Break Up The Ninth!

The Ninth Circuit Court of Appeals has long been a bête noire of social conservatives. And a look at recent history certainly illustrates why that should be the case. Those whacko, out-of-control, liberal activist judges on the Ninth Circuit just plain have to get reined in before they utterly destroy American democracy and all that is decent.

First, they said that the Pledge of Allegiance, including the phrase "Under God," is Constitutional and public schools can require kids to recite it.

Then, they stayed an order that would have allowed gay marriage in California.

And today, they stayed another order that would have required the military to permit gays and lesbians to openly serve.

Stephen Reinhardt is still Stephen Reinhardt, and Alex Kozinski still defies easy classification, but it's time to call it like it is:  as to the issues that matter most to people concerned about Constitutional, social, or cultural issues, the Ninth Circuit has become a generally favorable forum for socially conservative points of view.

Establishment and Free Exercise

I anticipate some flak coming my way on this point after Tea Partiers read below that I criticized Christine O'Donnell. So here is a brief refresher for those among you who see grave Constitutional peril in a particular semantic. The First Amendment does not contain the words "separation of church and state."  So too will you search in vain in the Constitution for the word "federalism," but there is no doubt in anyone's mind that federalism is what the Tenth Amendment is all about.

There is no guarantee in the Constitution for your right to cross-examine witnesses against you. The closest you get to that is the Sixth Amendment which provides that you have the right "to be confronted with the witnesses against" you. That means you have the right to be in the same room as them when they testify against you. The right to "assistance of Counsel" in the Sixth Amendment does not mean that your attorney can cross-examine the witness, either. But no sane person would contest the claim that the concept of "due process" in the Fifth and Fourteenth Amendments includes the idea of cross-examination.

What this means is that textual literalism is inadequate to understand the Constitution. Is "separation of church and state" a concept in the Constitution? You can argue "yes" or "no," but it's not a dead-bang winner either way simply because those exact words are not there. You've got to look deeper than that, no matter which conclusion you want to reach.

What we know for sure is in there is a prohibition against an establishment of religion,* and a prohibition against governmental interference with the free exercise of religion. I have a hard time understanding the logic of someone who would dispute the idea that the government must be neutral in regards to religion; it must neither favor nor condemn any particular religion as opposed to another; it may neither favor nor condemn religion generally over non-religion. Instead, individuals must be free to believe (or not) as they wish on an individualized basis. This is called "non-endorsement." Non-endorsement and separation of church and state are functionally the same thing; it's just that one phrase has become politicized and the other has not. But the concept is what we're trying to look at, not the semantics.

It remains beyond me how religious people can realistically claim that the government prohibits their right to engage in free exercise in this day and age. This claim usually seems to point to things like state recognition of homosexual couples (whether in the form of civil unions, domestic partnerships, or marriages); complaints about requirements that parochial schools teach biology (what is to say, they object to the teaching of evolution); sex education; and education about and official pleas for tolerance of minority religions, ethnic groups, and sexual preferences.

I do not understand, and have never understood, how any of that interferes with someone's decision to not engage in or believe in any particular religious teaching. "The school said I have to be nice to the gay kids!" Well, yes, you do. Even if your religion says that the gay kids are inherently morally wrong, you still have to be nice to them -- because beating them up for being gay is still beating them up, and you aren't allowed to beat up anyone for any reason. That's called "assault and battery" and prohibiting assault and battery is not a restriction on the free exercise of religion. (There are some anti-bullying measures out there right now which raise my eyebrows -- not because they interfere with the free exercise of religion, but rather because they potentially interfere with free speech. But this isn't the place for me to get in to that issue and I haven't thought it through all the way anyhow.)

The real question that gripes about "separation of church and state" are aimed at can be phrased in an equally valid fashion: how do we appropriately define an "Establishment" of religion? For instance, is teaching creationism in a public school an Establishment of religion? You might argue "no," but I think that's a steep uphill fight -- a public school teacher saying "It is acceptable to believe that God created the universe and God created human beings" is inherently a governmental endorsement of a particular religious belief by the government.

The teaching of evolution as part of biology, however, does not represent a governmental endorsement of atheism or secularism in contrast to religious beliefs. It represents governmental endorsement of science. Plenty of scientists who believe in God also believe in evolution. There is no inconsistency between religious belief and scientific acceptance of the overwhelming evidence of historical macroevolution of biological species.

Yes, "intelligent design" is creationism -- if you want intelligent design taught in public schools, you want to lead public school children down the path to concluding that the "intelligent designer" was Jehovah. Please don't insult my intelligence by offering the fiction that you posit with any degree of sobriety that life on Earth might have been originated by time travelers or long-dead alien genetic engineers.

Another argument that teaching evolution interferes with free exercise is pointing to statistics that Christian children who study evolution leave Christianity in larger numbers than those who do not. If that is really the case, bear in mind that it's not the government saying that Christianity is false, it's the government saying science is important to learn. As mentioned above, there are hundreds of thousands, if not millions, of people who study and teach evolution and nevertheless maintain their religious faiths.

And yes, it is for the United States Supreme Court to have the final say on that question -- someone has to have the final say, and even if you object in theory to the idea that the Supreme Court can "make" law, you would surely agree with Robert Bork and other originalists that the Supreme Court can legitimately interpret the law, that their job is to apply the law to a particular set of facts in the cases that come before them, and that in so doing they set precedent to be studied, considered, and absent a powerful reason not to, followed in future cases.

A moment's thought about what it is that courts actually do reveals that the difference at that point between interpreting, applying, and setting precedent and "making law" is a good deal blurrier than it might have seemed to be at first glance. Precedent is law, because it binds future inferior courts to follow it, and the creation of precedent is inherently part of the "judicial power" which is explicitly granted to the courts in Article III.

So it is quite in harmony with the Constitutional scheme of separation and division of powers for the courts to respond to challenges in appropriate cases by pronouncing when something is or is not an Establishment of religion. When it is, those things should be stricken down by the courts and the exercise of judicial power is not a usurpation of democracy but rather a guarantee of our individual and collective liberties. Those who find the rulings distasteful should nevertheless bow to the orders and reasoning of the courts, because to do otherwise is to invite lawlessness and we are, ultimately, a nation under the rule of law.

To say that there is no such thing as separation of church and state because that phrase does not appear in the Constitution is remarkably shallow thought. Which is why a room full of law students laughed at the suggestion that separation of church and state is not found in the Constitution.


* I suppose you could argue that there is only a prohibition against a Congressional Establishment; if that is your position, would you be comfortable with the idea of a Presidential Establishment of religion? Where in Article II is the President given authority to Establish a national religion?

