Draft Day

As far as I'm concerned, Green Bay has done well this week. There is reason to be optimistic about 2007.

Brett Favre is going to return for a final year, and undoubtedly will help train sophomore Aaron Rodgers to take the reins in 2007. I'm glad; I'll get another year to root for the most likeable QB in football. Hey, he can't possibly throw as many interceptions in 2006 as he did last year, right? And, like I say, I think we'll be seeing Aaron Rodgers, in a limited but meaningful capacity, on the field to get ready for Favre's imminent retirement.

Just yesterday, Charles Woodson signed with the team to join the defensive squad. I'm wary of former Oakland Raiders, since that team seems to inspire different kinds of discipline issues than the Packer system likes to see, but he's in the prime of his career.

For its #1 pick today, the Packers chose A.J. Hawk from The Ohio State University. Hawk stole the show all year in Canton and, according to all the scouts, comes to the NFL ready to play from day one. He'll need to learn the defensive schemes, but he can do that -- and he's fast, smart, disciplined, and keeps his eye on the ball.

The clear agenda is to beef up a defense which was suspiciously weak last year. It is good to see the front office showing faith in Favre -- he had a terrible year in 2005, but was beset with an unusual rash of injuries to key offensive players and left without weapons. So the team is focusing its efforts where they are critically needed and making smart moves. Even if there are more problems on offense, with a strong defense and Brett Favre, Green Bay should always have an acceptable chance to win pretty much every game on its schedule. That doesn't mean a 16-0 or 15-1 season, necessarily; just that we'll be hanging in there.

Also, for those following the draft, I commend Yahoo! Sports' and the Sporting News' suprisingly accurate predictions by Dan Pompei. About the only significant mistake Pompei has made in his predictions, at least as of about 3:00 when I'm publishing this post, is the #3 pick of former Longhorn quarterback Vince Young. Aside from that, he's been about as close to dead-on as can be reasonably expected. Move over, Mel Kiper! (Yes, I know Kiper's list looks a lot like Pompei's.)

UPDATE: The Packers played a lot more today after my post. They traded Javon Walker to the Broncos for Denver's second-round pick -- and then traded that pick to Atlanta for three picks from the Falcons. This only a few minutes after the Packers traded their own second-round pick to New England in exchange for two of the Patriots' lower-round picks. They used the only other pick they had today, one of the picks traded from Atlanta, to get an offensive tackle. Big changes are afoot if the Packers value quantity of picks rather than quality. 2007 will obviously be a transition year -- new coach, breaking in the new starting QB, a new receiving corps, a bunch of new defensive and line positions -- and the team is going to get younger. And, I bet, faster. It'll be sad to see some of the old familiar names phased out, but that's what is needed for the long-term good of the team.

Da Vinci Code Opinion Code Revealed

Update from a previous post, in case any of you Loyal Readers care.

Huzzah for Happy Bachelor Lawyer!

Bad Attitude Paralegal called me up today and told me that a case I had been working along with Happy Bachelor Lawyer had just settled. I have a small piece of the action of that case and with any luck, we'll have that money in hand before we return to California.

I did some work on the case, but HBL was the one who a) believed in it way back when no one else would, and b) finally resolved it home after several previous unsuccessful attempts. So he well deserves his lion's share of the spoils. I've no cause whatsoever to complain about my slice of it; it's fair compensation for my contribution. And it comes at a good time, too -- if all goes according to plan, we'll have the money just in time for our move to California.

Somewhat Better

After a more lively and interesting discussion in class last night, I feel better about my teaching abilities. Granted, I had to use a controversial hypo about mosques in the U.S., references to bitterly-contested local political races, and even had to bring in Elvis.

Elvis, you say? Sure. The subject was the tort of misappropriation of identity -- and very few people under the age of 40 know who Bette Midler is anymore. The King, however, seems to have a little bit more staying power in the cultural zeitgeist (at least, here in Tennessee he does). But, hey I kept 'em awake and engaged for three hours.

I'm grateful that I didn't have to resort to slipping amphetamines into my students' diet cokes. That would probably have made the top ten list of 2006's Questionable Pedagogical Procedures. Next week will be easier -- employment law, which I know like the back of my hand, and teaching them how to fill out and serve subpoenas and summonses. These are paralegals I'm training here, not lawyers. They need more nuts-and-bolts and less theory and law.

You Can't Make Chicken Salad Out of Dog Shit

Some Republicans in the Senate (specifically, Chuck Grassley, Ted Stevens, Pete Domenici and Rick Santorum) want to give every American taxpayer a check for $100 to ease the "pain at the pump" because gas prices are rising. This would make them:

a) foolish, drunken sailors spending more money we don't have
b) amazingly unimaginative in their attempt to address a serious problem
c) cravenly transparent in their appeal to voters
d) apparently desparate to keep their majority after so much shit has hit the fan
e) all of the above

Guess which way I'm voting.

You know, it used to be that Republicans (at least some of them) stood for fiscal conservatism -- for watching the national budget, for safeguarding against waste, for crusading against government giveaways of money. But now? The GOP has become the party of massive cash giveaways financed by massive deficits. And I'm not the only Republican out there to be bitterly unhappy with the current state of affairs.

It also used to be -- not very long ago at all -- that leaders in the GOP had audacious new ideas. You might or might not have agreed with them, but they had some imagination and the ability to sell their vision of a better America. Those days are gone. This, however, is one of the most asinine and intellecutally deficient ideas to come out of Republican circles that I can recall in recent history. The country may not be going to hell in a handbasket, but we've got some pretty serious problems to deal with. And the people calling the shots haven't got a clue what to do about it but bribe us with a cash advance on our national credit card.

And the thing of it is, it won't work, on either a policy or a political level. People will cash their checks and it will have no noticeable effect on anything -- not their political approval of Republicans or Democrats, not their gas consumption habits, not the price of gasoline -- it will accomplish absolutely nothing other than draining $25 billion (there's about 250 million taxpayers, who would get $100 each) from the Treasury. Which, in case you've missed it, is currently spending $535 billion more in government outlays than the government takes in by way of taxes and other revenues.

