that choice. But we in the media could show more compassion as well. Clear these folks were a bit out of mind during this incident, but by turning the incident into click-bait, we have defined these poor people by their worst behavior of one weekend morning17)it would be a different story if the incident was so-called “news-worthy,” but you will have a difficult time persuading me that breakfast incident in Portland, Maine, affects any of our lives. I do not think any of us want to be defined by our worst actions. Just because we can make a snap judgments does not mean we should.

Nor will you be able to persuade me that if each party showed sympathy and compassion for one another that it would not have led to a more desired result. Anger, shame and humiliation resulted in worse outcome for all involved. It does not have to be this way! Let us follow Mr. Coates’ example and use this incident to stay more conscious and have more sympathy for one another, even if it is not clear why in the moment. Good can come of all this hoopla after all.

 

More reading for your perusal:

NY Post on Patti Labelle

The Washington Post

The USA Today

Footnotes   [ + ]

1. tm pending
2. I have a more personal anecdote. A few weeks ago I flew back to Las Vegas from New York on a late night flight [the equivalent of a red-eye going west]. This couple with at least 4 children did not purchase a seat for their two very young kids, presuming [I assume] that they would hold the child through the 6 hour flight. For whatever reason, the child cried continuously [this is an appropriate time to use the term ‘literally’] for the entire flight. If you do not know many New Yorkers, they are more likely than most to tell you exactly how they feel about a particular set of circumstances. I could see folks starring lasers at the young couple in the back of the plane, then leaning over to the person next to him/her and stage whispering nasty thoughts that I will not repeat here. I was concerned that someone was about to get up, start an altercation, and we would all end up in Denver for the night. Luckily, this did not occur. But still, what were we all supposed to do? I felt both sorry for the young couple and angry at them for not being more responsible. I imagine the customers in the following scenario felt a similar cognitive dissonance. I share this tale only so you know, before I evaluate the behavior of the folks involved in this scenario, that I am certainly not better or superior to them.
3. those familiar with the east coast small breakfast establishments will not find this wait time surprising. Unlike the spacious kitchens in Southern Nevada, there is a finite amount of space that these folks have to cook in, and it takes a bit longer to get your food. Plus, there is no pressure from the casino to get you out of the restaurant and back on the floor
4. it is shame we do not have more of her
5. It is tough for the Post to find hard news to report without an upcoming election..oh wait
6. Source 
7. Alam v. Reno Hilton Corp., 819 F. Supp. 905, 911 Dist. Court, D. Nevada 1993
8. Id.
9. the football player that was suspended for punishing his young son with a switch
10. Id. Citation omitted
11. according to news accounts
12. read more here
13. #Synecdoche
14. Highly recommended. There are too many great parts to elaborate on in a footnote, but I must say that I deeply admire his vulnerability. The book elicited thoughts of Vollmann’s “sleepwalkers” in Europe Central, Ellison’s Invisible Man [thematically], Morrison’s Song of Solomon [again, thematically], and the comment made by David Foster Wallace to David Lipsky in Although Of Course You End Up Becoming Yourself[This is in no way an endorsement of that movie. I am about to paraphrase.] that the real heroes of our society are the ones who will let go of the cynical irony and be genuine, honest, and vulnerable about how they feel, without any regard for how the remaining cynics will react.
15. they do not seem like malicious people from what I have seen
16. as Eckhart Tolle would put it
17. it would be a different story if the incident was so-called “news-worthy,” but you will have a difficult time persuading me that breakfast incident in Portland, Maine, affects any of our lives
Street performers, Las Vegas, regulations

The Proposed Regulations of Las Vegas Street Performers

It is confirmed loyal Clear Counsel Legal Blog reader; the City of Las Vegas is as much of a fan of our humble blog as you are. Only a couple days after we published our expose on obscene street performers in Las Vegas, the city announced  that it will be introducing ordinances to regulate street performers on the Fremont Street Experience.

Following the recent pattern, the city worked with the ACLU of Nevada to ensure that the regulations were not overbearing or violate the 1st Amendment rights of the performers1)Source. In turn, the ACLU has endorsed the ordinances, which one has to imagine, lowers the odds of a §1983 action2)the parlance used by attorneys to describe civil rights lawsuits tried in federal court, 1983 refers to the Section of the U.S. Code where the right of citizens to sue over civil rights violations is located against the city.3)I love when folks work together!

 

But what do these ordinances for street performers say?

A hat tip to Sergio Avila4)of Channel 3 for tweeting out a picture of the ordinances soon after the announcement. You can see the picture below.

https://twitter.com/SergioNews3LV/status/626424016350281729/photo/1

 

The city published a summary of the new ordinances on its tumblr page5)What an age we are living in.  Here are some of the highlights:

  • The city will designate 38 performance zones for performers to use between 3p.m. and 2a.m.. The little material that is available is silent as to how performance spaces are regulated between 2a.m. and 3p.m.. I am happy to speculate, if that tickles your fancy. It will either be that no performances are allowed6)that seems like a like quite a bit of pressure on Metro to keep a fairly large area clear of performers, or during the off-hours, Fremont will revert back to the wild-west of street performances, as it is currently. The performance spaces are 6 feet each in diameter, 40 feet apart from one another.
  • The performers must register with the City of Las Vegas or with the Fremont Street Experience. They do not plan on charging a fee and the registration will be good for 180 days. The city should consider charging a fee, even if nominal7)it does not have to be $37 like Santa Monica, even $5 or $10 will do as a means to keep the most disreputable folks away.
  • There is a prohibition against open flames, flying projectiles, and sitting/laying on the ground.