Here's A Sign That You've Become A Grownup

When I was a kid, I turned up my nose at Brussels sprouts as thoroughly as if my mother had asked me to eat poached dog snot. But the other day, I saw a bag of Brussels sprouts at the store and thought to myself, "Self, those could be good." And they were good. I can't wait to have more Brussels sprouts. If you never thought you'd like Brussels sprouts, try this:


1 tbsp. olive oil
1 tbsp. butter
3-4 cloves of fresh garlic
pinch each of salt, black pepper, and cayenne pepper
15 (or so) medium-sized Brussels sprouts

Peel the garlic and crush the cloves under the flat of a large knife. Heat the butter and olive oil together above a medium high flame, stirring until the mixture is foamy. Reduce the flame and add the crushed garlic. Stir occasionally while you peel the outer layer out of any blemished sprouts, and then slice the sprouts in half lengthwise. Remove the now-toasted garlic (otherwise it will get bitter) and add seasonings to the foamy fat mixture. Lay the halved sprouts, cut-side down, in the fat, and cover the saute pan for about fifteen minutes. Serve fresh out of the pan, when the sprouts are firm, tender, and browned.

Next I'm going to try them steamed with dill weed and served up with a light lemon sauce.

The Gods Must Be Pissed Off

A thunderstorm just blew through our area. It dumped a ton of hail out in our yard; it's far too warm and wet for the hail to last very long but it was loud and filled with lightning and thunder, all very impressive. Our dogs, unfortunately, are terrified and are likely to refuse to go outside without human accompaniment for several days. They've been needy and we've allowed them access to our bedroom once the cats are put away in their room; being around the people seems to help them calm down.

During the storm, it occurred to me that thunderstorms must have played a part in the birth of religion. Even to a modern, scientifically literate sophisticate such as myself the storm is a little bit scary -- and I know full well what's going on up there in the sky and why the world is behaving the way it is. A lightning strike can kill a human being, can light a house on fire in an instant. Hailstones can get large enough to draw blood when they strike. For someone with little ability to understand air currents, atmospheric pressure, static electricity, sonic booms, and how hail is formed, the sudden violent insanity of the weather must have been terrifying, confusing, and awe-inspiring.

There are clearly very, very powerful forces at work, and it's hard to avoid describing a thunderstorm without using words alluding to anger and rage. Nature herself is angry. If nature can be angry, then she must be something like a person, to have emotions. Maybe, then, someone can do something to calm her down, make her less angry and less scary. That would seem to be a terribly important thing to do during the chaos, violence, and destruction that a thunderstorm can generate. And it would account for a lot of ancient visions of the gods as temperamental, capricious, destructive, cruel, and judgmental.

Now that we understand what causes thunderstorms, of course, we have no need for myths about thunder-gods. But that doesn't make the thunder any less impressive when you're in the middle of it.

Senate Candidates Of 2010: Not Ready For Prime Time

If you only listened to the news, or only read headlines on the Intertubes, you'd have to conclude that there are just plain not enough adults running for office this year. Let's review exhibits A through E on that subject:

• Joe Miller, Senate candidate in Alaska, thinks we ought to emulate the immigration policies of the former East Germany.
• Christine O'Donnell, Senate candidate in Delaware, doesn't think that the prohibition on an establishment of religion is part of the First Amendment.
• Jack Conway, Senate candidate in Kentucky, seems to think that there is a religious test for the office to which he aspires.
• Joe Manchin, Senate candidate for West Virginia, makes clear his opposition to "cap and trade" climate control laws by shooting a copy of the bill with a rifle.
• There seems to be a great debate about Sarah Palin cautioning her supporters to not yet "party like it's 1773." (For the record, 1773 is when the Boston Tea Party took place. Sadly for Gov. Palin, this reference is probably too obscure and subtle for most Americans.)

You know, politics hasn't been this entertaining since free beer and cider was passed out at rallies back in the Gilded Age. But where yesteryear's "free beer" rallies were the way serious politicians got elected, today fundamentally unserious politicians are now getting elected by promising free beer. Or at least, lower rent. People from other parts of the world have to be looking in to American politics this year and wondering what in the hell is going on over here. Come to think of it, you don't have to be from abroad to be wondering exactly the same thing.

Produce Identification Failure

Persimmons are, like, totally not pineapples.

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Who Really Rules Retail?

The Wife and I took a trip to a nearby town to, among other things,do some shopping. In every store we visited, they played Gipsy Kings over the stores' music systems. Now I think I know how to play the guitar in Spanish.

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Two Foundations Of Our Freedom

A U.S. District Judge has found the "Don't Ask, Don't Tell" law unconstitutional.  Appropriately, in my opinion; admittedly, I like the result but Judge Phillips reasoning seems sound to me.

Despite having urged Congress to repeal DADT and a bill to do so having been introduced and passed the House, the provision wound up being filibustered in the Senate. As I wrote before (in comments to this thread) I sincerely doubt anyone thinks any Senator is actually voting against the military and everyone paying attention to the issue knows that the Senators who led the filibuster attempt did so for the purpose of preserving DADT and not because they're anti-soldier (they're only anti-gay-soldier, you all can do the rest of the algebra on that yourselves) or because they consider themselves the principled guardians of pure parliamentary practices.

So despite having urged repeal of DADT, the Obama Administration, through its Justice Department, has been fighting the legal challenge to DADT in the courts. I don't have a particular grievance with that; the executive branch of government has a duty to defend a colorably constitutional law. But there is a limit beyond which that duty has been fulfilled, and that duty is, in my opinion, discharged when it becomes apparent that the statute in question truly does violate the Constitution. Executive officers swear an oath to uphold and defend the Constitution of the United States. Having fought to preserve the law and obtained a ruling that despite the government's best arguments to the contrary, a law does contradict the Constitution, at that point the executive can lay down its burden and say, "We defended the statute but it's more important to defend the Constitution."

This principle has implications for the Prop. 8 case now pending before the Ninth Circuit, by the way. Regular Readers here will recall that I have been critical of Governor Schwarzenegger and Attorney General Brown for not offering a spirited defense of Prop. 8 in the case of Perry v. Schwarzenegger. An adversarial system requires that adversaries engage one another, and since they chose not to do this, the resulting opinion has that much more reason to be suspect in the eyes of those who already find its result distasteful. Comments made even here on this humble blog demonstrate that very well; people who really, really don't like a result in a case will work very hard to find fault with the process used to reach it, particularly when the merits of the result are difficult to refute -- which is one of the reasons why process is important. Usually, the responsibility for process rests mainly with the judge, but the advocates bear some burdens, too.

But as to DADT, there can be no doubt that the Obama Administration did offer a full-throated defense of the policy. Which is all well and good. Now that it has lost in court, the Administration is at the point that it has real discretion about what to do next. It can decide that the judge's opinion is well-reasoned and decline to appeal. This would seem to be consistent, at least on a political level, with the Administration's prior call for DADT to be repealed by Congress.