For what? What benefit do we get for borrowing another $25 billion from the Chinese and the Europeans? A hundred dollars at today's gas prices buys a little bit more than 34 gallons of gas. Maybe a weeks' worth of groceries for a family of four -- if they're careful about how they spend it. A single consumer in America is not going to appreciably feel the effects of $100 over the course of the next five months' worth of daily complaints about gas prices. And -- this one's for you, my Loyal Readers who self-identify as Democrats -- is $100 enough to make you change your vote to the GOP?

The logical response to this sort of lunacy offered by the GOP would be to latch on to the Democrats' proposal. But alas, they don't really have one. This is not really a surprise. Sure, Democrats (and some Republicans) want to see the FTC empowered to go after "price gougers." As a threshold matter, the FTC can already do that. But more importantly, what does "price gouging" mean in an oil market like this? The Democrats' call for investigation into price-gouging will reveal these facts which I suspect the Democrats would rather not be identified with:

The retail gas stations are reacting to prices more or less imposed on them by their suppliers. As always, they are making little to no profit on selling gas -- so it's very difficult to properly place the blame on the guy running the corner station for the price he has to charge.

Refineries are offering the somewhat mysterious excuse that they are still switching from winter blends to summer blends of their product (strange that they didn't foresee the change in seasons coming and time the creation of their product to match) and the somewhat more concrete justification for their high price that the federal government, under the leadership of Presidential candidates needing to pander to Iowa caucus voters, and directed by the aforementioned Senator Grassley, has mandated phasing out the use of MTBE as a refining catalyst in favor of corn-based ethanol. That phase-out is expensive and the new product does cost more to make. Maybe it's the right move anyway, but it is a credible portion of the reasons why gas costs more now than it used to. Anyway, refineries are running slow and more expensive than they used to, and the fault for this lies in forces beyond the refiners' control.

Real answers rest in crude oil prices on the global market. What's been happening there? Supply is down -- many of the Gulf of Mexico's platforms are not yet recovered from last year's hurricanes, and Iraqi oil has not yet returned to the global market because after three years of U.S. occupation, the pipelines have still not been adequately rebuilt. Now, Iraq's oil used to find its way to Europe and Japan rather than the Americas, but it's still pressure on the global market. Political instability in Nigeria is affecting its output, as well. While supply is diminishing, demand is increasing, particularly from newly-industrializing countries with massive populations (India and China) and the expansion of large-scale industrialization into eastern Europe. If you, Loyal Reader, have ever taken microeconomics, then you can tell me what happens when demand increases and supply decreases.

So to sum up -- who's to blame for the various factors behind rising gasoline prices?

• Problem: Seasonal changes in refining techniques.
• Culprit: nature; limits on existing refining technology.

• Problem: Increased cost and delay in using ethanol instead of MTBE.
• Cuplrit: U.S. Federal government.

• Problem: Decreased supply to U.S. of Gulf of Mexico crude oil.
• Cuplrit: nature.

• Problem: Decreased supply to global market of Iraqi crude oil.
• Culprit: Iraqi insurgents preventing completion of pipelines (how they got into that position and why they are still in that position is a different issue).

• Problem: Increased global demand for refined oil products.
• Culprit: World Bank, WTO, governments of India, China, and the G8 nations (notice inclusion of U.S. Federal Government) for fostering rapid industrial development in emerging nations.

• Problem: End user prices for refined oil products increasing to uncomfortable levels:
• Culprit: High-school level microeconomic principles.

Yes, oil companies are making big profits. That's to be expected when they are the ones selling a product that is in high demand and short supply. That's not price-gouging -- that's just how economics works. Do you want to spend less on gas? Drive less. Can't figure out how to drive less? Then suck it up, buttercup! The problem lies not with price-gougers but with poor decisions we have made as a people. Who's to blame for high gas prices? You won't like the answer if the question bothers you that much.

The other day when I filled up the Blue Bullet ($2.79 a gallon here) I overheard a guy loudly complaining that it cost him over $100 to fill up his boat last weekend to take his kids water-skiing. That distills America's attitude about rising oil prices into a single, telling vingette. And guess what this dude is going to do with his $100 check from Senator Stevens when it comes later this summer? Taking his kids water-skiing again -- this time on the public's dime. "You're welcome, dude!"

It's just a bad situation. Nothing is going to change it. Americans simply aren't going to change their fuel consumption habits no matter how much gas costs. You know that statement is correct, and in each of their craven, politically cowardly hearts, so does each and every Member of Congress, including these four yahoos who can't think of anything better to do than bribe you with your own money.

So I'm not asking you to trade in your big, heavy, gas-guzzling SUV or to walk three blocks to the 7-11 to buy your lottery tickets and cigarettes. I alredy know you're special and it's really the other guy who should conserve to drive down demand. We've already been over that. But look. Doing a rain dance in a drought doesn't make it less likely to rain and it doesn't cost anything. So dance away and hope for the gas fairy to show up. But lighting $25 billion on fire isn't a no-cost rain dance. $100 won't make a damned bit of difference to you, me, or anyone else -- and it's probably best if we all just toughen up and pay for our gas the old-fashioned way -- with real money.

No Wonder The Judgment Took So Long (UPDATED)

The judge who wrote the judgment in The Da Vinci Code copyright case has apparently embedded a secret code in the text! You can find a copy of the judgment here. Decoding it is far more work than I care to do and the opinion itself is quite interesting -- especially contrasting the way Justice Smith reported on the facts of the case and the way an American judge would have. Justice Smith has plenty of both kind and unkind words for pretty much everyone except the plaintiffs, for whom he has substantially more unkind than kind words. Well, he did rule against them, after all.

If you've got the idle time and the interest in such matters, there should be a tremendously good time to be had picking out the code and trying to figure out what he is saying.

UPDATE (April 29): Some lawyer with way more time than me figured it out. "Jackie Fisher, who are you? Dreadnought." Admiral Fisher of His Majesty's Royal Navy was the driving force behind the creation of the HMS Dreadnought, at the time the largest battleship ever made. Apparently, Judge Smith is a naval enthusiast. So there you have it. Kind of disappointing.

For My Wife, The Funniest Picture In My Library

The Wife is a real trooper sometimes.

