Balkinization  

Monday, March 16, 2009

"every legal avenue"

Sandy Levinson

The New York Times reports that President Barack Obama has called on the Secretary of the Treasury to "pursue every legal avenue" to prevent the payment of bonuses by AIG to the architects of the world financial crisis we are now in. This suggests that lawyers will be asked to pore over existing legal materials and statutes to find out if they can be prevented (or if the Merrill Lynch bonuses can be recaptured).

But why isn't the "legal avenue" broad enough to drive a Mack truck through? Congress could pass an act literally in the next week stating that a) no contracts between banks or other financial entities receiving any federal bailout money and their employees relating to bonuses be implemented; and b) that all bonuses received by employees of banks and other financial entities receiving any federal bailout money since, say, Dec. 1, 2008 (this would apply to Merrill Lynch just fine) be taxed at the rate of 100%. If a state did the former, there would be a Contract Clause problem. But the Contract Clause prohibiting the "impairment" of contracts applies, textually, only to state governments, not to the national government.

I have run these suggestions by the "conlawprof" list, and no one (yet) has registered a constitutional objection. So why isn't President Obama or a relevant Senator or Representative taking the lead on such populist (and popular) legislation that would deprive the pigs of their ill-gotten (though not at the time illegal) gains? Why should we believe for a New York minute that the federal government has its hands tied with regard to the bonuses? Perhaps it would be bad policy (though I'm not sure why), but that has nothing at all to do with its constitutionality.

UPDATE: Anyone interested in this issue should log onto Glenn Greenwald's discussion, which certainly blows the whistle on the Administration's claims, led by Larry Summers, that adherence to contracts is sacred within the US. Why is President Obama allowing his Administration to appear like a Gulliver tied up by the Lilliputians? Are we really a paper tiger when faced with the pigs at the trough at the late Merrill Lynch and the all too alive AIG? If he can't stand up to them.....

UPDATE II: Today's NYTimes includes a column by Andrew Ross Sorkin defending paying the bonuses basically on the grounds of sanctity of contract and the potential instability of the government's putting all employment contracts at risk. I don't think much of this argument, especially given Greenwald's emphasis that no one seems to care about forcing labor unions to renegotiate contracts etc. But it's a well-written piece that's worth reading.



Comments:

Can Congress pass a law prohibiting academic institutions that receive federal money from paying law professors? Just wondering.
 

Glenn Greenwald, Talking Points Memo, Firedoglake, and other blogs have addressed the "so sorry, the law ties our hands" issue, and have all been dubious about the whole thing. Lawyers and those in the know were involved in this analysis. I bow to such expertise, which reaffirms my "bs alert" meter. After, the rule of law is clearly very important in these troubling times, right?

As to the Constitution, Justice Kennedy's concurrence in EASTERN ENTERPRISES v. APFEL seems a possible avenue of concern when dealing with federal power over contracts. That is, the idea there is some limits, putting aside the proposal here.

Or, we can just give the company immunity. Hey, worked for telecoms, right?
 

To respond to mis's snarky question, should Congress pass such a law, it would almost certainly be challenged on First Amendment grounds, as the undoubted motive for such a law would be retribution against (certain) law professors for saying outrageous things. There is no First Amendment issue raised by trying to prevent the bonuses.

Could Congress pass a law putting restrictions how much law professor can earn. Why not, especially if (and perhaps only if) it is preceded by a preamble about the "national emergency" facing the country and the need to engage in special measures. See, e.g., the 1934 Blaisdell case, which most certainly upheld an "impairment" of contract during the Depression.

I will try to track down some of the postings mentioned by Joe.
 

I'm pretty skeptical of this particular way to eliminate the payments. Broad as I think Congressional power is, this seems to me a due process violation (though I haven't read Blaisdell in quite a while and probably should before I print this; but I won't). I agree, though, with the more general point that the claims of "tied hands" are weak; where's Elihu Root when you need him?*

*There's a famous story about Root. John D. Rockefeller once said that "All of my other lawyers tell me why I can't do what I want to do. Mr. Root is the only lawyer who tells me how to do what I want to do."

Not that Root was an earlier version of John Yoo or anything.
 

that all bonuses received by employees of banks and other financial entities receiving any federal bailout money since, say, Dec. 1, 2008 (this would apply to Merrill Lynch just fine) at the rate of 100%

I am sure that there is supposed to be a “would be taxed” in that phrase somewhere.
 

This comment has been removed by the author.
 

Prof. Levinson:

To respond to [mls's] snarky question, should Congress pass such a law, it would almost certainly be challenged on First Amendment grounds, as the undoubted motive for such a law would be retribution against (certain) law professors for saying outrageous things. There is no First Amendment issue raised by trying to prevent the bonuses.

If they decided to only fund schools that didn't hire law professors, I don't see the problem. They are not obligated to fund anyone or everyone, and they can certainly put strings on that are "content-neutral" (or even just viewpoint-neutral).

And given Summum (which I personally think was a horrible decision), you might even argue that gummint has the right to choose its own "message" so that even viewpoint advocacy is now permissible.

Cheers,
 

Blaisdell provides interesting reading, from citation of the "The present nation wide and world wide business and financial crisis" on.

I'm not sure that it hurts the Prof's case ... its language could help it in various particulars.

As to mls' point, why would Congress pass such a law? Focus on the matter at hand please, including the congressional bailout that can reasonably include strings given the nature of the situation. And, note that the people are still getting paid.

But, if the funds has strings such as institutions that claimed to need them gave hefty bonuses to professors, sure, Congress might pass a law to restrict such bonuses, especially if it can be shown that they were incompetent or worse in some neutral fashion (e.g., research professors whose work product was shown to be shoddy or irregular).
 

Moi, snarky?

Well, maybe so. Its just that I can’t figure out why exactly it is that we are giving $30 billion to AIG in the first place. I know it is said that we have to do this to protect the financial system, but I don’t understand what that means, and, frankly, I am starting to suspect that most of the people who are saying it don’t know what it means either.

What do we think that AIG is going to do with the money if it doesn’t pay bonuses to its employees? Pay off CDOs to other financial institutions, right? So what makes us think that the money we “claw back” (yeah, I watch CNBC) from AIG execs won’t go to fatten the bonuses at Goldman Sachs or, worse, one of those damn French banks?

As I understand it, AIG has given three reasons why it needs to pay these bonuses: (1) it is contractually obligated to pay them; (2) some of the employees who would get these bonuses actually earned them; and (3) if it doesn’t pay them, it will have difficulty retaining key people it needs to run its business. None of these reasons appear facially ridiculous to me. There may be strong arguments on the other side, but all I hear are populist outrage and assertions that the government can break any contract it wants. If I were the cynical type, I might suspect that the people who are yelling about the bonuses are mostly interested in ensuring that the populist outrage is focused somewhere other than on them.

If the government wants to withhold some or all of the $30 billion unless AIG renegotiates its bonuses, I have no problem with that. But that is very different than having Congress abrogate the obligations of existing contracts, something that should be frowned even when law professors are not involved.
 

I think the gold clause cases are probably more applicable than Blaisdell.

If bonuses for employees of failed companies are against public policy it doesn't matter when they were signed.
 

Cathartic tho' a statutory clawback might be to enact, it is way overkill.