Nevertheless, President Obama seems to have ordered his Justice Department to seek a stay on implementation of Judge Phillips' order in Log Cabin Republicans v. Gates, and to seek appellate review of her opinion before the Ninth Circuit. While I think he had to order a defense of DADT at the district court level, I don't think he has to do this.

In fact, Obama is actually taking a legally tenable position here: DADT is Constitutional, therefore I have to defend it; at the same time, I think it's a bad law, so it should be repealed. That is actually an intellectually principled and appropriate way to handle the situation. But it's awful, awful politics. It also ignores a third facet of the issue: as President, he exercises a substantial amount of discretion in how the laws are to be executed. All Presidents do; it's part of the inherent authority of being the executive. The President has the power to, the necessity to, and is expected to, prioritize in discharging his duty to faithfully execute the laws.

He could say, "I think our biggest law enforcement problems within the military are 1) suicide prevention, 2) domestic violence, and 3) misappropriation and theft of war materiel. We don't seem to have any significant problem with violations of Don't Ask, Don't Tell, so I'm instructing the Secretary of Defense to issue policies to the various JAG Corps to devote their prosecutorial resources to the problem areas and to bypass prosecution of non-problem areas because violation of DADT doesn't appear to be a particularly big problem right now." He could even say, "I think DADT is bad policy and unfair, so I'm instructing the military to not initiate any discharge proceedings for violations of DADT in cases where they do not have tangible and compelling evidence that the violation of DADT has had a significant impact on unit morale and efficiency."  He would need no authorization from Congress or anyone else to issue such orders, but has not chosen to do so.

The reason is, he doesn't have to. It's not like significant numbers of gays are going to vote for Republicans any time soon, after all. A cadre of Republicans have gone to considerable effort to ensure that not only will gays never vote for them, but also to serve up those voters to the Democrats on a silver platter; all the Demos have to do is call the Republicans a few names, drop a few scare tactics, and boom! those votes are locked up. If they aren't the most enthusiastic Democratic voters in the coalition, well, Obama can live with that.  In the meantime, Obama has precious little political capital, so expending it on issues that improve the rights and lives of people who are already going to support him anyway (albeit in a lukewarm fashion) doesn't make sense -- especially if he believes that doing so will alienate a bloc of voters whose support really is up for grabs. Here, I speak of probably older, probably blue-collar voters; many of whom grew up in a world where it was literally illegal to engage in gay sex acts and they thought those laws were just fine. It's in a bid for their support that Obama doesn't actually lift a finger to help out gay people and therefore only makes nice noises about gay rights when it is politically required that he do so.

While he has found an intellectually tenable reason to thread the needle in this way, I wouldn't accuse the President of being "principled" on this issue. "Craven" seems like a better adjective.

Fortunately, the Pentagon has less of a problem with Judge Phillips' order than the White House does.  It has suspended enforcement of DADT for all branches pending the resolution of the Log Cabin Republicans case, in compliance with the court order. Once again, our military is conducts itself with professionalism, honor, and obedience to civilian political and legal authorities; it deserves praise for so doing and the rest of us should recognize in that act one of the deepest and most profound foundations of our collective freedom.

We can also point to Judge Phillips as representative of the other other significant bulwark of our freedom. She responded to the case before her with an unflinching and well-reasoned application of the law. She couldn't help but know that she would probably come under significant personal attack for her ruling and no doubt some of the same people who suddenly became whizzes at legal procedure after the Perry v. Schwarzenegger opinion are busy coming up with talking points about why Log Cabin Republicans also suffers from fatal procedural flaws.  So far, though, about all I've heard or read are the usual cries of "Liberal judicial activism! Liberal judicial activism! Oh noes our democracy is in peril!" which are substantively nothing more than whining.

Because our democracy is not in peril. Not at all. We live in a nation governed by laws, not a nation governed by the day-to-day passions of a majority of various factions. (Those phrases should sound familiar to those who have read their Constitutional history.) It was decided long ago that yes indeed, the judiciary has the power to uphold the Constitution even if the President objects to the reasoning thus deployed and the orders which result therefrom. And a single District Court judge does indeed have the power to stop the President in his tracks when he undertakes to violate the Constitution. That is not a danger to our liberty -- it is a foundation of it.

We should celebrate that a judge has made this order. The reasoning is fair, principled, logical, and consistent with the law. It vindicates the rights of Americans who amply deserve it. It makes our military stronger because it lets the military retain people whose service is vital. The order bypasses what was turning into a messy and contra-majoritarian political struggle. But most of all, it represents the triumph of the rule of law over arbitrary and callous political calculations by an unprincipled, craven President.

Thinking About Education Reform

While reading a deeply interesting post on education reform, I came across this video, which was the third or fourth link to it I had seen in a day:

A lot of things really stand out in the video for me.

First, the video makes the point that humanities and liberal arts classes really are good -- when well-taught -- at getting students to develop the sorts of skills like critical thinking, autonomous and creative problem-solving, and written communications which are truly important in most professional environments I come across (and which are sadly lacking in so many fields of life).

But for some reason, a having degree in Neoclassical French Literature seems like it would be a death knell for a resume intended to land a non-academic job. It blows right by this point, as if it were obvious that were you to hire that French Literature major, you'd be happy with him but society is somehow prejudiced against the arts and humanities. The video blows right by why that prejudice might exist.

My suggestion to answer that unanswered question is the old Vietnamese proverb: a fish rots from the head down. While in theory, the intensive study of Neoclassical French Literature could teach critical thinking, develop good writing abilities, and inspire autonomous and creative problem solving, in practice it does not do these things, because French Literature, like a lot of humanities classes, are taught by teaching assistants and/or professors who themselves lack critical thinking, problem solving, and written communications skills themselves. There is a perception that to succeed in a liberal arts program, a student need only parrot back the professor's own opinion to her, can use academic gobbledegook and fuzzy reasoning in the place of rigorously-examined language and logical skills, and has been the beneficiary of grade inflation to the point that any quantifiable academic evaluation of the student's performance is meaningless.

In other words, the assumption out there in the marketplace is that humanities professors are useless, otherwise-unemployable twits who do nothing but smoke a lot of weed and train otherwise-intelligent young people in how to also become useless, unemployable, weed-smoking twits.

The reality may well be different, but that's the perception. But is the perception really that far off the mark? Less so than most professional academics would be comfortable admitting, I'll wager, at least in a forum where they could be identified by their colleagues. Teaching critical thinking is hard, in part because it requires at minimum that one think critically oneself. Teaching good writing skills is difficult, in part because it requires having good writing skills oneself and in part because it is time-consuming and not focused on the substantive subject professors believe they have been hired to teach.