If you take a quick glance at the pictured tweeted out by Mr. Avila, you will see that the city plans on adopting the noise regulations used by the Santa Monica Promenade, yet they do not make explicit which regulations they are referring to.  Not to fret loyal reader! I dug them up for you to see:

 

6.116.030 Allowable noise levels on Promenade and Transit Mall.

Individuals and businesses shall comply with all of the following noise levels and standards of this Section:

(a) The following maximum noise level (Lmax) shall apply on the Third Street Promenade and the Transit Mall during the times indicated:

Time Maximum Noise Level (Lmax)

Mon-Fri 9 a.m.-7:00 p.m. 75 dBA*/97 dBA**

Mon-Thurs 7 p.m.-10:30 p.m. 85 dBA*/107 dBA**

Friday 7 p.m.-midnight 85 dBA*/107 dBA**

Saturday 9 a.m.-midnight 85 dBA*/107 dBA**

Sunday 9 a.m.-10:30 p.m. 85 dBA*/107 dBA**

Sat/Sun 12:01 a.m.-1:30 a.m. 65 BA*/87 dBA**

* When measured at a minimum distance of twenty-five feet from the source of the noise.

** When measured at a minimum distance of one foot from the source of the noise.

At all other times, the City-wide noise standards as reflected in Chapter 4 of this Code shall apply except the Lmax standard shall provide the basis for measuring the dBA level.

(b) No person or group shall create any noise, or allow the creation of any noise on the Third Street Promenade or Transit Mall which causes the noise level to exceed the Lmax standard established in this Section.

(c) No business on the Third Street Promenade shall utilize any speaker or sound reproduction system at a volume that can be heard inside the premises of another building or structure while the doors and windows to the premises are closed.

(d) No person shall interfere with or resist the taking of any noise measurement authorized by this Section.

(e) No person shall use a speaker on a public sidewalk, street, or right-of-way unless it is placed on the ground and is no more than three feet in height.

(f) Amplified sound shall not be unreasonably loud, raucous, jarring or disturbing to persons of normal sensitiveness within the area of audibility. (Added by Ord. No. 1888CCS § 6, adopted 10/28/97; amended by Ord. No. 2009CCS § 3, adopted 5/22/01; Ord. No. 2047CCS § 8, adopted 7/9/02; Ord. No. 2075CCS § 6, adopted 5-13-03; Ord. No. 2145CCS § 5, adopted 11/23/04; Ord. No. 2337CCS § 5, adopted 12/14/10)

 

What’s that? You cannot eyeball8)earball? 75 dBA? Multiple sources state that a passenger car passing you from 25 feet away will do so at a volume of 77 dBA9)Source. Decibel levels are measured using logarithms10)do not click away! I promise there will be no more math!, so from a starting point of 70 dBA, a noise measured at 80 dBA is twice is loud, relatively, and a noise measured at 60 dBA is half as loud as 70 dBA.

When the statement reads “to match Promenade rules,” one must presume all of the rules or they would have used a different verb. Will no noise be permitted afrer 10:30p.m. Monday-Thursday? What about after 1:30a.m. on the weekends? Our city stays up a bit later than most, I would be surprised if they used these time limits.

 

What about the obscenity issue in reference to street performers?

Last time, we talked extensively about the difficulties in regulating the obscene acts of street performers in Las Vegas. Nothing I have found regarding these new ordinances addresses this pressing issue.  Just because the issue is difficult does not mean it should be ignored. It sounds11)from afar like the city of Las Vegas and the ACLU have a nice working relationship; now would be the time to try to address these problems. Granted, the noise issue on Fremont Street needed to be addressed, however, it is the lewdness of a few of the Fremont street performers that would be far more likely to perturb a new tourist into not returning. I am not saying that we need the same social norms applied when folks visit a European church or anything12)covered shoulders, no hats, etc., but there has to be a way to enforce a modicum of decency in the areas where the public is free to roam.

As the Downtown Las Vegas project continues to try to attract new business to the district, this type of obscenity hurts the cause. Why would a company want to relocate to an area where its more conservative employees are uncomfortable to walk the neighborhood? As I have said previously, the lewd street performers also bring a bad name to the rest of the folks working hard down there. There is no reason the city should not continue to provide adult entertainment, but there is a proper time and space for such activity.

I commend the city of Las Vegas for taking on this tough issue of regulating street performers; let us hope it is only the first step. I look forward to hearing what the City Counsel has to say at the 2 September meeting.

 

Watch the press conference here.