She's indulging me as I experiment with controlled growth of facial hair, even though she doesn't much like it. She asked what color hair I would like to see her try, and even though she had misgivings about the color I picked, she did it anyway. She's motivated to learn Spanish and Italian when me move back to California. And this afternoon, when cute little Jordan puked up the kitty treats I had given her, The Wife cleaned it up so I didn't have to lose my lunch doing it.

So in tribute to her desire to learn Spanish:


I love you, honey! Even when the cat isn't barfing!

Infelicitous Reporting

I don't know yet what to think about the latest leak story -- a CIA officer had conversations with reporters in which she divulged classified information. Or maybe she didn't. Or maybe she was instructed to do it and got fired for it. Or maybe she wasn't instructed, but thought she had been. Or maybe she's a scapegoat who is being sacrified to district the public from something else. Or maybe she's the victim of a political purge. Way too many different theories, not nearly enough facts.

ABC News isn't too helpful, either:

CIA spokeswoman Jennifer Millerwise Dyck declined to comment on McCarthy specifically, citing the agency's obligations under the Privacy Act. However, Dyck said the officer in question was not terminated for having authorized conversations with reporters. "It was for having unauthorized conversations with reporters," she said.

Huh? I had to read that something like five times before I caught the difference:

...Dyck said the officer in question was not terminated for having authorized conversations with reporters. "It was for having unauthorized conversations with reporters," she said. (emphases added.)

Yes, that makes sense now. Maybe it's my fault for spending all damn day reading fine print on my computer screen. But maybe the reporter could have used a slightly different phrasing than the source for the second sentence of that paragraph, too.

Miserable Failure

Go to Google's main search page. Enter the phrase "miserable failure." Hit "I'm Feeling Lucky." You will either snort with laughter or be quite upset.

Portfolio Update I

Most analysts would say that I had a pretty good week.

American Physicians Capital rose 3.08 points in one week's time. My stake in ACAP went from $13,908 to $14,832, earning me nearly a thousand dollars. ACAP was my biggest winner.

Electronic Arts rose .48 points. Net gain: $144. GlaxoSmithKline went up two-thirds of a point, for another nice gain of $132.

Other nice performers were Boston Beer Company, rising 1.23 points for $615 in gain; ExxonMobil rising 2.36 points for $472 in gain, and the big mover, Union Pacific, rising 4.2 points, for a gain of $420.

The only "loser" in the bunch was Apollo Group, which experienced a net gain from Tuesday to Tuesday of zero. If the worst pick in my bunch stays stable, I can life with that. I'm also still convinced that Apollo is a "fallen angel" and worthy of investment attention. There were several points in the past week that I could have sold out of Apollo at a profit, but the rules of the game are I visit the portfolio once a week.

So in one week, I've turned $100,000 into $102,707. With a real trader, I've may have only barely cleared my loads and fees, which usually run between 2% to 3%. I remember that there was some e-trade company that is offering trades at $7 each, regardless of size, and maybe that would be the way to go; I'd have only lost $28 for a net gain of $2,679 in one week. Like I say, a good week.

So what to do for the next week? Some of my big movers -- ACAP, SAM, and XOM -- seem like definite holds. I'm going to put my money where my mouth is on APOL and hold on to some of it, too. But It's time to lock in the UNP profits. The cost is high enough that even a small drop is a problem. APOL is not doing anything, so I'm going to sell half my stake in that. A quick scan of the headlines reveals that the President is going to try and depress gas prices by cutting oil taxes, which is certain to get traction in this political climate. Time to sell XOM; otherwise, it would be a hold.

That leaves me with more than $36,000, which of course it only makes sense to reinvest. One stock that caught my eye was XM Satellite Radio (XMSR). It opened at 21.80 today and seems to be at or near a six-month low. I'll take a flyer on it for about $10K, buying 500 shares.

One to watch -- but not buy today -- is Unilever (UN). A lot of the foods you buy and the products you use in your home are made by this conglomerate. The stock behaves in a really spikey fashion and right now it's on the high end of that cycle.

So maybe the way to go is big, blue-chip. Auto manufacturers have been taking a bath recently; maybe this is a good place to pick up something cheap. Ford Motor Company (F) has split so much recently today's opening price is 7.00. At $7 a share, I can get a lot of it and really ride out shifts in the market like a penny stock. So I'll buy 2,000 shares.

I'll put the rest in the company that provides ambulance, rescue, and fire services here in Knoxville, Rural/Metro Corporation of America (RURL). It does so for a great many mid-sized communities around the U.S. and based on what they're charging me, they must be making a profit. They also announced that first-quarter earnings figures will be posted before the opening of the NASDAQ in a few days, which suggests to me that they have good news for their investors. That means I'm becoming one, again at a penny-stock price, this time of 8.00 per share -- 1,250 shares worth.

TL's test portfolio of stocks in companies-that-I-deal-with-or-which-make-products-or-services-that-I-like (and companies-that-I-think-are-doing-well-at-the-moment) now consists of:

ACAP: 300 @ 49.44
APOL: 200 @ 53.15
ERTS: 300 @ 54.87
F: 2,000 @ 7.00
GSK: 200 @ 53.38
SAM: 500 @ 27.41
RURL: 1,250 @ 8.00
XMSR: 500 @ 21.80
Cash: $1,412.00 (paid for 13 trades @ $7 each)
Total Portfolio Value: $102,616

Downtown Los Angeles Redeveloped

Today, I read in the New York Times about plans to redevelop downtown Los Angeles. That may seem odd, but so does the proposed design. Unfortunately, the architect behind the overall plan is Los Angeles' own Frank O. Gehry, who is the man held responsible for the artistic travesty that is Loyola Law School. Oh, he has some nice elements here and there, but overall his rejection of symmetry, fascination with chain link fencing and other heavy industrial forms, and embracing of curved, sweeping forms for major buildings creates a world that looks like the cartoons where Bugs Bunny visits Marvin the Martian.

I'm not opposed to the idea of redeveloping downtown Los Angeles; I spent a lot of time there when I worked in the insurance defense firm downtown and, in fact, during my entire time living in the Los Angeles area. Downtown L.A. kind of sucks, actually, and it could use all the help it could get. As The Wife and I will be moving back to the area shortly, it's entirely possible that we'll be visiting this area in the future. And it's likely I'll have appearances in downtown L.A. which will mean I will get to deal with all the construction that will undoubtedly be taking place up and down Temple Street. But I'm convinced that trying to get professional Angelenos to live pedestrian-friendly lives in downtown L.A. is like trying to change the direction of the wind by spitting into it.