Second, the video makes a clever pun concerning the arts and the use of pharmaceutical aids to combat attention deficit and hyperactivity disorder (ADHD). Experiencing the arts is a consuming, focused, mentally stimulating task -- one that is aesthetic. By contrast, the use of drugs to control ADHD is an anesthetic technique, one which deadens a person's susceptibility to stimulation, which diminishes one's ability to feel and respond to the outside world. That's a nice pun.

And the third issue is the point made about ADHD diagnoses being regionally clustered. I couldn't believe this was true when I fist saw it. It didn't take much time to track down where that graphic element of the video came from. Using this data from the Centers for Disease Control and Prevention, a map can be created which demonstrates that as a general trend, the further to the U.S. southeast one gets the more likely an elementary or high school student is to be diagnosed with ADHD. That map was originally drafted by an artist at the Associated Press and it looks like the picture to the right.

A closer look at the map and the underlying numbers, however, shows that there is some lying with statistics going on here. You'll notice that the difference in color between the various states is dramatic -- it's easy to see a difference between Illinois, Indiana, and Kentucky, for instance.  But compare lowest-tier Illinois with highest-tier Kentucky, right next door.  Illinois has a diagnosis rate of 7% or lower.  Kentucky has a diagnosis rate of more than 10%.  That's potentially a difference of as little as 3.1%.  But by picking the gradations between tiers the way it did, the AP turns the raw CDC data into a dramatic geographic trend; you might ask after looking at the chart, "Is there something bad in the water of the Southern states?" No, there isn't. The color choices and tier gradation choices only gives that impression.

The CDC data points to about half of the ADHD-diagnosed kids overall being treated with drugs like Ritalin. The few kids on Ritalin I've seen in my limited experience at high schools over the past couple of years bear a passing resemblance to zombies from the movies -- they are quiet and sit still, which surely makes a teacher's job easier, but they are also not particularly mentally engaged with much of anything. It's hard to imagine that their grades have gone up because of the drug; what may be happening is that the kid's disciplinary problems go away but his mental baseline is lowered in the process.

For that reason alone, my remarks here should not be understood as a dismissal of the claim that ADHD is over-diagnosed and that making a practice of treating teenagers with powerful psycho-pharmaceuticals is a particularly good idea. I like that the author of the video, among other people, are raising this flag because it seems to me that another way to diagnose ADHD is to call it "adolescence." Teenagers don't sit still, they never have. Teenagers don't pay attention to their teachers, they never have. This is nothing new, and it's something that can be addressed in quite a lot of different non-pharmacological ways.

But I'm not convinced at all that there is a dramatic regional difference between the states in diagnosing this condition. While over-diagnosis and mistreatment of ADHD strikes me as something likely to be a real problem within primary and secondary education, this data, at least, does not support that conclusion.

Fourth, the author makes the point that a lot of learning occurs in groups rather than in book study, homework, testing, or individualized instruction. This may be true, but my experiences with both online and live teaching in format which required me to have students work in groups for the purpose of working in groups can only be described as uniform failures. "Learning Groups" are very useful and educational for demonstrating the economic concept known as the "free rider problem," but not much else. What I observed happening in damn near every "Learning Group" I ever monitored was one student doing all of the work and the rest doing damn near nothing, with the result that they all got the same grade. This is unfair, and just as important, it results in only the one student actually learning anything while the rest of the students just coast. So consciously setting up team learning exercises is probably a bad way to go, but perhaps there are ways to integrate group learning activities that are less ham-handed and are not readily susceptible to free riders.

Industrial-style standardization probably is a bad way to go. But the video goes too far in suggesting that standardized testing is counter-productive. There has to be some sort of way to quantify and evaluate student progress and thus teacher performance. Perhaps the current regime is not doing a good job of that, but at the same time a standardized test does measure something.

But perhaps the biggest ideas that I felt good about after seeing the video was the possibility that the humanities could be rescued from their current status as a backwater area for ambitious graduates seeking employment if critical thinking and written language skills can be re-injected into humanities curricula. This will require that instructors acquire and demonstrate those skills themselves, and it also requires that they give less-than-stellar grades for students who demonstrate less-than-stellar performance in those areas regardless of the students' mastery of the substantive subject matter of the class.

This means that there must be sufficient time for an instructor to convey and evaluate those things in meaningful ways, which takes away from time that could otherwise be spent on teaching multiple classes, and it takes away time that could otherwise be spent on research and academic writing. This implicates the publish-or-perish impulse that drives faculty incentives at a lot of academic institutions, too.

The video was deeply flawed. But it nevertheless raises a lot of issues, a great many things to consider about one's own education and the way other people will be educated in the future. It inspires real thought. In that respect alone, it is a worthwhile use of the ten minutes it asks of you.

This Post Is Full Of Win

Sometimes a blog post is just perfect. It starts with a good title. It includes a properly evocative photograph. Its content is well-written and understandable, without talking down to the lowest common denominator. It is factually dense, informative, and leaves you smarter than you were before you read it. And it makes you laugh while you read it. This is such a post. Via.

Miners

The story about the rescue of the miners in Chile is really one of the best, nicest, happiest things I've heard on the news in quite a while. A great story of human perseverance, effort, compassion, and ingenuity combining to save lives and reunite families. Congratulations to the rescued miners and their families for enduring a terrible seventy days, congratulations to the engineers and workers who pulled off the rescues. Not every story like this ends well; so let's enjoy it when we get a happy ending like this.

This Is How I Maintain A Facade Of Diplomacy

From a room full of adjunct teachers, in a two-and-a-half-hour-long meeting to brief them on how to fill out a five-column form now required by the school, my intelligible notes read as follows:

• University identifies list of 8-12 "learning objectives" for class.
• Me: ID objectives by number for each assignment -- prove class meets objvs.
• Me: itemize whether each student meets objective or not for each assignment.
• E-mail form to dean and local campus when semester is done along with grades.
• Guy in back outraged. Arbitrary rules part of life dude.
• Must conform syllabus to school template from now on.
• Tedious. Is it even worth my time anymore?
• Look, dude, it's arbitrary and stupid and time-consuming and you have to do it anyway.
• Everybody's busy.
• If they'd wanted your opinion, they'd have told you what it was before this meeting.
• If you don't like it, quit. No one's forcing you to do this.
• Can I go home yet?

The rest of the page is doodles, growing increasingly pointy and agitated as the one adjunct teacher in back droned on and on about how the school didn't trust him or care about his academic freedom. It's a frickin' career college, dude, there's no academic freedom here. You want academic freedom? Go get on the tenure track at a four-year public school. What you want here is a paycheck.