Footnotes   [ + ]

1. Source
2. the parlance used by attorneys to describe civil rights lawsuits tried in federal court, 1983 refers to the Section of the U.S. Code where the right of citizens to sue over civil rights violations is located
3. I love when folks work together!
4. of Channel 3
5. What an age we are living in
6. that seems like a like quite a bit of pressure on Metro to keep a fairly large area clear of performers
7. it does not have to be $37 like Santa Monica, even $5 or $10 will do
8. earball?
9. Source
10. do not click away! I promise there will be no more math!
11. from afar
12. covered shoulders, no hats, etc.
gmo produce food america monsanto

The New GMO Law: Is It Constitutional?

The GMO labeling debate has gone national! Those of us that live out west have been hearing these rumblings for years, but since the Congress has taken up the issue, now we may debate it as a country.  It seems no one has a lukewarm opinion of GMOs; people either hate them passionately, or hate the people who hate them1)with an equal amount of passion.

There are currently three states2)Vermont, Connecticut and Maine that have passed laws requiring food companies to note on their label if the food product being sold was produced with a GMO. However, there are 85 more GMO related bills in 29 additional states addressing GMO labeling3)Source. The anti-GMO folks consistently cite poll numbers that say 90% of the public would prefer that food made with a GMO be labeled as such. We cannot count on our friends in the House of Representatives for much, but when a super majority of the populace agree on a matter, they most often will take a strong stand on that issue.

The opposite seems to be occurring with the GMO legislation.  Last week, the House passed the Safe and Accurate Food Labeling Act of 20154)the latest in ironic bill names from the House, the details of which we will go into in a moment.   For now, know that the environmentalist crowd is quite irritated with the bill. Before we take sides, point fingers and do a little name-calling, we will need a little background on what a GMO is and why everyone is so upset.

 

What is a GMO and is it necessary to label them in our food?

A GMO is a “genetically modified organism” which means food that was grown from seeds that are manufactured5)the correct verb choice here is difficult, the scientists are splicing genes and attempting to optimize desirable attributes.  Currently, there are only eight GMO products that are permitted to be sold on the U.S. market:

  1. Corn
  2. Soy
  3. Alfalfa
  4. Canola
  5. Cotton
  6. Papaya
  7. Sugar Beets
  8. Zucchini and Yellow Summer Squash6)Source

You may be interested to know that the majority of processed food7)think food you buy in a box is also on this list because most corn syrup is made with GMO corn. Also, the majority of animals that we eat (cows, pigs, chickens) are fed with GMO produce. With that in mind, know that since GMO produce have been on the market since the 1980s. In turn, we all are one big case study of the effects of GMO produce on humans.

I do not have a strong opinion on this issue, one way or the other8)that should sufficiently upset everyone so please do not take the above statement as a GMO endorsement. The Europeans have done hundreds of tests on GMO products for years now and have yet to come back with any conclusive evidence that GMO food products are harmful for humans to consume. This does not mean that GMO foods are not harmful, only that there is no scientific evidence to suggest such. Everyone offended now? Good. Let us take a glance at the bill that passed the House.

 

How does the Safe and Accurate Food Labeling Act of 2015 affect GMO labeling?

The proposed bill states the following:

Section 424. Food derived from new plant varieties

(2)Labeling required

The Secretary may require that the labeling of a food produced from, containing, or consisting of a genetically engineered plant contain a statement to adequately inform consumers of a difference between the food so produced and its comparable food if the Secretary determines that—

(A)there is a material difference in the functional, nutritional, or compositional characteristics, allergenicity, or other attributes between the food so produced and its comparable food; and

(B)the disclosure of such material difference is necessary to protect public health and safety or to prevent the label or labeling of the food so produced from being false or misleading in any particular.

 

As I am sure you can tell, “material difference” is the key term here. Because American scientists have not found a difference in taste, nutritional value, or form of GMO crops, the federal government considers there to be no “material difference” between organic and GMO bread produce.  Until science discovers9)if there is one a “material difference,” Big Food10)tm pending? will not be required to label their GMO grown products.

Section 113. Preemption

Regardless of whether regulations have been promulgated under section 112, beginning on the date of the enactment of this Act, no State or political subdivision of a State may directly or indirectly establish under any authority or continue in effect as to any food in interstate commerce any requirement with respect to the sale or offering for sale in interstate commerce of a genetically engineered plant for use or application in food that is not identical to the requirement of section 461 of the Plant Protection Act (as added by section 111 of this Act).

 

This language, as you will see below, explicitly states how federal and state laws interplay. If the Congress passes a law about a subject matter, then the states are not permitted to pass laws that regulate the legal area in a different manner. This is the Supremacy Clause (of the Constitution) in action.

Section 203. Effective date; preemption

(b)Prohibitions against mandatory labeling of food developed using genetic engineering

(1)In general

Subject to paragraph (2), no State or political subdivision of a State may directly or indirectly establish under any authority or continue in effect as to any covered product (as defined in section 291 of the Agricultural Marketing Act of 1946, as added by section 201 of this Act) in interstate commerce, any requirement for the labeling of a covered product indicating the product as having been produced from, containing, or consisting of a genetically engineered plant, including any requirements for claims that a covered product is or contains an ingredient that was produced from, contains, or consists of a genetically engineered plant.(emphasis added)

 

If you have come across the Safe and Accurate Food Labeling Act of 2015 in a press account, this is the section of the law folks are most upset about.11)Not that I have a dog in the fight but the political party sponsoring this bill is the same one that has been arguing for a few years now that Obamacare violates states’ rights. Some folks on the other side of the aisle are perturbed. I say if you want logically consistency, politics is not the place to look The text above would make it illegal for the three states that have passed GMO labeling legislation to put it in effect and prevent any other states from taking similar action. Folks on both sides12)once they are finished with the ad hominems think the opposition is violating the Constitution. We will have to dig deeper to find out for sure.