So what will the result of all this construction, sure to make my professional life miserable until 2016, be? Something like this.

The plan seems to have two main parts. First, there is what promises to be very nice greenway going from the music center, through the county building complex, and ending at City Hall. Second, and more important to the developers, a high-rise hotel tower and a mid-rise condominum tower, and a couple of three-story retail "pavillions" -- read: high-priced, hopefully attractive, strip malls. These will be located where currently, my favorite courthouse parking lots are. Where I will park when I have to appear in the central courthouse is a good question.

Sales of the condominiums and retail leases are the financial engine that will power the project. The open areas near the retail pavillions look like they'll be mostly-paved with some tree-lined paths. It could be good-looking; the alignment of the buildings at strange angles will take a little getting used to and presents kind of a jumbled look at first glance. Maybe that's what Gehry is going for.

I hope they include a real grocery market in those retail pavillions; downtown L.A. still lacks retail grocery shopping, an absence I noted fifteen years ago when I first moved to the city. The Grand Central Market is nice for cheap restaurant-quality* produce and bulk staples, and a good place for me to practice my español de mercado, but the times I've bought meat and fish there I've been badly burned. Maybe if I didn't have to haul my food in a car forty-five minutes to get it back to my refrigerator I'd have had results that inspired greater confidence.

It would make sense; the idea is to inspire a pedestrian community in downtown L.A., one which includes both rich and not-so-rich people. That means they need pedestrian access to grocery shopping. But there are several problems with this vision.

First, rich people, in Los Angeles as elsewhere, don't want to be near not-so-rich people. That's why they live in exclusive neighborhoods. That's true in ultra-urban environments like New York City, where rich people live on the Upper East Side and Central Park South, and it's true in more rural envrionments like Knoxville, where the rich people live in Cherokee Hills and in their gentlemans' estates outside of the city, and apparently soon to be in the "upscale" (that's code for "too expensive for the likes of you, TL") Northshore Town Center.

Second, a community needs a critical mass of people who live near one another and interact with each other in more than a retail setting. According to the Times, the planned housing tower will have "150 lofts and condominiums and 100 affordable apartments." Assuming that every one of these units has a family of four, that's 1,000 people. That's not enough to support a reasonably-sized grocery store. I've been to Trader Joe's on days that a single store must have got 1,000 customers in a single day.

With so few local pedestrian customers to support all of this commercial activity, it will have to be a destination for people who live in other parts of the city or the retail side of the project is doomed to fail. But it's like pulling hen's teeth to get Angelenos to go downtown for any reason but work or professional sports. There are several reasons for that: traffic is invariably awful; parking is difficult to find, inconvenient to the destination, and expensive; there are lots of homeless and other creepy types hanging around; the financial center is a spooky ghost town on the weekeneds and after about 7:00 p.m. The Latino population from East Los Angeles Chavez Ravine does gather in downtown to shop at Grand Central and the stores up and down Broadway, but these are working-class people for the most part who won't be able to afford the four-dollar café lattes and So I really don't see people from Silverlake or Beverly Hills or Santa Monica or Pasadena headed down to Grand Avenue to shop and hang out as anything other than a novelty.

Third, what kind of a "community" will this be? The kinds of people who buy upscale downtown lofts are the kinds of people who don't have kids -- they're young professional hipsters or professional empty-nesters, both of whom have substantial disposable income. And what's going to happen with the "100 affordable apartments?" Gentrification, that's what; more of these yuppie-types are going to move in there, too, along with some students. Warehouse workers are not going to live there. So realistically, we're talking about 400-600 people who live in these buildings. That's not nearly enough to form a "community." Even if you had the 2,000 or so other loft dwellers in the downtown area, that's still not really enough to form a "community." And since, as I've argued above, this will be a group of some rich young professionals, some rich older professionals, and some working-class Latinos, there will be precious little mixing of these groups amongst one another. These balkanized groups will not mix with one another readily, and the residents will all feel isolated and out of place.

Fourth, where will they all park? In six-level subterranean lots underneath the buildings? I guess that's inevitable. Where will they work? Some from home, some in the financial center, I suppose -- that would be nice for them, to be able to walk a few blocks to work. But jobs are fleeing downtown Los Angeles for exurban areas faster than they are flooding in. My former insurance defense firm, which is committed to remaining downtown, moved from the office I knew at Sixth and Grand to another building on the southeastern outskirts of downtown, on the "west bank" of the Harbor Freeway on Wilshire Boulevard. That's a little farther than some Angelenos, particularly urban professionals, would care to walk, especially over bridges crossing a noisy, crowded freeway.

Maybe I'm just being a naysayer and this project will blossom beautifully, catalyzing a renaissance of middle-class urban living in downtown Los Angeles. But I think that Los Angeles is fundamentally different from a place like New York or San Francisco or Philadelphia, where it's expected that a substantial number of professional people will live in urban loft condominiums near their offices, and have ready pedestrian access to the shopping and services they demand. In Los Angeles, the expectation is that a professional person will drive some distance to work. It's also quite unusual in Los Angeles to know and have friendships with many of your neighbors. Even these downtown dwellers will need ready access to their cars to the kinds of things that professionals like to do, like go to the beach, the Hollywood Bowl, and visit their friends in other areas. So I'm skeptical that the kind of community that Eli Broad & Co. have in mind for Grand Avenue will ever appear and this will turn in to one of the more expensive boondoggles Los Angeles has seen since the Green Line.

* By "restaurant-quality produce" I include fruits and vegetables that may require a bit of work before it becomes pretty because not all the fruit and vegetables are "fancy"; wilted outer leaves of lettuce must be peeled away, rotten parts of strawberries must be pared out, and so on. The food is perfectly good to eat and tastes wonderful, but to the inexperienced eye it can look imperfect.