I let no one see what I wrote. Instead, I seemed to be an attentive, patient attendee. Some people wear their hearts on their sleeve -- mine gets scrawled on a legal pad.

Bad Attorney Advertising, Part 1

Yesterday, I was musing about a lack of blogworthy subjects. After all, what can I say about the Nevada Senate race that hasn't been said elsewhere a million times already? No good options available there, but that ought to be obvious to the casual observer. But I should have simply had a bit more patience, because today, under the windshield wiper of my car out in the parking lot at court, the subject for not only a new post but a whole series of posts was literally given to me, for free.

I speak, of course, of bad attorney advertisements.

I found the flyer to the left on the windshield of my car this morning. Unless I've missed my guess, you should be able to click on the picture and see it at a much higher resolution. The flyer itself was on an 8½" by 11" sheet of glossy paper, printed on only one side.

I've altered the attorney's name and telephone number. I found a font that is sort of like the one used in the ad but I frankly didn't dedicate a lot of effort to that part of this project, so my two alterations are a little darker than the scan, the font isn't exactly right, and is just a little bit smaller. This should be obvious to the casual observer, once you find the alterations I made.

Which is my very first problem with the advertisement.  You've really got to hunt to find the attorney's name and telephone number. There is no doubt that the advertisement is for a divorce lawyer.  What is that lawyer's name?  Assuming that I'm favorably impressed by the advertisement and want to hire this lawyer to handle my divorce, how do I get a hold of that lawyer?  The lawyer's name appears in the smallest size font used in the entire advertisement, at the very bottom of the page.  The lawyer's telephone number is nearly buried underneath stacks of visually oppressive block text.

Which is the second problem.  There are upper- and lower-case letters for a reason.  USING ALL CAPITAL BOLDFACED LETTERS IS LIKE SHOUTING and when you emphasize everything, the result is that nothing is emphasized.  The use of all-capital letters, and the clunky, blocky font gets in the way of the message, which ought to be "Hey, I'm a lawyer who can help you with your divorce." Instead, the ad says "I'M A LAWYER WHO CAN HELP YOU WITH YOUR DIVORCE!" and that suggests some rather disagreeable things about the lawyer's personality. This is only underlined by the central picture (more about that below).

My scan of the flyer is maybe a little blockier than the print, but not much.  The spacing of the fonts is badly-proportioned, and in the central, most important word ("DIVORCE") the spacing is so obviously over-wide that it is distracting.  Since my suspicion is that "Arthur Dent" designed the advertisement himself, I would suggest that he take some time to learn about why typography is important for lawyers and how to use typography advantageously so as to make documents with at least a modicum of care for the visual effect of the end product. A similar typographical disaster is the fact that every word of text on the advertisement is centered.  Some use of centering is good, too much and it looks like you don't understand how to use the "left-align" button on your word processor in addition to being indifferent about how you use your CAPS LOCK key.

The graphic elements of the ad have five parts -- the two pink trapezoids, the two blue trapezoids, and the photograph in the middle.  I like the photograph in the middle.  It is emotionally compelling, accurately describes the need for the service being offered, and it attracts the eye.  It's a shame that this nice photograph is surrounded by such primitive and ineffective graphic elements as the trapezoids.  They are at once so bright on the glossy paper as to hurt the viewer's retinas but also so dark as to create a low contrast with the black text of the advertisement.

On glossy paper, and viewed in the sun (as I first saw the flyer) the low contrast is much more dramatic than it looks in the scan (or the shade). Probably the glossy paper was the only format available that could transmit the clarity of the photograph -- I like the detail of the muscles straining on the man's neck especially -- so maybe "Arthur Dent" was stuck with that kind of medium instead of one that was both more affordable and easier to read.

Now, I've already spilt a lot of words about the flyer but I haven't yet said anything about its content.

My response to the content is not completely negative, however.  I'll say this for "Arthur Dent" -- he has created a properly-focused advertisement. "Arthur Dent" is probably not above taking a personal injury case, an eviction, or a criminal matter.  But this advertisement is going for one kind of business and one kind of business only -- family law.  If you need to get divorced, Arthur Dent does that.  Too many lawyer advertisements -- I'll share another one soon -- contain laundry lists of different sorts of things the attorney either has done, is willing to do, or is at least willing to take your money in exchange for promising to do.  The result is confusion, at best.  "Arthur Dent" does not suffer that problem here -- there is no confusion at all about what "Arthur Dent" does for his clients.

However.  "Arthur" also seems to suffer from low self-esteem.  Despite "13 years experience" our man "Arthur" describes himself as "cheap" twice, "cut-rate" once, and "competent" once.  I would hope that with thirteen years of experience, "Arthur" is not just "competent" at the core segment of his practice.  By now, he should be pretty good.  And he should also be good enough to command a healthy fee.  When I showed this ad to The Wife, her first reaction was, "This guy must not be very good if he has to cut his fees like that."  When I began doing real estate law, I was quickly corrected the first time I referred to a piece of property as "cheap." Real estate isn't "cheap," it's "inexpensive." Similarly, legal services aren't "cheap," they're "affordable" or "reasonable."

So given that his assurances about his "cheap" rates also convey the impression that the quality of the services offered in exchange are not high, what does "Arthur Dent" say about the quality of work he does?  Well, in his left-hand trapezoid, he asks if the reader wants "excellent" representation.  Then in the bottom trapezoid, he promises to deliver "competent" representation.  You might say I'm selling "Arthur Dent" short here, but he's the one who's doing that. I'm just pointing out what he says about himself.

"Arthur" uses the word "representation" four times, and twice in a single sentence.  I suspect most people know what that word means, but it is a long word, and in graphic terms, it eats up acres of space on the flyer.  So do words like "experience," "understanding," "procedures," and "competent."  The"Want-Have-Get" triptych is also a parody of what people cynically think of the legal system in general, and divorces in particular.  The overuse of dollar signs and question marks also does not add luster.

And finally, "Arthur" chose to advertise in the form of a large-format glossy-paper flyer placed on peoples' cars outside a courthouse.  Now, if you want to create a favorable impression for your product or service with me, leaving a flyer for it on my car while I'm not there to monitor you tampering with it is a really counterproductive way to go about doing that. But maybe other people are less bothered by that sort of thing than I.

The medium and venue for the advertisement also suggests that Arthur Dent" is targeting people who are already in the middle of divorce proceedings and find themselves overwhelmed by the legal system without a lawyer.  That's certainly filling a need, but it doesn't seem like a particularly profitable market.  These are people who didn't get a lawyer when they first ventured in to court -- most likely because they didn't have enough money to hire one so they went on their own to do the best they could.  This dovetails with the ad's emphasis on "cheap" fees.  "Arthur Dent" is making a significant mistake here that has been underlined to me by experienced lawyers, marketing consultants, colleagues, and bitter experience -- any attorney can get all the work they want to do, and more, from clients who can't pay.