A simple witholding of the bonuses from the guys who ran the CDS boiler shop together with an action for Declarative Relief from the contract on any of the manifold equitable grounds would risk no cross-default bullshit argument from the Cochons Sans Frontieres, salve the public wound, and risk, at most, losing and paying attorney's fees to the unlikely prevailing poor unfortunate.
 

Just a second.

We're talking about (1) a 100% confiscatory tax, (2) enacted after such time as people would have acted on the presumption of being able to receive this compensation, (3) directed at a so specific a group that only one corporation falls within its ambit, right?

I assume that people would agree that, were this statute establishing a criminal penalty, it would be both a bill of attainder and an ex post facto law. So the question seems to be whether the sudden and retroactive imposition of a tax ought to be treated as if it were a criminal penalty.

I think that it is at least arguable that it should be. I say that because the next time that Republicans control both the Presidency and Congress, I don't want them to light on the bright idea of taxing all profits from provision of abortion services, contraceptive services, stem cell research, and God knows what else -- retroactively -- at 100% and then smile as they point to this as a precedent.
 

What do the contracts say? Surely the bonuses are not unconditional - if they were, they wouldn't be bonuses. If they are conditional, aren't the conditions based on the performance of the company?
 

Why can't the Justice Department encourage outside attorneys, armed with contingent fee agreements as was done in some of the successful tobacco cases, to chase after the firms paying such bonuses and the bonus recipients themselves? Surely outside attorneys can come up with clever arguments. How about creativity with failure of consideration or public policy arguments? Or the rights of the U.S. as equity holder in such firms?
 

What do the contracts say? Surely the bonuses are not unconditional

Yes, what do the contracts say. But also, surely taxpayer dollars are not unconditional.

I mean, c'mon.
 

Are the employees at this AIG division the equivalent of economic terrorists? Do they know "where the bodies are buried" and have leverage over the powers that be? Is it a matter of too big to fail or too big to be transparent?

Read the idiot Richard Cohen's column in the WaPo today (3/17/09) critical of Jon Stewart for piling on the hapless Cramer. (It's too bad Seinfeld had closed shop, else his writers could come up with a Kramer v. Cramer episode. Maybe SNL will follow up.) Cohen says the business media had nothing to do with the crash. Cohen points to the people in these firms too big to fail maintaining and losing their investments in their companies, sort of as an excuse. Did Cohen expect them to silently sell? That doesn't work, as certain disclosures are necessary, failing which possible jail time. If they had sold, that news would have brought about the crash earlier on Bush's watch. No, this has been an insiders game. Unfortunately the regulators are also insiders of a sort. And CNBC accommodates them all, as they are also insiders of a sort. Perhaps it is time to consider conspiracy theories, including with some on the government side. This is like the iceberg, with only 1/7th above the surface.
 

mls now discusses the matter at hand, ignoring the problem that the jab against law professors simply didn't follow. This is bad pool. Or, maybe it's a "hey, I can show some blind populist anger" turnabout is fair play lesson?

As to not understanding why sometimes letting things fail will cause major problems, including given how many ripples the failure of AIG will cause, this has been covered. But, the details, including how to save them, is difficult, surely.

But, I'm unsure if mls and some others are really looking into the matter fairly. Sorry, the criticism, including the updated link, is not just "populist anger," but addresses "the other side." Not that "populist anger" is unnatural in this case.

This includes the contractual obligations (that are rarely black/white, even when terms look to even some lawyers airtight), how AIG performed, etc.

As to Greg, the proposal terms does not just cover the acts of one company. And, it can be a civil matter, which are treated different ex post facto wise etc. than criminal ones.

Anyway, recent news suggest that blame can be put all around, including the government not properly providing adequate oversight, strings, and pressure way before now. Given this, populist anger (better known as democratic feedback) is appropriate.
 

Even assuming that the Contract Clause does not apply, I would suggest that abrogation of employment contracts in order to enrich the government's interest in AIG is an unconstitutional taking.

An interesting argument could also be made that the Ninth Amendment protects a right to contract (excepting fraud and unconscionable agreements) given that such a right has been well and long recognized by society.

To the extent that it was not retreated from, the poorly reasoned Blaisdell emergency exception is likely to be distinguished and limited to catastrophes on par with the Great Depression and not to garden variety recessions.

Sandy, I doubt the First Amendment would protect your tenure and wages from congressional predations so long as the statute was speech content neutral.

On the policy side, the socialist proposition that Congress has the power to abrogate and rewrite the contracts of any private entity that receives federal money ought to scare the hell out of the tens of millions of folks whose contract rights would then be engendered.
 

That must have been a quick trial preparation such that little Lisa's bro can jump from torture to AIG so quickly:

"Even assuming that the Contract Clause does not apply, I would suggest that abrogation of employment contracts in order to enrich the government's interest in AIG is an unconstitutional taking."

If the government as an equity owner takes action to protect its interest in AIG, how is that a taking? If a non-governmental equity owner takes action to protect his interest, that does not trigger the 5th and 14th Amendments taking clauses. The government can wear two hats. The "torture strategy" being used by AIG doesn't pass the smell test just as little Lisa's bro once again fails the constitutional test.
 

I'm actually sympathetic with Greg's argument that one might well confiscatory taxation as a "punishment" subject to the ex post facto clause. But, for better and worse, it's been settled now for over 200 years that the clause applies only to what courts denominate "criminal penalties," and taxation doesn't count. The most outrageous applications of the criminal/civil distinction include court's failing to view deportation as a punishment and to label collateral review on habeas corpus as civil (and thus no entitlement to an attorney, even on death row). The legal mind at work....
 

what's disturbing is the fact that geithner knew about this ahead of time and either expected these bonuses to be paid or he was lied to.

has he bluntly claimed to have been lied to?

there's no question that the appropriate way to have handled this was to have re-written those contracts ahead of time as a pre-condition for keeping AIG out of bankruptcy.

others have noted that there may be instances of fraud here that will be covered up by keeping the same villains who created this fiasco in charge of "unwinding" it.

while i'm a little troubled by the precedent of singling out a group for punitive taxation, i think here it is richly deserved when the taxpayer is coughing up the rescue funds.

i've little pity left over for the bankers who caused this mess and i would favor 100% taxation of any "bonuses" paid with taxpayer money. apparently there's a movement afoot in congress to this effect. talk about a bill ripe for bi-partisanship.
 

Shag from Brookline:

Read the idiot Richard Cohen's column in the WaPo today (3/17/09) critical of Jon Stewart for piling on the hapless Cramer.

My take on that here. Send a note to Cohen as well. ;-)

Cheers,
 

As to the second update, that article has to be read to be believed. To state just one problem, see here for the double standard and other b.s. found there.

As to the civil/criminal divide, I am sympathetic to SL's comments, but note we should have perspective as to the civil burden here. It is not "100%" of their salary or anything. It isn't deporting the people involved. It isn't a matter of seizing their homes etc.

Also, it isn't even criminal in fact, as "civil" judgments often are. Shag and others address that even a due process or takings argument (to bring up Apfel again) is difficult hard to prove.
 

Prof. Levinson:

Thanks for the partial support; I wish that you had commented on my parade of horribles, though. Let's say that I think that everyone who worked for AIG Financial Products, and whoever at AIG HQ approved their actions, should forfeit every dime in salary they ever made by passing a retroactive tax bill, and I specifically say it is because I think they are guity of fraud. Would that catch anyone's attention?