 

There must be a Constitutional violation here somewhere; we may need to round up the usual suspects

Each side in this debate feels the other is violating the constitution. First, our libertarian/state’s rights friends claim that the federal government does not have the constitutional authority to dictate to a state government if it is permitted to require a GMO label on food sold in their state.13)Source.

It is time to get out our pocket Constitutions! To comprehend the constitutionality question, we need to understand the Commerce Clause. I call your attention to Article I, Section 8, Clause 3, which states that the Congress has the power:

“To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;”

I bet you are wondering how broad the term “Commerce” is in that context. If so, you have latched onto one of the most controversial areas of constitutional law. The interpretation continues to develop with the change in norms of each generation of Americans14)good thing the Constitution is a living, breathing document. See also Missouri v. Holland 252 U.S. 416 [1920]

I will avoid a summary of the history of Commerce Clause interpretations15)for the sake of time, space, and your sanity and instead excerpt a summary from Justice Stevens from Gonzalez v. Raich:16)In this case, the federal government raided a Californian’s medical marijuana supply. The Respondent, Mr. Raich [You may remember Mr. Gonzalez as President Bush’s Attorney General] claimed that the federal government had no legal authority prohibit his growth or use of medical marijuana that took place exclusively in the state of California. The Court disagreed with Mr. Raich.

In assessing the validity of congressional regulation, none of our Commerce Clause cases can be viewed in isolation. As charted in considerable detail in United States v. Lopez, our understanding of the reach of the Commerce Clause, as well as Congress’ assertion of authority thereunder, has evolved over time. The Commerce Clause emerged as the Framers’ response to the central problem giving rise to the Constitution itself: the absence of any federal commerce power under the Articles of Confederation. For the first century of our history, the primary use of the Clause was to preclude the kind of discriminatory state legislation that had once been permissible. Then, in response to rapid industrial development and an increasingly interdependent national economy, Congress “ushered in a new era of federal regulation under the commerce power,” beginning with the enactment of the Interstate Commerce Act in 1887, 24 Stat. 379, and the Sherman Antitrust Act in 1890, 26 Stat. 209, as amended, 15 U. S. C. §2 et seq.

Cases decided during that “new era,” which now spans more than a century, have identified three general categories of regulation in which Congress is authorized to engage under its commerce power. First, Congress can regulate the channels of interstate commerce. Perez v. United States, 402 U. S. 146, 150 (1971). Second, Congress has authority to regulate and protect the instrumentalities of interstate commerce, and persons or things in interstate commerce. Ibid. Third, Congress has the power to regulate activities that substantially affect interstate commerce. Ibid.; NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1, 37 (1937). Only the third category is implicated in the case at hand.

Our case law firmly establishes Congress’ power to regulate purely local activities that are part of an economic “class of activities” that have a substantial effect on interstate commerce. See, e.g., Perez, 402 U. S., at 151; Wickard v. Filburn, 317 U. S. 111, 128–129 (1942). As we stated in Wickard, “even if appellee’s activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce.”17) 545 U.S. 1, 12-13 [2005](emphasis added).

 

If you are not familiar with Wickard18)cited in the paragraph above, you would not believe how angry a dispute of selling wheat would make people (seriously, really angry).  As much as my libertarian friends would like to think the Safe and Accurate Food Labeling Act of 2015 is unconstitutional, it is difficult to make a distinction from Wickard or Raich because, even though, states like Vermont19)In the 19th/early 20th century, the Commerce Clause cases were concerned with states protecting local industries and arbitrarily punishing competitive industries from foreign states[protectionism is as old as any type of politics]. Interestingly, the Vermont law exempts cheese and beer from the food products requiring GMO labeling. are only regulating commerce within their own borders, their regulations will have a “substantial effect on interstate commerce,” and therefore, the regulation from a federal level is likely constitutional.20)Some critics of commerce clause jurisprudence find that contemporary courts decisions to be blatantly results-oriented, meaning that the courts will use the commerce clause to allow the federal government to regulate industries they find displeasing (marijuana, small business) but not for issues where they are sympathetic to the users (guns, big business), for instance see United States v. Alfonso D. Lopez, Jr., 514 U.S. 549 (1995), where the court struck down a federal law banning guns near schools. I would defend my justice friends with more passion if the distinctions drawn made more sense. I find it unlikely, if the Safe and Accurate Food Labeling Act of 2015 is signed into law,21)also unlikely, even if it gets through the Senate that a court would declare that the federal government overreached.