It's a hard enough time for family lawyers as it is.  Typically, attorney's fees in a middle-class divorce are paid for out of the liquidation of the former family house.  With so many homes upside-down these days, a lot of people who would otherwise get divorced are not doing so, because they can't afford the transaction cost.  One colleague at court tells of a situation where he has a would-be client who can't afford his fee so he and his wife both continue to live together in the house they jointly own within their still-extant marital estate -- he with his girlfriend, she with her boyfriend, all under the same roof.  A ticking time bomb of a situation, if you ask me.

Within that sort of economic environment, "Arthur Dent" is spending money, probably a lot of it, to have these flyers printed up and distributed, so that he can attract clients who will have difficulty compensating him for his services.  My verdict is that the only thing that will save "Arthur Dent" from the ruinous consequences of a successful marketing campaign will be the singular ineffectiveness of the advertisement deployed in pursuit of that strategy.

Well It's Not Just Me

I've not really spent much time Thinking Big Thoughts or Making Astute Observations or even coming up with Incisive Takes On News lately. Frankly, I've been too busy working, too busy with my local atheist group, too busy coaching my high school mock trial team, too busy gearing up to teach a class, too busy playing Civilization V and re-reading the Baroque Cycle. I cut my index finger badly with my new ceramic santoku knife, so typing is a bit awkward, but that's not anything I can't work around. No, it's stuff like my poor dog won't stop scratching despite a trip to the groomers and a dose of anti-flea medication; I'm mourning a disastrous Packer game yesterday; the weather has been glorious, and the Freud movie analysis club did Basic Instinct. All told, living my life has felt consuming enough that I've not had the desire to write in a serious way for a little while.

And you know what, this is okay.  We can't all be Thinking Big Thoughts, Getting Our Collective Danders Up all the time, or even Writing The Great American Blog every day.  It's okay to drop it down into second gear, pretty much coast for a while, and not worry about kicking it up again until the need arises.

At least I know it's not me. My right-wing friend seems to have found no better pop culture target to go after than John Cusack, my favorite writers at my favorite Big Thoughts blog find the most notable intellectual event of the day being the ten-year anniversary of Andrew Sullivan's blog, and even fivethirtyeight has found itself reduced to musing about the Senate race in West Virginia.  For a month before a significant mid-term election, there sure doesn't seem to be a ton of exciting stuff happening.  Parodies of Christine O'Donnell's "I'm Not A Witch" advertisement are about the best thing going.  Memeorandum's lead story is the "controversial" and dark but quite funny Bansky opening sequence for The Simpsons, for crying out loud.


When the biggest thing to write about is The Simpsons and my dog's mysterious non-flea-related itchiness, it can't really be all that bad.

Truly Objectionable Flag Worship

This is not news -- the Pledge of Allegiance is optional. Always. You are not required, never required, to recite it -- and if you do, feel free to omit the late-addition "under God" clause. Requiring someone to recite it is trampling on their First Amendment rights. West Virginia Board of Education v. Barnette (1943) 319 U.S. 624.

Citing an attorney for contempt of court -- resulting in his same-day incarceration -- for refusing to recite the Pledge before proceedings begin is an abuse of judicial power and a violation of the Constitution judges are sworn to uphold. But that's exactly what Chancellor Talmadge Littlejohn of Tupelo, Mississippi did to attorney Danny Lampley yesterday. (Hat tip.) Lampley need offer no explanation, excuse, or apology for remaining silent while others recited the Pledge of Allegiance -- he is an American citizen and an American citizen need not explain or apologize for their exercise of their rights, particularly before a court and a judge who ought to know better.

Judge Littlejohn, however, owes Lampley an expungement of the contempt citation, and an apology. Whatever other politics, ongoing disputes, or feuds these two men might have, when he puts on that robe, sits on that bench, and issues a contempt citation, Littlejohn stops being an individual and becomes an embodiment of the state. As such, he owes everyone a duty to discharge the powers of the state with integrity, fairness, and in accordance with his oaths to uphold and defend the Constitution. I rather suspect that he will receive a letter with some unkind words from the Mississippi Supreme Court in fairly short order.

This strikes me as at least harmonious with a bizarre cult of flag-worship floating around in our culture, one that seems to have considerable overlap with people who overtly display a mawkish and superficial love of all things military and patriotic -- and which also seems to overlap with spuriously-reasoned tax protests and other claims about the limits of governmental power, from which comes my favorite piece of judicial language addressing the Cult of the Flag:

Nor are the fringe or the eagle of any legal significance. Even were Mr. McCann to prove that yellow fringe or a flagpole eagle converted the state court's United States flag to a maritime flag of war, the Court cannot fathom how the display of a maritime war flag could limit the state court's jurisdiction to take his child away from him. Jurisdiction is a matter of law, statute, and constitution, not a child's game wherein one's power is magnified or diminished by the display of some magic talisman.

 McCann v. Greenway (W.D. Mo. 1997) 952 F.Supp. 647.

I have no problem with respect for the military or patriotism; I personally respect the military and consider myself a patriot. I have no problem with people advancing credible arguments in court about why they need not comply with governmental orders. But the flag is not a holy idol or a wizard's amulet. It is a symbol. What deserves reverence, respect, deference, and veneration is what the flag is a symbol of. America is not a piece of cloth.

The Jehovah's Witnesses in the Barnette case had a social point as well as a legal one -- there are people who do not merely venerate the flag, they worship it.* To confuse the symbol for that which the symbol represents is the very essence of magical thinking. And there is no place for magical thinking on a court's bench.


* ...and then a great many of those people call themselves "Christians" after worshiping that symbol, one which the Gospels would equate with Caesar rather than Jehovah, but this isn't a post about religion.

Silly Anti-Hapsburg Laws

I guess maybe to some people in Europe, it's not so silly to have laws that exclude the descendents of the former royal and noble families from becoming heads of state, but it seems rather silly to me that someone who can run for a country's Parliament and therefore theoretically become its Prime Minister and actual head of government cannot also run for President and become the country's honorary public figurehead:

A descendant of the Habsburgs is taking Austria to the European Court for Human Rights for not allowing him to run for president, his lawyer said Tuesday.
Ulrich Habsburg-Lothringen could not become a candidate in April 25 elections because he lacked the required number of signatures and Austrian law bars members of all ruling or former ruling families from running for the largely ceremonial post.
The Habsburg dynasty was once Europe's most influential royal house and held power from the 13th to the early 20th centuries.
The ban - which only applies to the presidency and is enshrined in the constitution - dates back to 1919 when Austria became a republic after centuries of monarchic rule. It was meant to quash any aspirations to reclaim the throne by members of the former royal family.
The complaint filed with the Strasbourg-based court argues that the ban violates Habsburg-Lothringen's human right to participate in democratic elections, said his lawyer, Rudolf Vouk.