A Busy Man

No blog entry for several days. Sorry, Loyal Readers; I've been busy. It's astonishing to me that, for a man with no regular job, I should be so busy all the time. How did I ever keep up when I was working at LOOTGM? How will I keep up in a few months when I am working full-time again? I certainly look forward to doing that, but there are so many distractions and demands on my time right now that I despair of ever getting much done other than at the last minute.

Thursday and Friday, The Wife had a temporary work gig at a company in downtown Knox. The Wife asked that I drive her to and from work, and that I also drive down to have lunch with her both days. Being a loving husband who can't say no to an innocent request like that, I did what she asked. The drive took more than twenty minutes each way -- that was close to two hours spent in the car playing chauffeur. Not that I mind spending time with The Wife, but objectively, the travel back and forth was a lot of wasted time.

Friday, I taught my online classes in the morning and dealt with something in the California firm after again meeting The Wife for lunch -- I just stayed downtown and worked at Panera Bread rather than come home again. After that, The Wife and I went to The Estate At Louisville and helped prepare dinner with my mother. We got caught in a very intense thunderstorm on the way home, and had to pull off the road and wait out dime- to nickel-sized hail. That night, I watched Doctor Who with The Wife in the evening.

Saturday was completely shot with the RET dinner party at our house. After teaching in the morning, The Wife got her hair cut while I shopped for the raw material to make a table full of tapas, and everything got ready just in time for the guests to show up. Our friends stayed until late in the night, and we got most of the cleanup done before turning in.

Yesterday we were exiled for several hours after I mowed and weed-sprayed the front yard (there are dandelions everywhere) to prepare for a showing of the house to backup buyers in case the pending deal falls through. We ran errands all morning and most of the afternoon. In the afternoon when we got home, I again taught -- for once, my online students have been very active and intellectually engaged where my live students are not -- and filled up with stuff around the house.

What I really want to do is work on law stuff. Unlike pretty much everything else that has been demanding my attention for the past several weeks, it earns me money, it gets something accomplished, and it's what I do for a living so it gives me pleasure to get the job done. So far today I've been able to find time to get a reasonable amount of that work done, but I'm grateful for calendar support -- something I've always needed in every phase of my professional career -- in order to not blow some deadlines. Fortunately, nothing has slipped yet but thanks to a too-full schedule of other crap going on in my life things that I have to do here in Knoxville, one matter got cut a little closer to the bone than I would have preferred.

If I had infinite mental discipline, superb time management skills, and the intellectual energy to focus on all my tasks, I wouldn't feel stretched so thin. But I have finite mental discipline, time management skills that are fair at best, and after a certain amount of devoting effort to a wide variety of tasks, I experience mental burnout and need to just relax. In other words, I'm only human.

I'd dearly love to have the time to identify, research, consider, and write about some meaty political or legal issue. There's no shortage of these kinds of issues going on now. About the only thing I've caught recently has been Prince Harry demanding to be sent to the front lines in Iraq with the rest of his regiment, which I think shows some real stones. But aside from expressing admiration for the bravery of this young man who could easily engineer a safe military assignment for himself but instead is eager to shoulder his duties, there isn't a whole lot to say about that story. I know there's only so much interest out there for information like how The Wife dyed her hair a very pretty shade of red (although I like it).

So maybe tomorrow I'll find the time to read an entire news site or scour the net for something of interest to comment on. But right now, I'm going to make myself some dinner, and then get back to work. There's a lot coming due on Thursday -- a pleading has to be filed, I have to make a telephonic hearing, and I have a live class. Tomorrow I'll have lots of papers to grade and lots more work to do. And I'm already feeling a bit burnt-out; this post is made out of "blogger's guilt" -- the bad feeling I get when I don't post for a while even though I know there are no consequences for my failure to update the blog.

Dud Class

After such an exciting live class two weeks ago, I was unhappy about having to take a week off and start my momentum over again. And losing momentum is exactly what happened; my class was a bunch of duds tonight. Only three students participated at all and it was like pulling teeth to get anything out of them. The Wife came to speak about her experiences in the Knoxville legal market and they were even kind of duds for her. After I spend half my day getting ready for the class, it's kind of a letdown to have to just lecture and not get any real participation from them.

Asking Price

Our house has been on the market for five days. Today, we received an offer to buy the house at our asking price. While that would have been about right in the real estate market The Wife and I left behind in California two years ago, it is a phenomenally fast turnaround time for Knoxville.

There are a few details to iron out, like how much of the closing costs we will pay, when the closing takes place, and so on. But seeing as the asking price is more than seven thousand dollars over what we paid for the house six months ago, we've got no cause to complain at all.

At this rate, we'll be back in California in mid-June, somewhat ahead of our projected schedule. That's pretty cool.

Stocks

I don't have a ton of extra cash right now, but I've always been curious about the stock market. So I'm going to run a thought experiment here. Let's say I had money to invest. How would I do it? I'll create a hypothetical portfolio with an initial stake of, say $100,000, and I'll buy seven or eight stocks. Every week for a month, I'll check back and make trades and see how I do. I have no training at all in reading the market, so I'll just pick stocks that I expect will perform well, and in companies that do things I'm interested in.

If there's one thing that my recent research into the world has taught me, it's that insurance companies and oil companies are making killings right now. Earnings drive the market, and those are two areas where I know earnings are huge.

Gasoline prices are only going to rise over the next several weeks. So we'll go big with 200 shares of the world's biggest and most profitable company, ExxonMobil Corporation (XOM), opening today at 62.49; blue chips don't get bluer than this.

I know from my own research into the market that insurers are charging sky-high premiums for malpractice coverage. A company that seems to be undervalued by the market right now is American Physicians Capital, Inc. (ACAP). ACAP opened today at 46.36; I'm getting 300 shares.

I like beer. Who doesn't? So for fun, let's invest in Boston Beer Company, the makers of Samuel Adams Beer (SAM). Today, SAM opened at 26.18. At such a low price, 500 shares is within my budget.

One of the more interesting factoids I've come across is that there are only seven rail portals across the Rocky Mountains connecting the Pacific coast with the rest of the country. Six of those portals are controlled by Union Pacific Railroad (UNP). That's got to be good. UNP opened today at 92.69. Because the price is so dear, I can only afford 100 shares.