In fact, a few months ago a federal judge in Vermont (Act 120 is the law I am referring to) examined the inverse of the question, whether it is unconstitutional for a state to pass laws requiring food manufacturers to label GMOs if they want to sell in the state.  Big Food22)tm pending? sued the state to prevent Vermont from instituting the new GMO labeling law.  They threw the kitchen sink at Vermont, saying they violated the First Amendment23)mandatory speech?, the Equal Protection Clause, and the Supremacy Clause. The Court only upheld the last constitutional objection, because the FDA promulgated laws through FMIA24)The Federal Meat Inspection Act and PPIA25)Poultry Products Inspection Act that concerned the sphere of influence of GMO labeling:

Act 120 mandates a GE26)genetically engineered disclosure that is clearly in addition to and different than the marking, labeling, and packaging requirements imposed under the FMIA and PPIA. Act 120’s GE disclosure requirement is therefore expressly preempted for products subject to those federal laws.27)Grocery Manufacturers Association et al v. Sorrell et al, No. 5:2014cv00117 – Document 95 [D. Vt. 2015] p. 42(emphasis added)28)Mr. Dillard has more on the Vermont opinion.

 

Although Judge Reiss29)author of the Vermont opinion is not the final authority of what is and is not constitutional, her contention that Act 120 may violate the Supremacy Clause is persuasive.  Granted, on its face, this seems confusing. States are permitted to regulate cigarette smoking, both in terms of where and how much it costs, and alcohol (with respect to the liquor content of certain beverages, for example). Why would states not be permitted to regulate if GMOs are permitted in her citizen’s food? Any legislative arena that the federal government has abdicated (by lack of legislative action) or is forbidden to regulate (by the Constitution) is in the purview of the states. The FMIA and PPIA (with respect to meat) and the new bill would assign the arena of GMO labeling exclusively to the federal government. Dislike this as an anti-GMO person/states’ rights individual? Time to call your Congress-person.

 

How will we address our GMO concerns in the long run?

First, we need to have a better understanding of why so many folks want GMO labels on our food. Unfortunately for them, but Monsanto has been straw-manned into the evil corporate entity that wants to overtake our food supply30)not that the other GMO companies have much better reputations. Many of us are familiar with the rumors of what Monsanto produced during the Vietnam War31)rhymes with cagent dorange, and a lot of folks, justly or unjustly, are uncomfortable with the same company selling us food. Maybe one or more of these companies could use a Blackwater-esq rebranding?

Often cited is the fact that more than 60 countries have banned GMO produce. If a GMO is not harmful, than why the worldwide ban? A little conjecture, given that I am not privy to internal politics of any other countries (or even ours): Perhaps the ban is political. The majority of the companies that sell GMO seeds are American, and American corporations do not have the best reputation abroad32)rightly or wrongly. Perhaps all these countries do not want to be dependent on American corporations for their food supply. Although state autonomy is a valid motive, it is distinct from GMO food being dangerous.

In fact, the American Association for the Advancement of Science ends their paper discussing the research of the health effects of GMO foods with the statement “Legally mandating such a label can only serve to mislead and falsely alarm consumers.”33)Source I am not sure I buy that claim, but I will take them at their word.

This New York Times debate on GMO products has a nice segment that middles the issue:

Currently, there are two paradigms of agriculture being widely promoted: local and organic systems versus globalized and industrialized agriculture. Each has fervent followers and critics. Genuine discourse has broken down: You’re either with Michael Pollan or you’re with Monsanto. But neither of these paradigms, standing alone, can fully meet our needs.

Organic agriculture teaches us important lessons about soils, nutrients and pest management. And local agriculture connects people back to their food system. Unfortunately, certified organic food provides less than 1 percent of the world’s calories, mostly to the wealthy. It is hard to imagine organic farming scaling up to feed 9 billion.

Globalized and industrialized agriculture have benefits of economic scalability, high output and low labor demands. Overall, the Green Revolution has been a huge success. Without it, billions of people would have starved. However, these successes have come with tremendous environmental and social costs, which cannot be sustained.34)I found each entry of this debate interesting; it is worth a look

 

Like it or not, GMO foods will likely be part of our future. For those concerned about their safety, it might be wise to engage in the debate so that there is at least some regulation35)My guess is that many of the anti-GMO folks have similar passions toward fracking. Disengagement and protest have not resulted in any less domestic drilling, nor any progress in having the drilling companies identify what is in the fracking liquids

More GMO reading for your perusal, in particular I enjoyed the material written by grist.org36)also a silly Jimmy Kimmel video as a reward for all your hard work:

 

The Hill

Open Secrets

Nature News

RT

USA Today

Mother Jones

Common Dreams

Scientific American (subscription required)

Grist

Grist II

 

Footnotes   [ + ]