Surely there is some point at which the combination of bill-of-attainderlike, ex-post-facto, explicitly punitive, maximal imposition of a "civil penalty" via taxation becomes unconstitutional. (Perhaps it would at that point become a taking, in which event we have to add that the government intends not to offer compensation.)

Because this combines the above characteristics, this ought to be just about the hardest case for the notion that a civil penalty cannot be subject to some combination of the ex post facto and bill of attainder clause. Do any of the tax policy cases address total confiscation of huge bonuses for people not convicted of anything? (Rep. Gary Peters has introduced legislation that would do exactly that.) At some point, the pretext that the tax -- which isn't motivated by raising revenue, shifting burdens, increasing or decreasing any taxable activity, or any of the other standard rationales for tax policy -- is not a punishment ought to become untenable.

As for Joe's point that they aren't taking away a house or something, they're taking away (to understate things) more money than any house I've owned has cost, and surely enough to escape any de minimus argument.

Finally, as much as I appreciate Glenn Greenwald's work, he is entirely off base here. The same principle applies to AIG and the auto companies: if both sides don't agree to renegotiate the contract, you can't impose a new contract on them.

In the latter case, the UAW agreed to a new contract because it had a stake in the continued existence of these jobs. Had they not, and had Congress held firm to such givebacks being a firm prerequisite for a bailout, the result would have been no bailout.

Here, the AIGFP folks don't give a fig whether AIG lives or dies so they have no incentive to renegotiate; if Congress conditions a bailout on their agreement to renegotiate, the result is no bailout.

The law applies identically to each; the difference is purely in the willingness of the parties to renegotiate. Had the UAW held firm, obtained the right to bonuses, and Congress passed a bailout anyway, Congress's hands would indeed be tied if they tried to go back and take away UAW members' bonuses now.

They could break the contracts, sure, but they would owe compensation. The exception would be if there were fraud. Sadly, while AIG is not in bankruptcy, its own collusion with its subsidiary make arguing for reformation of the contract due to fraud an unlikely outcome due to its own unclean hands.
 

Shag from Brookline said...

BD: "Even assuming that the Contract Clause does not apply, I would suggest that abrogation of employment contracts in order to enrich the government's interest in AIG is an unconstitutional taking."

If the government as an equity owner takes action to protect its interest in AIG, how is that a taking?


If the government is acting as just another equity owner in AIG, then it should be liable for the contracts entered into by AIG.

If the government is acting as the state to eliminate the property rights of AIG employees to enhance its equity position in AIG, that appears to be a taking.
 

From The Hill:

“On Capitol Hill, dozens of lawmakers proposed competing bills to tax AIG in order to make up for the bonuses, suggesting they have little faith in Obama’s call for his administration to use every “legal avenue” to retrieve the money.

Sen. Charles Schumer (N.Y.) and other Senate Democrats started the bidding with a tax as high as 91 percent to recoup AIG bonuses if executives refuse to give them up.

Later Tuesday afternoon, the dean of the House, Rep. John Dingell (D-Mich.), upped the ante to 95 percent. Then Rep. Steve Israel (N.Y.) and a band of fellow House Democrats upped it even more at a press conference where they suggested a 100 percent tax on the bonuses from bailed-out companies.

House Speaker Nancy Pelosi (D-Calif.) topped that off with a demand that the House Ways and Means Committee come up with legislation this week.”

Some are suggesting that this legislation would be a bill of attainder, but no one is in the mood to worry about legal technicalities like that. And if the courts should uphold this tax, think of how much fun it will be when people start proposing a 100 percent tax on Members of Congress who voted for the bailout.

Another problem is that some of the bonus recipients live in London, so I guess we will have to resort to extraordinary rendition for them.

Meanwhile, on the other side of the aisle, Senator Grassley suggested that AIG executives commit suicide.

That’s the problem with Republicans, always relying on volunteerism.
 

Little Lisa's bro, after a grueling trial, comes back with:

"If the government is acting as just another equity owner in AIG, then it should be liable for the contracts entered into by AIG."

How is the equity owner "liable" for these contracts? Is this the corporate law in Colorado, where trial lawyers cross examine trees for hitting their clients's cars? The equity owner may take "subject" to contracts that were lawfully entered into by the corporate entity. But equity holders do have some rights in that capacity. Let's get the facts on whether these contracts were lawfully entered into. Perhaps there is liability to the equity owners on the part of the officers/directors authorizing such contracts. Perhaps such contracts, under the circumstances, were against public policy. I wonder what some depositions and other discovery might reveal. Remember the tobacco cases. Legal theories may develop that will blur all the black letter law little Lisa's bro relies upon in the simplicity of his legal thinking.
 

The problem with Greg's "parade of horribles," is that it is not really what is being proposed.

We are NOT talking about "should forfeit every dime in salary they ever made" ... so, yes, monetary burdens can lead to valid constitutional claims (as noted by some here), but there is a degree involved.

I do think the best path involves targeting AIG as a whole, not those holding contracts invalid in particular. Though apparently there is a way to arrange things for the company to say "no bonus or we will restructure so your section will be bankrupt."

[The fact the unions agreed was noted. I'm sure that if AIG wanted, and legitimate pressure was put on them to "want" it, AIG could have negotiated here too. It wasn't "sorry nothing we can do."]

As to the worth of the house argument. Some people are taxed more than others make. This doesn't make make the tax unconstitutional. Proportionally, for the people involved, it is not akin to losing a house. A house sometimes protected even in bankruptcy.

As to fraud, the more things are being examined, the more this seems possible. As to Glenn being wrong, his latest entry links to a NYT lawyer debate that suggests he has company in his wrongness. This includes Charles Fried being suspicious of AIG's argument.
 

Shag raises various interesting questions. Also, the citation of the gold clause cases is interesting. More info is required to make a final determination of what should occur, clearly.
 

This comment has been removed by the author.
 

Not addressing the confiscatory tax issue for the moment, and leaving aside the inapplicability to the federal government of the Contracts Clause--as regards Blaisdell as precedent, might I suggest that to consider it so for the wholesale abrogation of the AIG contracts requires a fair bit of stretching?

As someone else rightly mentioned, Blaisdell IS a "poorly reasoned" decision--it utilizes the old Constitution is not a suicide pact and a Lincolnesqe "all the laws but one" premise and a great deal of dictum as, I would suggest, obfuscatory tactic to do what it thought was "right." Having said that, the holding is somewhat limited-- and careful not to tread on the ground that the AIG bonus payments would.

Dictum aside, the decision upholds only the lengthening of the redemption period for mortgage foreclosure. But the decision, faulty as it may be, is clear to point out that that the redemption extension is "a temporary restraint of enforcement."

The Court further notes that:
"As already noted, the integrity of the mortgage indebtedness is not impaired; interest continues to run; the validity of the sale and the right of the mortgagee- purchaser to title or to obtain a deficiency judgment, if the mortgagor fails to redeem within the extended period, are maintained; and the conditions of redemption, if redemption there be, stand as they were under prior law. The mortgagor during the extended period is not ousted from possession, but he must pay the rental value of the premises as ascertained in judicial proceedings and this amount is applied to the carrying of the property and to interest upon the indebtedness." 290 U.S. 398 (1934)

I think the instances are distinguishable-- and the cheat of an inch won't steal the yard.
 