The University of Phoenix is owned by the Apollo Group (APOL). Apollo Group just got hit with a ten million dollar fine for student recruitment practices violations. I can attest from personal experience that the business model works just fine, as long as they're allowed to keep it up. Because of the recent fine, the stock is undervalued at 53.15; it normally trades in the 57-58 range; an undervalued stock deserves a big buy, so that's 400 shares for me.

For long-term capital and risk-return, the pharmaceutical industry is probably the most interesting one out there. I've selected 200 shares of GlaxoSmithKline (GSK), opening today at 52.72.

Finally, I've got to have a "fun" stock. What could be more fun than beer? How about video games? Electronic Arts, Inc. (ERTS) is a big publisher of video games in a lot of formats and looks churnable at 54.39. I'll take 300 shares.

So, to sum up, here's TL's portfolio:

ACAP: 300 @ 46.36 ($13,908)
APOL: 400 @ 53.15 ($21,260)
ERTS: 300 @ 54.39 ($16,317)
GSK: 200 @ 52.72 ($10,544)
SAM: 500 @ 26.18 ($13,090)
UNP: 100 @ 92.69 ($9,269)
XOM: 200 @ 62.49 ($12,498)
Cash: $3,114

We'll check back in a week and see how the portfolio performs.

Home Improvements

To give you Loyal Readers an idea of what we've done recently, here is a picture of the spare bedroom. This is just a detail, showing one corner of the spare bedroom. Previously, there was beige pile carpeting with plain moulding. Now, you can see the laminate floor and the quarter-round, mitre-cut to fit nicely in the corner of the room by TL himself. With able assistance from The Wife and TL's dad, the job got almost done in a day, and now only awaits the final detail -- the door threshold -- to be complete.

And here is the master bathroom. I include two pictures -- to the left is "before" and below this paragraph is "after," so you Loyal Readers can see the effect of adding the chair rail. The "after" picture should be expandable to view in greater detail; the other pictures are compressed normally, and focuses on the chair rail. The chair rail provides a better separation between the two colors of paint on the walls; now with the rail in place, the two-color scheme works well. I think it's a very "Fer-ench" look. We've been wanting to get this done for some time now, and this has been one of those tasks that were small enough that we kept on putting it off as not urgent enough, and just large enough that we didn't want to get started until we found time to devote to the project. The imminent showing of the house was probably the impetus we needed to get the job crossed off the "to do" list.

As The Wife points out, the prospective buyers were here for at least an hour and spent some time standing in the street speaking to someone else who we assume was the real estate salesperson. Hopefully, our hard work has paid off and they were talking about putting in an offer. We've tried very hard to make La Casita look inviting and homey. All our guests have commented on what a good job The Wife has done in making the place look nice, and that can only be to our advantage now. Hopefully, we can get in and out of escrow quickly and look forward to returning to California in June!

Wal-Mart Really Does Sell Everything

These were on the discount aisle of our local Wal-Mart tonight. Now, so far as I know, I'm still capable of making my own. But, some guys can't, and for them, $6.87 for a package is probably a pretty good deal. Hopefully, they come from a reputable manufacturer.

No Zen in DIY

We're trying to sell our house so we can move to California. For the past two days, I've been working on the house to get it in good shape. Yesterday, my dad and I put in a laminate floor in the spare bedroom, after The Wife and I ripped out the old carpet. We didn't have enough quarter round to complete the task, so this morning The Wife and I went to Home Depot and used a gift card we had left over from our wedding to help buy more quarter round, a threshold, chair rail, and new fan blades for one of the overhead fans. It's quarter to seven now and I haven't got a lick of real work done because I've been running around all damn day getting the house in shape for showing.

Along the way, tensions ran high. The Wife is wound up tighter than a snare drum about this whole affair. The way she normally vents stress is by cleaning. When having things be clean is what she is stressing about, it can get difficult for me to cope. She wants to be involved in and have a hand in doing everything. Maybe that comes from watching so many home improvement shows where it only takes half an hour to completely transform a shabby house into a beautifully-decorated one. But either way, it's hard for her to let go of control of this process, and let events take their natural course.

So, although I didn't think we really needed to do it, we steam-cleaned the carpet today at her insistence. The steam-cleaning didn't do a thing about the spots she was concerned with. The new chair rail and the new laminate floor look great. I still need to solve the threshold problem, because no store sells thresholds low enough and with wide enough grooves to fit our laminate floor.

So, when we got home tonight from allowing the real estate agent and the prospective buyers to complete their view of the house, she wanted to call our real estate agent immediately -- we hadn't even been home five minutes and she wanted to call. I'm content to wait until tomorrow.

Not everything is going to go smoothly in a process like this. I realize that, and so does The Wife -- but we seem to have different reactions to the speed bumps life throws at us. The threshold still doesn't fit -- what should we do about that? Eventually, I wind up just doing what she wants whether I think it's a good idea or not just to end the conflict when we have a dispute like that. That's probably not a great thing for a litigator to admit he does, but it's the truth; at some point I wind up weighing the stakes (having The Wife pissed off at me for hours, if not days, over a dispute about finishing a DIY project) with the value of winning. Later, I remember that she probably wasn't really mad at me and I wasn't really mad at her. But it's not a good time.

Things got heated like that more than once today -- I nearly lost it with her on more than one occasion; the fact that my knees and shoulders are very sore from all the DIY work involved in selling the house, and at this point it hurts to sneeze doesn't help. I also need to create a new online class that is supposed to start tomorrow. I try to be patient and mostly I succeed, and I know that she's occasionally upset with me, too. That, more than anything else, makes this process unpleasant for both of us.

I know there isn't much I can do to stop her from freaking out about this process. So I very much want the house to be sold -- so that The Wife can put this stress behind her. That's both self-interested (it's no fun to be me when The Wife is stressed out) and selfless (I don't want her to be stressed out; I'd like her to be happy and comfortable with what's going on).

I'm exhausted on every level -- mentally, physically, and emotionally. And now -- now I get to start doing my real work. Yay.

Shooting the Messenger

There’s been a lot of commotion over what seven retired generals have recently said about the war and specifically about Secretary of Defense Donald Rumsfeld and how he has been handling the military for the past five years. Some suggest that this many officers running from the war means that we are losing; others suggest that other motives may be at work here like resistance to reforms requiring more cooperation between the four service branches.