1. with an equal amount of passion
2. Vermont, Connecticut and Maine
3. Source
4. the latest in ironic bill names from the House
5. the correct verb choice here is difficult, the scientists are splicing genes and attempting to optimize desirable attributes
6. Source
7. think food you buy in a box
8. that should sufficiently upset everyone
9. if there is one
10, 22. tm pending?
11. Not that I have a dog in the fight but the political party sponsoring this bill is the same one that has been arguing for a few years now that Obamacare violates states’ rights. Some folks on the other side of the aisle are perturbed. I say if you want logically consistency, politics is not the place to look
12. once they are finished with the ad hominems
13. Source
14. good thing the Constitution is a living, breathing document. See also Missouri v. Holland 252 U.S. 416 [1920]
15. for the sake of time, space, and your sanity
16. In this case, the federal government raided a Californian’s medical marijuana supply. The Respondent, Mr. Raich [You may remember Mr. Gonzalez as President Bush’s Attorney General] claimed that the federal government had no legal authority prohibit his growth or use of medical marijuana that took place exclusively in the state of California. The Court disagreed with Mr. Raich.
17. 545 U.S. 1, 12-13 [2005]
18. cited in the paragraph above
19. In the 19th/early 20th century, the Commerce Clause cases were concerned with states protecting local industries and arbitrarily punishing competitive industries from foreign states[protectionism is as old as any type of politics]. Interestingly, the Vermont law exempts cheese and beer from the food products requiring GMO labeling.
20. Some critics of commerce clause jurisprudence find that contemporary courts decisions to be blatantly results-oriented, meaning that the courts will use the commerce clause to allow the federal government to regulate industries they find displeasing (marijuana, small business) but not for issues where they are sympathetic to the users (guns, big business), for instance see United States v. Alfonso D. Lopez, Jr., 514 U.S. 549 (1995), where the court struck down a federal law banning guns near schools. I would defend my justice friends with more passion if the distinctions drawn made more sense
21. also unlikely, even if it gets through the Senate
23. mandatory speech?
24. The Federal Meat Inspection Act
25. Poultry Products Inspection Act
26. genetically engineered
27. Grocery Manufacturers Association et al v. Sorrell et al, No. 5:2014cv00117 – Document 95 [D. Vt. 2015] p. 42
28. Mr. Dillard has more on the Vermont opinion
29. author of the Vermont opinion
30. not that the other GMO companies have much better reputations
31. rhymes with cagent dorange
32. rightly or wrongly
33. Source
34. I found each entry of this debate interesting; it is worth a look
35. My guess is that many of the anti-GMO folks have similar passions toward fracking. Disengagement and protest have not resulted in any less domestic drilling, nor any progress in having the drilling companies identify what is in the fracking liquids
36. also a silly Jimmy Kimmel video as a reward for all your hard work

ESAs, School Choice, and the Nevada Education Revolution

**2016 Update** Neal Morton of the RJ1)One of the few who survived the purge, not that I want to jinx it reports that oral arguments for Nevada’s school choice bill will be on Friday.

There are 2 lawsuits, both against the state. One was filed by a group of Carson City parents (Schwartz v. Lopez), the other by the ACLU (Duncan v. State of Nevada). Both will be argued on Friday.

I reread the essay below, and I do want to tell you all that I have moderated my stance a bit when it comes to school choice. As you’ll see, last year I found the idea absurd on its face. Between now and then, I’ve talked with Nevada parents that support this law, and they persuaded me to moderate my views a bit. I can come back to you one year later and admit that at least now I can understand why a parent of a child in a fail school would want this bill2)The fact this wasn’t readily obvious to me is a failure of the school choice campaign which seems to only discuss this problem on a child-to-child basis, rarely addressing the aggregate.

For those (likely childless like me) that are looking at education from an abstract, aggregate view3)To those parents out there who just want us to but out, we care too. I promise I am not just giving you a hard time, this bill looks as suspicious now as it ever has.

I’m sure there are a number of good-intentioned parents that just want their kids to go to the best school possible, and in the short term, supporting this bill seems like the best way to reach that goal. I’m not too concerned with these good folks.

I am worried though that there are people using our education policy debate to graft public money4)The attorney general is paying more than $500,000 dollars to outside (the state) counsel to argue the case (with your tax money). Also, as you will see, private firms get to take a transaction fee on your ESA, which of course is not defined in the law. I wish more people at the state level shared this concern.

I stand by everything I wrote last July, and we should insist that the state answer at least some of my questions below before radically upending our education system.

 

Is This What They Meant By School Choice?

The Nevada legislature had quite the busy 2015 session. Besides the new law reforming gun control, the most famous/notorious bill passed was Senate Bill (SB) 302, which creates education savings accounts (ESA) for those parents that want to take their kids out of public school.

From a perusal of the press writings on SB 302, there seems to be much more speculation than fact regarding the new program.

Today, I will take you through the text of SB 302 and discuss its advantages/disadvantages without (hopefully) degenerating into partisan name-calling.

 

How SB 302 Changes Education in Nevada

Well the change could be quite profound; it will all depend upon how the state implements SB 302, and how many folks decide to take advantage of the new program. But before all that, let us avoid getting the cart before the horse and take a glance at the text of SB 302.

The bill is quite a bit longer than others we have discussed on the Clear Counsel Legal Blog, so with the hopes of keeping you engaged, I have excerpted the most pertinent parts for you and your children5)read the entire bill here.

The fun begins in Section 7, which authorized the education savings accounts. Here is subsection 1:

 

Section 7.