The NYT has an OpEd dated March 17, 2009, by Prof. Lawrence A. Cunningham titled "A.I.G.'s Bonus Blackmail" at

http://www.nytimes.com/2009/03/18/opinion/18cunningham.html?_r=1&ref=opinion

that better articulates than I in suggesting that the fat lady has not yet sung on the the AIG bonus controversy. I continue to be amazed at the creativity of the legal profession at times like these. Remember, there may be a Plan B: Contingency lawyers. With all the layoffs of lawyers lately, this could bring back their full employment as well as full disclosure and transparency of TARP and FED fundings in these crises. I can just hear those whistles blowing. Who knows, maybe a "smoking gun" will surface.
 

Dan Froomkin's WaPo White House Watch yesterday (3/17/09) has links to great political cartoons on the AIG bonuses, at:

http://voices.washingtonpost.com/white-house-watch/

Just scroll down to "Cartoon Watch" and link and laugh.
 

I read Professor Cunningham’s op-ed and I agree that it provides a useful and sober perspective on the bonus issue.

First, Cunningham is dismissive of legislative proposals to impose 100 percent taxes and the like.

Second, he notes that “moral outrage and public rebuke do not provide legal grounds for backing out of a contract.” Agreed.

Third, he observes that “[i]f the government is serious about finding a legitimate basis for abrogating these payments, officials must look to basic legal principles.”

Of course, the government is not serious about finding a legitimate basis for abrogating these payments. The government is serious about making sure that the “moral outrage and public rebuke” do not start turning in the direction of the government. Specifically, the government does not want the public to start asking questions like (1) why did the government agree to bail out AIG in the first place?; (2) why was the government unwilling to let AIG go into bankruptcy, which would have provided a clear legal basis not only for reducing or eliminating bonuses, but for requiring AIG shareholders and bondholders to share the losses as well?; (3) if the government thinks that the AIG bonuses are so bad, why didn’t it do something about them before making multibillion dollar payments to AIG?; (4) what is it that the government expected/wanted AIG to do with the taxpayer funds it received?; (5) if the government’s primary/sole purpose in bailing out AIG was to ensure that its CDOs were paid off, why didn’t the government pay off these obligations directly, instead of using AIG as a conduit?; and (6) if the government is so concerned about AIG bonuses, is it equally concerned about bonuses at the financial institutions, including foreign banks, which are the beneficiaries of the CDO payoffs financed by the US taxpayer?

One would think that the authors of this blog would have an interest in asking these fundamental questions. When the bailout was initially proposed, they viewed it as a hasty and ill-considered congressional abdication of authority and oversight in the face of a 9/11-type panic induced and encouraged by the executive. I wonder what has changed in the interim.

Fourth, Cunningham points out that one can only determine the validity and strength of the contractual obligations at issue here by reading each individual contract and considering the circumstances of each individual employee. Obviously this is correct. Certainly, if it has not done so already, AIG should review carefully the larger bonuses, particularly those paid to employees in the financial products division, to see if there are reasonable grounds for contesting them.

I am somewhat less comfortable with the idea of AIG being required by the federal government to “fly speck” each bonus contract with an eye toward finding any plausible grounds for backing out of its obligations. Sure, we all know that a lawyer can pick up virtually any contract and find ambiguities or issues that can be exploited for the benefit of his client. The more “creative” (to use Shag’s word) the lawyer is willing to be, the more he will find. (I take it, by the way, that this is the “good” type of creative lawyering, as opposed to the kind that should get you disbarred or land you in a war crimes tribunal.)

To have the President of the United States demand this kind of scrutiny be given to a discrete group of private contracts seems an awful lot like, say, the President directing the IRS to audit the tax returns of the bonus recipients. And we wouldn’t want that, would we?

Regardless, once the bonus issues is resolved and/or the public/media outrage burns out, I hope that people will start asking more probing and significant questions about the bailout.
 

mls "spins" Cunningham's OpEd in dizzying fashion. Perhaps others may read Cunningham differently. The concept of contracts against public policy is not etched in stone in the U.S. Constitution. This aspect of contract law has evolved based upon changing circumstances. Or does mls believe that the "Contract Clause" locked in the meaning of contract law upon ratification of the Constitution? Those relying upon simple "black letter" law may get red in the face with lawyerly creativity.
 

Shag:

Precisely which public policy do you claim would make unenforceable an employment contract with a bonus provision?
 

Precisely which public policy do you claim would make unenforceable an employment contract with a bonus provision?

Chapter 11?
 

(1) why did the government agree to bail out AIG in the first place?; (2) why was the government unwilling to let AIG go into bankruptcy, which would have provided a clear legal basis not only for reducing or eliminating bonuses, but for requiring AIG shareholders and bondholders to share the losses as well?

While some of your other questions are reasonable, the answers to these two are well-known and related: bankruptcy is a default under the CDOs, meaning it would set off a chain reaction among holders world-wide. For better or for worse, the Treasury decided that it made more sense to avoid toppling the first domino.
 

Shag from Brookline:

ittle Lisa's bro, after a grueling trial, comes back with:

"If the government is acting as just another equity owner in AIG, then it should be liable for the contracts entered into by AIG."

How is the equity owner "liable" for these contracts?


Yet another example as to why anyone would be ill-served in seeking someone's DUI services. One of the major points to incorporation is to shield the owners from personal liability for claims against the company. If a certain someone doesn't know this, it is further evidence to support the proposition that this person had someone else take the bar exam for him. I mean, this is stuff so basic that any lawyer that said what he said above ought to be considered for bar sanctions and/or discipline.

Cheers,
 

Joe:

I'm sure that if AIG wanted, and legitimate pressure was put on them to "want" it, AIG could have negotiated here too. It wasn't "sorry nothing we can do."

The problem here is that the culprits here would be more than glad to just walk away from the smoking wreckage with their million dollar "bonuses" ... what they don't want it to give those up. Given their position, they don't give a fig whether the company goes under or gets sanctions or whatever, they just want their money from the corpse ... first and before any other 'creditors' slice it up.

Unfortunately (and it's a well-kept secret), the incestuousness of ODMs and boards has them giving each other big slices of companies often at the expense of the company and the employees, and they put in these fat "bonuses" and "termination" agreements ("golden parachutes" or "golden handcuffs") so they are in line first to feast on the corpse ... and are immune from any responsibility and accountability because they'll get their millions even if terminated ... absent some outright fraud (and a willingness of their buddies in the ODM Society to hold them accountable for their failures).

Cheers,
 

Greenwald's comparison to union contracts (and yours by endorsement) is completely off-point. The argument for reducing benefits under the union contracts was that they represented a significant element of the automakers' costs and that the automakers would continue to suffer significant financial problems unless those obligations were reduced. I don't know anything about the automakers' financials, but that was the argument.

By contrast, the bonus money at stake in the case of AIG represents an insignificant fraction of the bailout money. Because the savings would be so small, provoking litigation and further reducing employee morale would probably be a net loss for the shareholders, including the taxpayers. The only reason not to pay these bonuses is a desire for retribution and revenge. And those do not make for sound business judgment.
 

mls:

I am somewhat less comfortable with the idea of AIG being required by the federal government to “fly speck” each bonus contract with an eye toward finding any plausible grounds for backing out of its obligations.

Do you seriously think that any valid (non-fraudulent) "bonus contract" can subsume the behaviour we've seen?!?!? As you know, a contract requires "performance". If it doesn't, it simply isn't a contract.