I thought it would be useful to see their own words what these retired general officers have said:

Retired Marine General Anthony Zinni was the first. In 1998, Gen. Zinni wrote: “I think a weakened, fragmented, chaotic Iraq - which could happen if this isn't done carefully - is more dangerous in the long run than a contained Saddam is now ... I don't think these questions have been thought through or answered.” Eight years later, Zinni now says, “I think we are paying the price for the lack of credible planning, or the lack of a plan. We're throwing away 10 years worth of planning, in effect, for underestimating the situation we were going to get into, for not adhering to the advice that was being given to us by others, and, I think, getting distracted from Afghanistan and the war on terrorism that we were committed to when we took on this adventure.” But, Zinni realizes that we’re in the position we are in, not the best of all possible worlds: “…we can't let [Iraq] fall apart. It is part of a whole myriad of issues that we have regarding stability in the Middle East. We're committed to it now. We have to see this through.” Now, Zinni has a new book that he is promoting and has long been a critic of Rumsfeld, so perhaps he’s using unnecessarily provocative and tainted language. But the thing is, he’s not alone.

Retired Army General Paul Eaton, the "father of the new Iraqi Army" has been more directly critical. Gen. Eaton has said that Secretary Rumsfeld “…has shown himself incompetent strategically, operationally and tactically and is far more than anyone else responsible for what has happened to America's mission in Iraq. Rumsfeld must step down. … Rumsfeld has put the Pentagon at the mercy of his ego, his Cold Warrior's view of the world and his unrealistic confidence in technology to replace manpower. As a result, the U.S. Army finds itself severely undermanned… .”

Retired 3-star Marine General Gregory Newbold has stated that “I now regret that I did not more openly challenge those who were determined to invade a country whose actions were peripheral to the real threat – Al Qaeda.” He says that resigned from the Joint Chiefs of Staff in objection to plans to invade Iraq: “I retired from the military four months before the invasion, in part because of my opposition to those who had used 9/11's tragedy to hijack our security policy.” But he regrets that he didn’t fight more on the way out. He accuses Rumsfeld of “McNamara-like micromanagement” and calls for “Rumsfeld and many others unwilling to fundamentally change their approach” to resign or be removed from power. Newbold claims that he wrote these remarks in the New York Times "…with the encouragement of some still in positions of military leadership."

Retired Army Major General John Batiste has stated that “We need leadership up there that respects the military as they expect the military to respect them. And that leadership needs to understand teamwork.” Batiste turned down an offer of an additional star on his shoulder and the #2 position in Iraq and retired rather than continue to work underneath Rumsfeld’s direction.

Retired Army Major General John Riggs says of his peers that they are “a pretty closemouthed bunch,” appropriately so. However, breaking with that tradition, Gen. Riggs echoes Batiste, saying that most of the general officers he knows “pretty much think ... Rumsfeld and the bunch around him should be cleared out” because they have “made fools of themselves, and totally underestimated what would be needed for a sustained conflict.” Of Rumsfeld and his aides, Gen. Riggs says, “"They only need the military advice when it satisfies their agenda. I think that's a mistake, and that's why I think he should resign.”

Army Major General Charles Swannack, former commander of the 82^nd Airborne Division, has echoed Gen. Newbold, calling for Rumsfeld’s resignation because he “…has micromanaged the generals who are leading our forces [In Iraq].”

And just yesterday, retired Marine Lieutenant General Paul K. Van Riper said, "I admire those who have stepped forward, and I agree with the arguments they are making ... I count myself in the same camp."

Gen. Batiste sums up the importance of all of this: “It speaks volumes that guys like me are speaking out from retirement about the leadership climate in the Department of Defense.” He claims that he is speaking for the silenced majority of the military; out of respect for the chain of command and the Constitution, active-duty members of the military are not criticizing the political leadership of the country despite deep misgivings that the nation’s leaders are compounding mistake after mistake in Iraq.

The President continues to feel differently, however, and insists that Rumsfeld is doing a good job. And it’s true that deaths in Iraq have been substantially lower than in previous military conflicts (say, Vietnam) and there now appears to be something resembling a constitution and a parliament there. But there is still nothing resembling a government, which is a different story altogether. We in America take it for granted that if there are elections which are more or less free, and the winners of those elections get to be the lawmakers, that is what it takes for a government. But that may not necessarily be so.

It’s been suggested to me that these men are cowards, or suffer from a lack of honor, for failing to speak out in public before their retirements. They should, like General Billy Mitchell, have been willing to sacrifice their careers if this was so important.

I suggest, though, that running afoul of Uniform Code of Military Justice Article 88 Is pretty serious business. It is one thing to suggest that these men should have been willing to put their careers on the line for the principle of protecting their troops and protecting the country. It’s something else entirely to say that their honor demands the commission of a crime.

The “T” word has been bruited about, with varying degrees of seriousness. Lower degrees of seriousness are obviously appropriate here. Wesley Clark criticized the government shortly after his retirement in 2001 for its policy of military involvement in Iraq and as part of his campaign for President. No one even hinted that he was doing something wrong. If Clark wasn't a traitor for trying to change the political direction of the country and the military, these guys aren't, either.

All of the sound and fury about whether it’s appropriate for these generals to say these things or not is missing the point – and to the extent that these attacks are taken from White House talking points, it is a distraction from the real question we should be asking ourselves. The military is forbidden by law from publicly criticizing the political leadership of the country. There are a lot of good reasons for that to be the case. But as Gen. Batiste says, it is very significant that so many recently-retired generals are making the same set of criticisms at about the same time.

The real point is that these are political criticisms and they raise political questions. Did America ever really have a feasible plan for rebuilding Iraq? Did the administration have realistic political expectations of what would happen after the invasion succeeded in displacing Saddam’s government? Do the Bushmen have the slightest clue what they are doing now? Has the government learned from history – not just Vietnam, but Germany and Japan in the mid-1940’s, the intifada in Israel, and from previous conflicts in the Gulf region?