Dr. Habsburg-Lothringen seems like a decent enough fellow on his own website; while there is plenty of blue blood in his veins it seems as though such money as he has is the result of what in America we would call a "small business" as a tree farmer, supplemented with work as a civil engineer and a raw materials purchasing agent for a paper plant.  His politics look to be well within the spectrum of socially-acceptable opinions of his nation, and he even has a blog! It's no more or less crankier than anyone else's; he's annoyed that the accident of his parentage excludes him from running for a particular office.

In America, we have both a ban on hereditary titles or grants of nobility, and a ban on laws that work a corruption of blood. These both seem like eminently fair and reasonable policies for all countries in this modern era of self-government. It's not Dr. Habsburg's fault that his ancestors were nobility. He is a citizen of his nation, he pays his taxes, he seems to have broken no laws. Maybe it's none of my business because I'm not Austrian, but if I were, I'd say, if he is otherwise eligible to run for President of his country, let him stand along with with his peers and solicit the approval of his fellow-citizens.

Since he can't even gather 6,000 signatures to be otherwise eligible to run, I don't think there's much danger that a Habsburg will actually be President of Austria anyway.

Hat tip to Robert Farley.

The Supreme Court Lexicon Expands

Looking over the transcript of today's oral argument in Snyder v. Phelps, the big free speech case argued today in the Supreme Court, I find this passage argued by Margie Phelps, counsel for her relative Fred Phelps, the mastermind (if such a word can be used) behind the excerable Westboro Baptist Church's protests of soldiers' funerals:

JUSTICE ALITO: So let me -- let me give you this example. Suppose someone believes that African Americans are inferior, they are inherently inferior, and they are really a bad influence on this country. And so a person comes up to an African-American and starts berating that person with racial hatred.
Now is that in -- this is just any old person on -- any old African-American on the street. That's a matter of public concern?
MS. PHELPS: I think the issue of race is a matter of public concern. I think approaching an individual up close and in their grille to berate them gets you out of the zone of protection, and we would never do that.

Tr., 39:23-40:11.

Unless I'm mistaken, Ms. Phelps has made the first ever use of the phrase "up in your grill" in U.S. Supreme Court history. Thus doth the law expandeth; we've come a long way since Blackstone.

By the way, Justice Kennedy eviscerates Phelps' argument at a stroke -- not every attribute about someone is a matter of public concern simply because someone doesn't like that thing -- but that isn't the observation I'm making here. Not that Kennedy's point about public issue versus private figure is dispositive. I don't see how the ruling in this case can be anything other than that the Maryland law in question authorizing a tort cause of action against funeral protestors can possibly be Constitutional. Unless the Court is willing to break new ground, this ought to get at least eight votes.

While it's very easy to be outraged at Fred Phelps and the rest of his scummy family for what they do, I for one am not willing to sacrifice the Constitution simply because of scum of this nature hate homosexuals so much that they lack the common decency to allow mourning families to bury their veteran children with dignity. They should be ridiculed and held up to public obloquy and shame, not made subject to custom-crafted tort claims whose goals are overt censorship.

Fundamental Questions

While we in the USA take our democracy-within-a-republic very much for granted, we should not. It only takes a look across the Atlantic to our allies, trading partners, and friends in Europe to see people who look and act very much like us, but who nevertheless periodically confront much more fundamental questions about what good government is than we do. Here, we argue about marginal tax rates, marginal differences in expansion of government involvement in the health care system, and make noises about our debt but never really do much about it. Many of the social issues we confront and clash about are, in the grand scheme of things, really only so much noise. We aren't confronting basic issues like whether the government should nationalize every industry with 50 or more employers. We don't address questions like whether the military should provide police services. We have a very broad, very deep consensus in favor of our federalized republican form of government. In Europe and elsewhere, these kinds of issues are still in play.

I was reminded of this after reading a Portuguese blogbuddy celebrate the centennial of the proclamation of the Republic of Portugal today. One hundred years ago today, the purportedly constitutional monarchy fell and democratic rule became the government of Portugal. I say "purportedly" because an earlier King had imposed what was effectively a dictatorship within the framework of that Constitutional scheme, which resulted in his assassination.  The Portuguese have the good taste to not celebrate the anniversary of the assassination but rather of the subsequent proclamation of a republican form of government as the worthwhile date to commemorate.*  Now, because the author of this blog is a lawyer, he celebrated the holiday with a question -- was it worth it?

In response to the post, I took the time to educate myself about the events of the last century in his nation -- this is the sort of thing I think Wikipedia is good for -- and found an erratic history, one of republican government displacing monarchy, then collapsing into a quasi-fascism, then being usurped by military governments, and only within my lifetime returning to a parliamentary democracy in line with the bulk of Europe.  Looking at Portugal's economic history, it appears that its degree of economic prosperity has roughly coincided with the degree of freedom afforded its people during the last century. The Portuguese were always industrialized and compared with global nations never impoverished, but they've done much better for themselves under republican forms of government than the authoritarian alternatives that were tried. This hardly strikes me as a coincidence but I'm prejudiced in that regard.

On my counterpart's blog, I argued (with the aid of a translation tool since I have no Portuguese myself) that in broad terms, a form of government founded upon the rule of law will necessarily trend towards a republican form of government and away from an authoritarian model. I also argued that a government founded upon popular rule will eventually reach a republican level (which I did not define there as meaning "representative democracy" but that's what I meant) because anarcho-capitalism and direct democracy are simply too inefficient to provide for effective government and therefore even autonomous individuals who find themselves in such an environment will eventually come around to the idea that they need a government with teeth.  I'm borrowing heavily from both Nozick and Rawls here, but that brings me to my question for the morning, one which all you political theory junkies out there will enjoy. And I mean both of you.

My premise asks that you assume a large body of self-governing people who are dedicated to the idea of the rule of law. Is it inevitable that such people will choose a form of government that incorporates a substantial amount of representative democracy?  Or could they rationally, and consistent with their dedication to the rule of law, adopt an authoritarian form of government?  I know that democratic means have resulted in fascist military governments in multiple places during the 20th century (Portugal among them), so what lesson can we take from that -- did those elections represent a real choice by the voters or was there some sort of departure from the peoples' commitment to the rule of law?

It might also be the case that we do not have enough data points in history to plot a curve here -- meaningful self-government is a relatively new phenomenon in human history, after all.