Cheers,
 

Elliot:

Because the savings would be so small, provoking litigation and further reducing employee morale would probably be a net loss for the shareholders, including the taxpayers....

"[F]urther reducing employee morale"?!?!? I don't get it. And neither does the American public. And also, $167M buys a lot of lawyers. Think of it as a "stimulus plan" for the mordant legal profession (which, as I see from the daily "Law.com" e-zine, is having its own layoffs).

... The only reason not to pay these bonuses is a desire for retribution and revenge. And those do not make for sound business judgment.

It's the "no spanking" rule brought to it's reductio ad absurdum. The reason not to pay the "bonuses" is that the bonuses were unwarranted under any rational interpretation of such (other that a "you scratch my back, I'll scratch yours" looting of the company as I commented above). "[P]erformance"?!?!? And "[R]etention"? If they are getting paid to be "retained", they damn well should stay retained (under an unbreakable 'contract'), and use their prodigious talents to good effect in reducing housekeeping expenses by cleaning the toilets for the next five years.

Cheers,
 

I see. $167 million to too much money when it comes to AIG bonuses, but not for the NEA in the so-called "Stimulus Plan"?
 

This comment has been removed by the author.
 

Go ahead, Arne. You can say it ...
 

Little Lisa's bro looks like he might want to cash in on my theories as a free rider when Plan B goes into effect:

"Precisely which public policy do you claim would make unenforceable an employment contract with a bonus provision?"

Sorry, he'll have to come up with his own theories rather than ride coattails for free. Besides, I'm trying to encourage creativity, not bury it in a backpack of lies. Little Lisa's bro must be a heck of a poker player - NOT!
 

Let's harken back to the days of Pres. Ronald Reagan's exposure of welfare queens with their Cadillacs. Oh, how Ronnie would have railed against these AIG bonuses paid from corporate welfare funds. Why, Ronnie would have stopped dead in its tracks corporate welfare as we now know it. Let's see, how many Cadillacs could be purchased with $165 million? Speaking of free markets ....
 

The "populist anger" (said with a sneer half the time) has helped to start force into the open many things that even the Obama Administration apparently was wary of addressing (see pressure on Dodd etc.) IOW, it might have started with a tree, but the forest is coming into view.

To reference Arne's reply, it isn't just the company that is at fault here, their government enablers are too. This is an old story by now. Since Obama plays by "centrist" rules, he too will have to be kept an eye on.

The patient is not healed just because the bullet is removed. S/he is also not the same.
 

I'll tell you what makes my ass chew gum:

The possibility that Cassano at AIG is writing all these CDS with full knowledge that AIG cannot cover them AND with a pretty strong hunch--accurate it turns out--that AIG will be regarded by the USG to be "too big to fail."

What better way to privatize the gains and socialize the losses than to merge, merge & merge until you're "too big to fail"?

There was a time when we had anti-trust laws in this country....
 

Mark- thanks for the response. I take it that what you mean is that AIG’s bankruptcy would constitute a default event for purposes of contracts written in its Financial Products Division. I have not seen this emphasized as a reason for preventing AIG from going into bankruptcy. It does not appear to be mentioned in Liddy’s prepared testimony from yesterday. I did find it under the second bullet point on page 17 of AIG’s “Risk and Bankruptcy Report.” This comes after a long parade of horribles chiefly involving risks to AIG’s insurance businesses, particularly the idea that there would be a “run on the bank” in the life insurance industry.

There is, of course, an important distinction between bankruptcy as a technical default event and bankruptcy as an event that would cause massive panic and loss of investor confidence. I am not sure that the former is that big of a problem. Bankruptcy would give the counterparties the right to terminate their contracts, but this would not give them any leverage over the US government, which is where they have to look if they want their money. If the government is providing AIG financial assistance to liquidate its portfolio, but dictating the terms on which it can be obtained, I don’t know that it matters that much whether AIG is in bankruptcy (or receivership, which is another option) or not.

It is the latter which is repeatedly emphasized as the reason for bailing out AIG. But this is based on the assumption that a bankruptcy necessarily means an “uncontrolled failure,” as opposed to an orderly liquidation of AIG’s obligations, in which the government would provide financial assistance while still ensuring that there is some reasonable allocation of losses among the various interested parties.

In the current situation, the government has given AIG a huge amount of money, but there appears to be no mechanism to ensure that losses are shared by others, such as AIG shareholders, bondholders and counterparties. Understood properly, the bonus situation is just a small illustration of that much larger problem. For example, it was reported yesterday that of the bailout money is being used to compensate hedge funds that took out naked short positions in mortgage-backed securities. This would seem to be a much larger issue, which may get no attention because of all of the focus on the bonuses.

Perhaps I have not asked all the right questions, but I think that there are a lot of questions that need to be asked. I fully sympathize with the “populist outrage” over the bonuses, which is completely understandable. But I am wary that this outrage will be manipulated to distract from, rather than illuminate, the real issues here. As I have mentioned before, I believe that there needs to be a thorough and comprehensive investigation of the entire financial crisis.
 

As I understand the bankruptcy problem, it's the concern that credit markets would freeze up (more) because the loss of AIG's "insurance" would make the CDOs even less valuable than they are now in real terms.

Now, if the government were to guarantee AIG entirely, then you're right that there's no real difference between the current situation and bankruptcy. As I understand it, though, there are lots of people who continue to believe that many of these derivatives will eventually pay off. Thus, forestalling bankruptcy will in the long run be cheaper.

At least that's the theory.
 

"I am wary that this outrage will be manipulated to distract from, rather than illuminate, the real issues here."

Your first comment (and more probably) does just that.

Also, the outrage has led to further investigation that has been quite illuminating, including toward addressing broader issues (such as not giving out money w/o proper strings and full and open due diligence).

Just look at the discussion of contracts, taxation and bankruptcy. These go much beyond the issue of bonuses per se. We often have to focus on a point first before dealing with broader themes. It can be dangerous, granted, but it can be helpful too.
 