1. Except as otherwise provided in subsection 10, the parent of any child required by NRS 392.040 to attend a public school who has been enrolled in a public school in this State during the period immediately preceding the establishment of an education savings account pursuant to this section for not less than 100 school days without interruption may establish an education savings account for the child by entering into a written agreement with the State Treasurer, in a manner and on a form provided by the State Treasurer. The agreement must provide that:

(a) The child will receive instruction in this State from a participating entity for the school year for which the agreement applies;

(b) The child will receive a grant, in the form of money deposited pursuant to section 8 of this act in the education savings account established for the child pursuant to subsection 2;

(c) The money in the education savings account established for the child must be expended only as authorized by section 9 of this act; and

(d) The State Treasurer will freeze money in the education savings account during any break in the school year, including any break between school years.

 

According the media accounts, the Nevada treasury plans on issuing debit cards to parents who opt-in to the program, and these cards will have the funds loaded onto them at an interval determined by the treasury.

The most controversial issue of Section 7 is the 100 days minimum attendance at a public school before a student will have access to the funds.  As I am sure you can guess, no one is happy about this term of the bill.

Smaller private schools are worried that hordes of students will unroll from their current private schools to meet the 100 day requirement, then come back in the spring term6)read more here  The smaller private schools claim that their finances will not be able to survive a mass exodus, and staff layoffs would ensue.

There is some talk of the state permitting kids to enroll in one public school class for the 100 days requirement, but the practicalities of that have not been worked out7)Would the kid go to public school from 8am to 9am, then head off to private school? Who will drive him? May the student just take a single, online, public-school course during the fall semester; is that sufficient? We are all waiting for clarification.

Folks that have been paying private school tuition are irritated as well; they claim they have been contributing toward public education all this time with no (direct) benefit to their own families.

Why should they have to jump through hoops to get what is rightfully theirs8)your property taxes do not just go toward educating your own children, but in educating the communities children. If that does not move the dial for you, think about how less likely an educated person will turn to a life of crime and debauchery. We all benefit from a safer community.?

The answer may be that the state is protecting against fraud.  Just imagine how fast this program would go belly-up if folks did not need to establish long term residency in the school districts.

What if a child is only partly educated in the public schools? Subsection 3 of Section 8 provides guidance:

 

Section 8:

3. If a child receives a portion of his or her instruction from a participating entity and a portion of his or her instruction from a public school, for the school year for which the grant is made, the grant required by subsection 1 must be in a pro rata based on amount the percentage of the total instruction provided to the child by the participating entity in proportion to the total instruction provided to the child.

Is “total instruction” this based on time or coursework? Who makes the determination of the pro-rata share? This has not been clarified 9)Rarely are laws put into effect too quickly, but this might be an example.  I see the potential for trouble.

 

How May You Utilize These Education Funds?

Those suspicious of the program are concerned that folks will open an education savings account and not properly allocate the funds towards their child’s education10)this would be fraud.  Luckily, SB 302 specifies how the funds may be spent:

 

Section 9

1. Money deposited in an education savings account must be used only to pay for:

(a) Tuition and fees at a school that is a participating entity in which the child is enrolled;

(b) Textbooks required for a child who enrolls in a school that is a participating entity;

(c) Tutoring or other teaching services provided by a tutor or tutoring facility that is a participating entity;

(d) Tuition and fees for a program of distance education that is a participating entity;

(e) Fees for any national norm-referenced achievement examination, advanced placement or similar examination or standardized examination required for admission to a college or university;

(f) If the child is a pupil with a disability, as that term is defined in NRS 388.440, fees for any special instruction or special services provided to the child;

(g) Tuition and fees at an eligible institution that is a participating entity;

(h) Textbooks required for the child at an eligible institution that is a participating entity or to receive instruction from any other participating entity;

(i) Fees for the management of the education savings account, as described in section 10 of this act;

(j) Transportation required for the child to travel to and from a participating entity or any combination of participating entities up to but not to exceed $750 per school year; or

(k) Purchasing a curriculum or any supplemental materials required to administer the curriculum.

 

A good start! In particular, I like the cap on transportation costs in subsection (j)11)the last thing we need is folks spending all their kids’ education money on new wheels.  The majority of the list seem like good areas to invest in for a child’s education, but how is a parent, who is not a professional educator or accountant, to know how much of the funds should be allocated to what area? Hopefully, the state plans on offering some guidance.

Additionally, subsection (k)’s reference to “supplemental materials” raises a few red flags.  Could not most items, if construed by a creative enough person, be considered “supplemental” to a child’s education? This type of catch-all may be taken advantage of unless the state clarifies.

How will the state enforce the terms of section 9? See Section 10:

 

Section 10.

1. The State Treasurer shall qualify one or more private financial management firms to manage education savings accounts and shall establish reasonable fees, based on market rates, for the management of education savings accounts.

2. An education savings account must be audited randomly each year by a certified or licensed public accountant. The State Treasurer may provide for additional audits of an education savings account as it determines necessary.

3. If the State Treasurer determines that there has been substantial misuse of the money in an education savings account, the State Treasurer may:

(a) Freeze or dissolve the account, subject to any regulations adopted by the State Treasurer providing for notice of such action and opportunity to respond to the notice; and (b) Give notice of his or her determination to the Attorney General or the district attorney of the county in which the parent resides.

 

I can hear my friends on the left getting upset already. The bill is supposed to provide more school choice for at-risk kids, but now “private financial management firms” are permitted to take “reasonable fees” to administer these accounts.  I caution my tree-loving friends; do not just assume this is just another scheme for private companies to get into the coffers of public education monies.  Give it at least until January to see what they mean by “reasonable fees,” but by all means, keep tabs on the going-ons.