Ultimately, it seems to me not, although I wonder if I must resort to special pleading when considering the cases of Germany and Italy in the 1930's, or if those can be written off as extreme points in the inevitable cycle of right-versus-left power shifts that will take place within a democratic system in response to fluctuating internal economic and external diplomatic conditions. I certainly hope that the rule of law leads to meaningful self-government, and I can't think of a way it wouldn't (eventually), but I've not poured enough brainpower into the issue to be satisfied that this is necessarily the case -- and the example of the rise of fascism in the 20th century suggests to me that I might be wrong.


* Touchingly, it looks to me like the most significant national holiday of Portugal celebrates the nation's greatest poet, Luís Vaz de Camões. Nothing like that here -- July 4 is a fine day to celebrate for our political history, but we have no holidays dedicated to the arts and our Portuguese friends have set an example that we ought to consider following.

Pay To Spray

When we lived in Tennessee, one of the more jarring cultural differences I found was being presented with a bill for emergency services. Paramedics, firefighters, and the like are certainly not free and if we ever used them I fully expected to be billed for their services. But having to sign up for a subscription to an ambulance and paramedic service was foreign to my existence from California. Here, such things are simply provided to anyone who asks for them, and the bill is presented after the fact.

The system is not perfect. One of my clients is an EMT who works for the largest of the various ambulance companies here. She confirms what I had already been led to believe, which is that there are those people who make emergency calls for ambulances when what they're really looking for is transportation to a routine, maybe necessary but not emergent, medical appointment.

This is quite expensive. Therefore, only the very poorest of people do it, since they won't be paying anything anyway.

If this seems like an abuse of the system, well, it is, but for the most part the rest of us shrug it off because, well, what are you going to do? Everyone knows the high cost of medical services is because of all those damn lawyers filing medical malpractice lawsuits. It has nothing to do with poor people who use emergency ambulance services like taxis.

Getting back to Tennessee. We signed up for and subscribed to the emergency services district, believing that if we ever needed the services (the Gods forbid) we would want to have subscribed and we'd be in a world of hurt without them. The $75 per year or whatever the subscription fee was seemed like peanuts compared to having to drive, wounded or only partially conscious, to a hospital. What was galling, though, was learning that our medical insurance and homeowners' insurance did not pay for this fee and it was an additional expense.

So what is looking like the Outrage Of The Week in development is a Tennessee emergency situation. A homeowner in a rural area did not pay the annual subscription fee to the emergency services district and therefore opted out. Saved himself $75 a year and hey, times are tough, so you skimp on things. Sure enough, his home caught fire. And the firefighters drove out -- not in response to his calls for help but rather those of his rate-paying neighbor, who feared that the fire would spread and harm his insured house -- and watched the house burn down, ignoring the homeowner's offer to pay the entire cost of saving his. So now the homeowner has learned a terrible, expensive, and deeply painful lesson about what insurers call "moral risk."

Now, this looks awful for the libertarian purist. The guy said he offered to pay the firefighters their full expense for saving the property; they were already there and ready to go in case the fire spread out to the insured neighbor's home. So why not go ahead and take his money? While there are a bunch of reasons one might suggest, bear in mind for all of them that the homeowner probably didn't really have the money. After all, this is a guy who chose to not spend $75 or $100 or whatever it was on subscribing to the service in the first place. Desperate people will say pretty much anything to escape the pressure of their desperate circumstances and while I'm not passing moral judgment on that, I do think it's reasonable to not place a lot of trust in a promise made by a person whose house is literally burning down in front of his eyes.

Saving the home would have to have been done as an act of charity by the fire department. One is never obliged to give to charity; that is the definition of "charity," after all. An insurer is not obligated, and in fact would be foolish and doing a disservice to its regular policyholders, to take a premium on a policy at the very time that a loss was occurring.

There is the point that before voluntary subscriptions were available, the fire department simply didn't service this area. A worthwhile point, but none of these economic arguments sweetens the taste of firefighters watching a house burn down.

At some point, we just have to say that a public service has an obligation to serve the public, financial arrangements be damned.

Which is not to say that the homeowner shouldn't pay for the service. Or that the fire department, which is normally paid for by these sorts of subscriptions, should lack an effective remedy for its ability to recoup those costs from a non-subscriber. After all, I'm assuming that despite his (no doubt sincere) promises to pay, he simply won't have the thousands of dollars that this sort of service would cost available.

The real issue is a poverty of remedies in the law. It appears that the way the law was set up, either you paid and got firefighting services, or you didn't and your house burns. I suggest that there should be a third way to go, one that requires and enforces a full-cost payment by the non-subscriber -- enforceable by a priority lien on the property, which is forecloseable within 90 days if mutually-acceptable payment arrangements are not made and confirmed in writing.

The homeowner gets the service and a chance to get back up on his feet, the firefighting company gets paid. Now, if it goes to a foreclosure, the bank gets screwed, a little bit, because the emergency services lien would take priority over the mortgage in disbursements from a foreclosure sale, but this would only be a few thousand dollars and the bank can probably live with that, especially if the house is upside down and the bank is going to wind up taking title on a full credit bid anyway. And the 90-day period allows the homeowner to make new financial arrangements, take a second job if he can, make claims on other insurance if it's available, raise money from charity or family, or as a last-ditch measure, sell and recoup what he can from the sale. If worse comes to worse and the foreclosure has to go through, then yes, that homeowner is now homeless -- which he would have been anyway had his house burned to the ground so while it's cruel to note it, in fact he's not that much worse off than he would have been anyway.

To the rational actor with the ability to pay a subscription fee, advance payment is obviously far preferable to having to deal with a short-period emergency services property lien.

Or, of course, you could simply have a public firefighting service, paid for from property or sales or income taxes, and which recoups its costs as best it can from the properties it saves. That seems to work well here in California. But given that firefighting services must be provided on a volunteer rather than tax-supported basis for particular areas (particularly rural ones), then the automatic priority lien seems to be a good third option that avoids both the moral hazard of rewarding free riders, and the moral inequity of making people suffer.

Rich People Behaving Badly In Tulare County

...Or, reason #1,553 why I do not practice family law. The bit about the youngest daughter seeing the babysitter coming out of the shower wearing nothing but a towel and lying down in bed with the father is perhaps the most salacious detail, but hardly the most outrageous part of the case. The most outrageous part of the case is the way the trial court handled things so consistently in favor of the rich husband that the Court of Appeal reassigned the case to a different bench officer, reading between the lines, to a bench officer whose favor the husband had not yet bought. As Prof. Martin (hat tip) points out, the wife isn't exactly a picture-perfect litigant, either, but she smells like a rose by comparison to pretty much anyone else, including the obviously bratty spoiled middle daughter, and the conflicted "counselor." This case left me wanting a lot of soap to clean all the dirt and scum off.