mesothelioma Mesotheliomais a form of cancer that is almost always caused by exposure to Asbestos In this disease, malignant cells develop in the mesothelium, a protective lining that covers most of the body's internal organs. Its most common site is the pleura (outer lining of the lungs and internal chest wall), but it may also occur in the peritoneum (the lining of the abdominal cavity), the heart the pericardium (a sac that surrounds the heart or tunica vaginalis.
Most people who develop
mesothelioma have worked on jobs where they inhaled asbestos particles, or they have been exposed to asbestos dust and fiber in other ways. Washing the clothes of a family member who worked with asbestos can also put a person at risk for developing Mesothelioma Unlike lung cancer, there is no association between mesothelioma and smoking but smoking greatly increases risk of other asbestos induced cancer.Compensation via
Asbestos funds or lawsuits is an important issue in
mesothelioma The symptoms of
mesothelioma include shortness of breath due to pleural effusion (fluid between the lung and the chest wall or chest wall pain, and general symptoms such as weight loss. The diagnosis may be suspected with chest X-ray and CT scan and is confirmed with a biopsy (tissue sample) and microscopic examination. A thoracoscopy inserting a tube with a camera into the chest) can be used to take biopsies. It allows the introduction of substances such as talc to obliterate the pleural space (called pleurodesis, which prevents more fluid from accumulating and pressing on the lung. Despite treatment with chemotherapy, radiation therapy or sometimes surgery, the disease carries a poor prognosis. Research about screening tests for the early detection of mesothelioma is ongoing.
Symptoms of mesothelioma may not appear until 20 to 50 years after exposure to asbestos. Shortness of breath, cough, and pain in the chest due to an accumulation of fluid in the pleural space are often symptoms of pleural
mesotheliomaSymptoms of peritoneal
mesothelioma include weight loss and cachexia, abdominal swelling and pain due to ascites (a buildup of fluid in the abdominal cavity). Other symptoms of peritoneal
mesothelioma may include bowel obstruction, blood clotting abnormalities, anemia, and fever. If the cancer has spread beyond the mesothelium to other parts of the body, symptoms may include pain, trouble swallowing, or swelling of the neck or face.
These symptoms may be caused by
mesothelioma or by other, less serious conditions.
Mesothelioma that affects the pleura can cause these signs and symptoms:
chest wall pain
pleural effusion, or fluid surrounding the lung
shortness of breath
fatigue or anemia
wheezing, hoarseness, or cough
blood in the sputum (fluid) coughed up hemoptysis
In severe cases, the person may have many tumor masses. The individual may develop a pneumothorax, or collapse of the lung The disease may metastasize, or spread, to other parts of the body.
Tumors that affect the abdominal cavity often do not cause symptoms until they are at a late stage. Symptoms include:
abdominal pain
ascites, or an abnormal buildup of fluid in the abdomen
a mass in the abdomen
problems with bowel function
weight loss
In severe cases of the disease, the following signs and symptoms may be present:
blood clots in the veins, which may cause thrombophlebitis
disseminated intravascular coagulation a disorder causing severe bleeding in many body organs
jaundice, or yellowing of the eyes and skin
low blood sugar level
pleural effusion
pulmonary emboli, or blood clots in the arteries of the lungs
severe ascites
A
mesothelioma does not usually spread to the bone, brain, or adrenal glands. Pleural tumors are usually found only on one side of the lungs
Diagnosing
mesothelioma is often difficult, because the symptoms are similar to those of a number of other conditions. Diagnosis begins with a review of the patient's medical history. A history of exposure to asbestos may increase clinical suspicion for
mesothelioma A physical examination is performed, followed by chest X-ray and often lung function tests. The X-ray may reveal pleural thickening commonly seen after asbestos exposure and increases suspicion of
mesothelioma A CT (or CAT) scan or an MRI is usually performed. If a large amount of fluid is present, abnormal cells may be detected by cytology if this fluid is aspirated with a syringe. For pleural fluid this is done by a pleural tap or chest drain, in ascites with an paracentesis or ascitic drain and in a pericardial effusion with pericardiocentesis. While absence of malignant cells on cytology does not completely exclude
mesothelioma it makes it much more unlikely, especially if an alternative diagnosis can be made (e.g. tuberculosis, heart failure
If cytology is positive or a plaque is regarded as suspicious, a biopsy is needed to confirm a diagnosis of
mesothelioma A doctor removes a sample of tissue for examination under a microscope by a pathologist. A biopsy may be done in different ways, depending on where the abnormal area is located. If the cancer is in the chest, the doctor may perform a thoracoscopy. In this procedure, the doctor makes a small cut through the chest wall and puts a thin, lighted tube called a thoracoscope into the chest between two ribs. Thoracoscopy allows the doctor to look inside the chest and obtain tissue samples.
If the cancer is in the abdomen, the doctor may perform a laparoscopy. To obtain tissue for examination, the doctor makes a small incision in the abdomen and inserts a special instrument into the abdominal cavity. If these procedures do not yield enough tissue, more extensive diagnostic surgery may be necessary.
There is no universally agreed protocol for screening people who have been exposed to
asbestosScreening tests might diagnose mesothelioma earlier than conventional methods thus improving the survival prospects for patients. The serum osteopontin level might be useful in screening asbestos-exposed people for
mesotheliomaThe level of soluble mesothelin-related protein is elevated in the serum of about 75% of patients at diagnosis and it has been suggested that it may be useful for screening. Doctors have begun testing the Mesomark assay which measures levels of soluble mesothelin-related proteins (SMRPs) released by diseased mesothelioma cells
Incidence
Although reported incidence rates have increased in the past 20 years, mesothelioma is still a relatively rare cancer. The incidence rate is approximately one per 1,000,000. The highest incidence is found in Britain, Australia and Belgium: 30 per 1,000,000 per year. For comparison, populations with high levels of smoking can have a lung cancer incidence of over 1,000 per 1,000,000. Incidence of malignant mesothelioma currently ranges from about 7 to 40 per 1,000,000 in industrialized Western nations, depending on the amount of asbestos exposure of the populations during the past several decades. It has been estimated that incidence may have peaked at 15 per 1,000,000 in the United States in 2004. Incidence is expected to continue increasing in other parts of the world. Mesothelioma occurs more often in men than in women and risk increases with age, but this disease can appear in either men or women at any age. Approximately one fifth to one third of all mesotheliomas are peritoneal.
Between 1940 and 1979, approximately 27.5 million people were occupationally exposed to asbestos in the United States.[ Between 1973 and 1984, there has been a threefold increase in the diagnosis of pleural mesothelioma in Caucasian males. From 1980 to the late 1990s, the death rate from mesothelioma in the USA increased from 2,000 per year to 3,000, with men four times more likely to acquire it than women. These rates may not be accurate, since it is possible that many cases of mesothelioma are misdiagnosed as adenocarcinoma of the lung, which is difficult to differentiate from mesothelioma.
Working with asbestos is the major risk factor for mesothelioma. A history of asbestos exposure exists in almost all cases. However, mesothelioma has been reported in some individuals without any known exposure to asbestos. In rare cases, mesothelioma has also been associated with irradiation, intrapleural thorium dioxide (Thorotrast), and inhalation of other fibrous silicates, such as erionite.
asbestos
is the name of a group of minerals that occur naturally as masses of strong, flexible fibers that can be separated into thin threads and woven.
asbestos
has been widely used in many industrial products, including cement, brake linings, roof shingles, flooring products, textiles, and insulation. If tiny asbestos particles float in the air, especially during the manufacturing process, they may be inhaled or swallowed, and can cause serious health problems. In addition to mesothelioma, exposure to asbestos increases the risk of lung cancer, asbestosis (a noncancerous, chronic lung ailment), and other cancers, such as those of the larynx and kidney.
The combination of smoking and
asbestos exposure significantly increases a person's risk of developing cancer of the airways (lung cancer bronchial carcinoma). The Kent brand of cigarettes used
mesothelioma in its filters for the first few years of production in the 1950s and some cases of
mesothelioma have resulted. Smoking modern cigarettes does not appear to increase the risk of mesothelioma.