Also, it is important to note that if you sign up for an education savings account, it is possible that your spending of the funds will be randomly audited at some point in the year. If I was using an education savings account during this first run, I would keep all my receipts given that there is no telling how strict an audit this may be.  The national press has been making hay out of this new program,12)apparently it is the most extreme voucher program in the country now so folks will be just itching to catch fraudulent behavior. Be careful!

 

A Few Questions About Nevada Education That Are More Important Than School Choice

Since the state has until January to implement the new program, there is not more information available into the mechanics of how the education savings accounts will be implemented.  We know that students with education savings accounts will have to take a math and English test each year to demonstrate progress, but it has not been clarified which test, and if all the students have to take the same test.

I think folks from all sides can agree that we need to improve our education system in Nevada. No matter the metric used13)Kids Count released a report at the beginning of the week ranking Nevada 47 out of 50 states, Nevada schools continue to be near the bottom of the rankings. From this starting point, each political side immediately begins talking dollar and cents.

My liberal friends want to spend unlimited amounts on education, while my conservative friends are irritated on how the money is being spent, and want to apply market dynamics to help improve the system.

I want to take a step back and ask the question that should come before all the money inquiries: what are our collective goals to be reached by our education spending? What do we want of our kids to be able to do by the time they graduate? Really try to be specific in your answer. Throwing money at unspecified problems will result in unspecified results.

Let me put it this way: what is the bare minimum we should expect of a graduating high school student? Is it imperative that kids be able to fluently understand all the different topics offered in the high schools, or are there necessary topics we need them to know, and anything additional would be gravy?

But an even more fundamental question: what do we want our kids to take away from more than 12 years of education? Civic engagement? A love of learning? The school curriculum is designed as if this will be the last chance for child to ever learn anything ever again; so instead of going into depth in a few topic areas,14)and thus exposing kids the highest level of joy that Plato spoke of, the joy of understanding we teach very little of a lot of topics.

Is this the best approach? Ask a random graduate of the Clark County school system a random science/social science/humanities question that was covered in high school. How much did s/he retain?

We may need to come to terms that we cannot teach kids everything they need to know about life in the 13 years we have to educate them. And if that is the case, I ask again, what should our goals be?

I applaud the Assembly and Governor for not being satisfied with the status quo and perhaps their bill will lead to a large growth in specialize charters (like Washington D.C. has) that can better meet the needs of a diverse student population.

But I worry that only students with very engaged parents to get the real benefits of the program.  For those kids with parents that are less engaged 15)for whatever reason, they will remain in public schools with even less funds16)I assume that the state will withdraw the funds from the schools with less students, without the fellow students who are most engaged in the curriculum.

The last thing we need are those kids already behind the others to fall even further back.

If the goal of our public education system is to help those who have manifested a desire to help themselves, then this might be the best course of action.

However, before I would radically alter our education framework, these are some of the questions I would ask. Then I would see if my proposed reforms were the most efficacious means to achieve my goals.

At least in Clark County, we have too many unengaged students in overcrowded classrooms taught by overextended/underpaid teachers.  A desire for change is not unreasonable.  Instituting change without knowing how or why, might be.

All the links you need for further reading:

The RGJ on parents demanding payments

The RGJ on the legislature passing the education reforms

EdWeek on the public policy implications

The Education Writers Association has 10 questions about the new law

The Washington Post on the political implications

The Washington Post has the statistics on education spending by state

US News thinks the new reform will increase inequality

The Las Vegas Sun on a potential Constitutional challenge

The National Review celebrates the new reforms (without calling anyone a Nazi)

The Text of SB 302

Footnotes   [ + ]

1. One of the few who survived the purge, not that I want to jinx it
2. The fact this wasn’t readily obvious to me is a failure of the school choice campaign which seems to only discuss this problem on a child-to-child basis, rarely addressing the aggregate
3. To those parents out there who just want us to but out, we care too. I promise I am not just giving you a hard time
4. The attorney general is paying more than $500,000 dollars to outside (the state) counsel to argue the case (with your tax money). Also, as you will see, private firms get to take a transaction fee on your ESA, which of course is not defined in the law
5. read the entire bill here
6. read more here
7. Would the kid go to public school from 8am to 9am, then head off to private school? Who will drive him? May the student just take a single, online, public-school course during the fall semester; is that sufficient? We are all waiting for clarification
8. your property taxes do not just go toward educating your own children, but in educating the communities children. If that does not move the dial for you, think about how less likely an educated person will turn to a life of crime and debauchery. We all benefit from a safer community.
9. Rarely are laws put into effect too quickly, but this might be an example
10. this would be fraud
11. the last thing we need is folks spending all their kids’ education money on new wheels
12. apparently it is the most extreme voucher program in the country now
13. Kids Count released a report at the beginning of the week ranking Nevada 47 out of 50 states
14. and thus exposing kids the highest level of joy that Plato spoke of, the joy of understanding
15. for whatever reason
16. I assume that the state will withdraw the funds from the schools with less students
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