Some studies suggest that simian virus 40 may act as a cofactor in the development of mesothelioma.
Asbestos was known in antiquity, but it wasn't mined and widely used commercially until the late 1800s. Its use greatly increased during World War II Since the early 1940s, millions of American workers have been exposed to asbestos dust. Initially, the risks associated with
asbestos exposure were not publicly known. However, an increased risk of developing mesothelioma was later found among shipyard workers, people who work in asbestos mines and mills, producers of asbestos products, workers in the heating and construction industries, and other tradespeople. Today, the U.S. Occupational Safety and Health Administration (OSHA) sets limits for acceptable levels of
asbestos exposure in the workplace, and created guidelines for engineering controls and respirators, protective clothing, exposure monitoring, hygiene facilities and practices, warning signs, labeling, recordkeeping, and medical exams. By contrast, the British Government's Health and Safety Executive (HSE) states formally that any threshold for
mesothelioma must be at a very low level and it is widely agreed that if any such threshold does exist at all, then it cannot currently be quantified. For practical purposes, therefore, HSE does not assume that any such threshold exists. People who work with
asbestos wear personal protective equipment to lower their risk of exposure. Recent findings have shown that a mineral called erionite has been known to cause genetically pre-dispositioned individuals to have malignant mesothelioma rates much higher than those not pre-dispositioned genetically. A study in Cappadocia, Turkey has shown that 3 villiages in Turkey have death rates of 51% attributed to erionite related
mesotheliomaExposure to
asbestos fibres has been recognised as an occupational health hazard since the early 1900s. Several epidemiological studies have associated exposure to asbestos with the development of lesions such as asbestos bodies in the sputum, pleural plaques, diffuse pleural thickening, asbestosis, carcinoma of the lung and larynx, gastrointestinal tumours, and diffuse mesothelioma of the pleura and peritoneum.
The documented presence of
asbestos fibres in water supplies and food products has fostered concerns about the possible impact of long-term and, as yet, unknown exposure of the general population to these fibres. Although many authorities consider brief or transient exposure to
asbestos fibres as inconsequential and an unlikely risk factor, some epidemiologists claim that there is no risk threshold. Cases of mesothelioma have been found in people whose only exposure was breathing the air through ventilation systems. Other cases had very minimal (3 months or less) direct exposure.
Commercial
asbestos mining at Wittenoom, Western Australia, occurred between 1945 and 1966. A cohort study of miners employed at the mine reported that while no deaths occurred within the first 10 years after crocidolite exposure, 85 deaths attributable to mesothelioma had occurred by 1985. By 1994, 539 reported deaths due to mesothelioma had been reported in Western Australia.
Family members and others living with
asbestos workers have an increased risk of developing
mesothelioma and possibly other asbestos related diseases. This risk may be the result of exposure to
asbestos dust brought home on the clothing and hair of
asbestos workers. To reduce the chance of exposing family members to asbestosMany building materials used in both public and domestic premises prior to the banning of
asbestos may contain
asbestos Those performing renovation works or activities may expose themselves to asbestos dust. In the UK use of Chrysotile asbestos was banned at the end of 1999. Brown and blue
asbestos was banned in the UK around 1985. Buildings built or renovated prior to these dates may contain asbestos materials.
For patients with localized disease, and who can tolerate a radical surgery, radiation is often given post-operatively as a consolidative treatment. The entire hemi-thorax is treated with radiation therapy, often given simultaneously with chemotherapy. Delivering radiation and chemotherapy after a radical surgery has led to extended life expectancy in selected patient populations with some patients surviving more than 5 years. As part of a curative approach to
mesothelioma radiotherapy is also commonly applied to the sites of chest drain insertion, in order to prevent growth of the tumor along the track in the chest wall.
Although
mesothelioma is generally resistant to curative treatment with radiotherapy alone, palliative treatment regimens are sometimes used to relieve symptoms arising from tumor growth, such as obstruction of a major blood vessel.
Radiation Therapy when given alone with curative intent has never been shown to improve survival from
mesothelioma The necessary radiation dose to treat mesothelioma that has not been surgically removed would be very toxic.
Chemotherapy is the only treatment for
mesothelioma that has been proven to improve survival in randomised and controlled trials. The landmark study published in 2003 by Vogelzang and colleagues compared cisplatin chemotherapy alone with a combination of cisplatin and pemetrexed (brand name Alimta) chemotherapy) in patients who had not received chemotherapy for malignant pleural mesothelioma previously and were not candidates for more aggressive "curative" surgery. This trial was the first to report a survival advantage from chemotherapy in malignant pleural
mesothelioma showing a statistically significant improvement in median survival from 10 months in the patients treated with cisplatin alone to 13.3 months in the combination pemetrexed group in patients who received supplementation with folate and vitamin B12. Vitamin supplementation was given to most patients in the trial and pemetrexed related side effects were significantly less in patients receiving pemetrexed when they also received daily oral folate 500mcg and intramuscular vitamin B12 1000mcg every 9 weeks compared with patients receiving pemetrexed without vitamin supplementation. The objective response rate increased from 20% in the cisplatin group to 46% in the combination pemetrexed group. Some side effects such as nausea and vomiting, stomatitis, and diarrhoea were more common in the combination pemetrexed group but only affected a minority of patients and overall the combination of pemetrexed and cisplatin was well tolerated when patients received vitamin supplementation; both quality of life and lung function tests improved in the combination pemetrexed group. In February 2004, the United States Food and Drug Administration approved pemetrexed for treatment of malignant pleural mesothelioma. However, there are still unanswered questions about the optimal use of chemotherapy, including when to start treatment, and the optimal number of cycles to give.
Cisplatin in combination with raltitrexed has shown an improvement in survival similar to that reported for pemetrexed in combination with cisplatin, but raltitrexed is no longer commercially available for this indication. For patients unable to tolerate pemetrexed, cisplatin in combination with gemcitabine or vinorelbine is an alternative, although a survival benefit has not been shown for these drugs. For patients in whom cisplatin cannot be used, carboplatin can be substituted but non-randomised data have shown lower response rates and high rates of haematological toxicity for carboplatin-based combinations, albeit with similar survival figures to patients receiving cisplatin.
In January 2009, the United States FDA approved using conventional therapies such as surgery in combination with radiation and or chemotherapy on stage I or II Mesothelioma after research conducted by a nationwide study by Duke University concluded an almost 50 point increase in remission rates.
Treatment regimens involving immunotherapy have yielded variable results. For example, intrapleural inoculation of Bacillus Calmette-Guérin (BCG) in an attempt to boost the immune response, was found to be of no benefit to the patient (while it may benefit patients with bladder cancer.
mesothelioma cells proved susceptible to in vitro lysis by LAK cells following activation by interleukin-2 (IL-2), but patients undergoing this particular therapy experienced major side effects. Indeed, this trial was suspended in view of the unacceptably high levels of IL-2 toxicity and the severity of side effects such as fever and cachexia. Nonetheless, other trials involving interferon alpha have proved more encouraging with 20% of patients experiencing a greater than 50% reduction in tumor mass combined with minimal side effects.
A procedure known as heated intraoperative intraperitoneal chemotherapy was developed by at the Washington Cancer Institute. The surgeon removes as much of the tumor as possible followed by the direct administration of a chemotherapy agent, heated to between 40 and 48°C, in the abdomen. The fluid is perfused for 60 to 120 minutes and then drained.
This technique permits the administration of high concentrations of selected drugs into the abdominal and pelvic surfaces. Heating the chemotherapy treatment increases the penetration of the drugs into tissues. Also, heating itself damages the malignant cells more than the normal cells.

What is the mesothelium?
The mesothelium is a membrane that covers and protects most of the internal organs of the body. It is composed of two layers of cells: One layer immediately surrounds the organ; the other forms a sac around it. The mesothelium produces a lubricating fluid that is released between these layers, allowing moving organs (such as the beating heart and the expanding and contracting lungs to glide easily against adjacent structures.
The mesothelium has different names, depending on its location in the body. The peritoneum is the mesothelial tissue that covers most of the organs in the abdominal cavity. The pleura is the membrane that surrounds the lungs and lines the wall of the chest cavity. The pericardium covers and protects the heart. The
mesothelioma tissue surrounding the male internal reproductive organs is called the tunica vaginalis testis. The tunica serosa uteri covers the internal reproductive organs in women.
What is mesothelioma?
mesothelioma (cancer of the mesothelium) is a disease in which cells of the mesothelium become abnormal and divide without control or order. They can invade and damage nearby tissues and organs.
cancer cells can also metastasize (spread) from their original site to other parts of the body. Most cases of mesothelioma begin in the pleura or peritoneum.
How common is mesothelioma?
Although reported incidence rates have increased in the past 20 years, mesothelioma is still a relatively rare cancer. About 2,000 new cases of mesothelioma are diagnosed in the United States each year. Mesothelioma occurs more often in men than in women and risk increases with age, but this disease can appear in either men or women at any age.
What are the risk factors for mesothelioma?
Working with asbestos is the major risk factor for mesothelioma. A history of asbestos exposure at work is reported in about 70 percent to 80 percent of all cases. However, mesothelioma has been reported in some individuals without any known exposure to
Asbestos is the name of a group of minerals that occur naturally as masses of strong, flexible fibers that can be separated into thin threads and woven. asbestos has been widely used in many industrial products, including cement, brake linings, roof shingles, flooring products, textiles, and insulation. If tiny asbestos particles float in the air, especially during the manufacturing process, they may be inhaled or swallowed, and can cause serious health problems. In addition to mesothelioma, exposure to asbestos increases the risk of lung cancer, asbestosis (a noncancerous, chronic lung ailment), and other cancers, such as those of the larynx and kidney.
Smoking does not appear to increase the risk of mesothelioma. However, the combination of smoking and asbestos exposure significantly increases a person's risk of developing cancer of the air passageways in the lung.
Who is at increased risk for developing mesothelioma?
asbestos has been mined and used commercially since the late 1800s. Its use greatly increased during World War II. Since the early 1940s, millions of American workers have been exposed to asbestos dust. Initially, the risks associated with asbestos exposure were not known. However, an increased risk of developing mesothelioma was later found among shipyard workers, people who work in asbestos. Today, the U.S. Occupational Safety and Health Administration (OSHA) sets limits for acceptable levels of asbestos exposure in the workplace. People who work with asbestos wear personal protective equipment to lower their risk of exposure.
The risk o f asbestosrelated disease increases with heavier exposure to asbestos and longer exposure time. However, some individuals with only brief exposures have developed mesothelioma On the other hand, not all workers who are heavily exposed develop asbestos-related diseases.
There is some evidence that family members and others living with asbestos workers have an increased risk of developing mesothelioma, and possibly other asbestos-related diseases. This risk may be the result of exposure to
asbestos dust brought home on the clothing and hair of
asbestos workers. To reduce the chance of exposing family members to
asbestos fibers, asbestos workers are usually required to shower and change their clothing before leaving the workplace.
What are the symptoms of mesothelioma?
Symptoms of mesothelioma may not appear until 30 to 50 years after exposure to
asbestos Shortness of breath and pain in the chest due to an accumulation of fluid in the pleura are often symptoms of pleural mesothelioma. Symptoms of peritoneal mesothelioma include weight loss and abdominal pain and swelling due to a buildup of fluid in the abdomen. Other symptoms of peritoneal mesothelioma may include bowel obstruction blood clotting abnormalities, anemia, and fever. If the cancer has spread beyond the mesothelium to other parts of the body, symptoms may include pain, trouble swallowing, or swelling of the neck or face.
These symptoms may be caused by
mesothelioma or by other, less serious conditions. It is important to see a doctor about any of these symptoms. Only a doctor can make a diagnosis
How is
mesotheliomadiagnosed?
Diagnosing mesothelioma is often difficult, because the symptoms are similar to those of a number of other conditions. Diagnosis begins with a review of the patient's medical history, including any history of asbestos exposure. A complete physical examination may be performed, including x-rays of the chest or abdomen and lung function tests. A CT (or CAT) scan or an MRI may also be useful. A CT scan is a series of detailed pictures of areas inside the body created by a computer linked to an x-ray machine. In an MRI, a powerful magnet linked to a computer is used to make detailed pictures of areas inside the body. These pictures are viewed on a monitor and can also be printed.
A biopsy is needed to confirm a diagnosis of mesothelioma. In a biopsy, a surgeon or a medical oncologist (a doctor who specializes in diagnosing and treating cancer) removes a sample of tissue for examination under a microscope by a pathologist. A biopsy may be done in different ways, depending on where the abnormal area is located. If the
cancer is in the chest, the doctor may perform a thoracoscopy. In this procedure, the doctor makes a small cut through the chest wall and puts a thin, lighted tube called a thoracoscope into the chest between two ribs. Thoracoscopy allows the doctor to look inside the chest and obtain tissue samples. If the
cancer is in the abdomen, the doctor may perform a peritoneoscopy. To obtain tissue for examination, the doctor makes a small opening in the abdomen and inserts a special instrument called a peritoneoscope into the abdominal cavity. If these procedures do not yield enough tissue, more extensive diagnostic surgery may be necessary.
If the diagnosis is mesothelioma, the doctor will want to learn the stage (or extent) of the disease. Staging involves more tests in a careful attempt to find out whether the cancer has spread and, if so, to which parts of the body. Knowing the stage of the disease helps the doctor plan treatment.
Mesothelioma is described as localized if the cancer is found only on the membrane surface where it originated. It is classified as advanced if it has spread beyond the original membrane surface to other parts of the body, such as the lymph nodes, lungs, chest wall, or abdominal organs.
How is
mesotheliomatreated?
Treatment for mesothelioma depends on the location of the
cancerthe stage of the disease, and the patient's age and general health. Standard treatment options include surgery, radiation therapy, and chemotherapy. Sometimes, these treatments are combined.
Surgery is a common treatment for
mesotheliomaThe doctor may remove part of the lining of the chest or abdomen and some of the tissue around it. For cancer of the pleura (pleural
mesotheliomaa lung may be removed in an operation called a pneumonectomy. Sometimes part of the diaphragm, the muscle below the lungs that helps with breathing, is also removed.
Stereo Tactic Radiation Therapy also called radiotherapy, involves the use of high-energy rays to kill
cancercells and shrink tumors Radiation therapy affects the
cancercells only in the treated area. The radiation may come from a machine (external radiation) or from putting materials that produce radiation through thin plastic tubes into the area where the
cancercells are found (internal radiation therapy).
Chemotherapy is the use of anticancer drugs to kill cancer cells throughout the body. Most drugs used to treat
mesotheliomaare given by injection into a vein (intravenous, or IV). Doctors are also studying the effectiveness of putting chemotherapy directly into the chest or abdomen (intracavitary chemotherapy).
To relieve symptoms and control pain, the doctor may use a needle or a thin tube to drain fluid that has built up in the chest or abdomen. The procedure for removing fluid from the chest is called thoracentesis. Removal of fluid from the abdomen is called paracentesis. Drugs may be given through a tube in the chest to prevent more fluid from accumulating. Radiation Therapy and surgery may also be helpful in relieving symptoms.
 

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