If the administration’s response to all of this is to attack the integrity of the generals who have stepped forward with these statements, then that is about as clear a case of shooting the messenger as I have ever seen. One shoots the bearer of bad news when there is nothing else politically acceptable to do in response to the bad news. For whatever reason, Bush seems to think Rumsfeld is indispensable. It’s not like Rumsfeld is the only person in the United States capable of being the Secretary of Defense.

Seriously Amusing

An ego the size of his native Guatemala graces this blogger, for whom I secretly suspect English is his first language. His story about science in the morning made me laugh out loud. Have any of my friends in DC ever met him? I have to wonder. He seems to get invited to todos las fiestas and must be very popular with las chicas.

Easter Thursday

Back in California, I barely noticed Easter. Not being religious, of course, I didn't pay much personal attention to it. I remember my (very Catholic) grandmother asking me what I was going to do for Easter one year and I hadn't had a clue that Easter was coming up or why I should care about it. People in California were so heterogenous that it sometimes seemed difficult to find people who cared much about Easter -- and even then, the ones who did went to church on Easter Sunday and had a nice meal with their families that evening. The people with little kids did the Easter egg hunt, because nothing celebrates the resurrection of God's only son from the dead like telling your children outrageous and bizarre lies to the effect that a rabbit breaks into your house in the middle of the night and hides multi-colored hard-boiled eggs everywhere.

Last year, when I worked at the Law Office Of The Great Man, I was quite taken aback to find that Easter Monday was a day off work. I didn't complain; Easter takes place in springtime, and the weather turns very nice here. (Even as I type, I am sitting outside on the screened porch, wearing shorts and a T-shirt, enjoying the view of the newly-green trees on Black Oak Ridge.) An unexpected day off work was pleasant, although I thought it was really silly since Easter is a) a religious holiday, not a civic one, and b) it happens on a Sunday, not a Monday. All the more unbelievable, the Great Man was displeased with me for giving the staff Veteran's Day off work -- that's a legitimate, Federal holiday, when the courts would be closed and created by an Act of Congress. But Easter Monday, sure, take that off, even if you're not Christian!

But just as I observed last year, people go a little bit nuts at Easter here in Knoxville. Everything and everybody gets a day off for Easter. I found out today that my paralegal class for tomorrow is being postponed by a week. There are no Muslim, Shinto, Buddhist, Hindu, Taoist, neo-pagan, Wiccan, or civic holidays occurring on Thursday. And when I asked my students about it last week, they hadn't a clue that Thursday is Passover; the idea of going to a Seder seemed entirely alien to them and I doubt any of my students could pick a gefilte fish out of a lineup. So apparently, my class schedule is delayed to celebrate Easter Thursday, which is a new holiday to me. But a few students seemed a little bit upset at the idea that I would want them to show up to class three days before a religious holiday.

Just another blurring of the line between the secular and the sectarian that happens here in the land where the Bible Belt is buckled, I suppose. And for the most part, I'm pretty much out on my own in being bemused by that fact -- everyone else here seems to take treating Easter as a civic holiday as a presumption, because of course it hasn't ever occurred to them that some people don't celebrate Easter.

Maybe tomorrow to commemorate Easter Thursday, I will buy some horseshoes. We have a horseshoe pit in the back yard here at La Casita Knoxvilla, and haven't had any opportunity to use them. Horseshoes is the sort of game that you see being played every once in a while and you wonder how people ever get good at it because let's face it, most people don't exactly use a lot of horseshoes in daily life anymore. And horseshoes have as much relevance to Easter in my world view as does having to give my students Thursday off class.

Really Too Much To Ask Of Knoxville

A guilty pleasure from Los Angeles is Roscoe's House of Chicken 'n' Waffles. Yummy, fluffy waffles and southern fried chicken. Everyone likes friend chicken and everyone likes waffles -- they're two great tastes that go great together! Roscoe serves them up with a heapin' mess o' collard greens.

Tonight, the Wife and I went out to run some errands and decided to have a cheap dinner out at Waffle House. I asked for a fried chicken breast and a waffle. I was sort of expecting to have to explain what was going on to the waitress, who of course had never in her life heard of such a thing. I also got a look of shocked disdain from The Wife, who apparently had forgotten about this particular culinary treat.

The chicken came back grilled, not fried. The waitress took it upon herself to assume that I had wanted a grilled chicken breast instead of a fried one. It still tasted good, but when the maple syrup makes contact with the breading on a fried chicken, something magic happens. (That would be the "magic" way the plaque on my arteries accumulates.) When the waitress came back to ask if everything was okay, The Wife said, "He's a weirdo."

"No, this is really, really good!" I said. "It's better if you fry the chicken."

"Oh, I could have fried it! I didn't know that's how you wanted it; I just thought you wanted a grilled chicken breast instead. But yeah, I could have fried it. It's just that, well, I've never heard of that before."

"Well, don't worry about it, this tastes fine."

When I got home tonight I made myself a casserole dish full of creamed spinach. Not quite the same thing as collard greens, but close enough. And I don't care if people in Tennessee (even my own wife) think that chicken and waffles are a strange combination. They taste good, damnit.

Mowing Down The Onions

Yesterday I was finally shamed into taking care of the lawn. Actually, it happened on Sunday, but we were busy pretty much all day, so I took care of it yesterday. The front lawn wasn't too bad but the pathway to the front door required weeding. The back yard was a bitch. The back yard is on a fairly steep grade and the lawn mower has is not self-motivated (the engine only runs the motor, not the wheels) so I've got to power it up and across the grade. Add to that the fact that the grass had grown to nearly flowering height in a few patches, and it made for a long, exhausting day. My legs and arms are still feeling it now. I went to bed at something like 9:00.

I'm hoping that successive mows go a little easier. With less tall grass to negotiate through, it should take a bit less brute force to get the job done. At least this wasn't as miserable the mowing experiences I had back at The Estate At Louisville, although it was more physically demanding. I can certainly use the exercise.

While weeding the front walkway, I found what looked like wild onions growing in the yard. A glance around revealed that they were growing all over the place. Some were growing near a dandelion that I dug up; it had small while bulbs and long, thin, green shoots. It smelled great, like chives or garlic. I briefly considered eating the shoots but decided against it when I realized that I had no real idea what the plant was -- onions or shallots would be fine, but there are other plants out there that might be less beneficial to the human digestive tract. There did not seem to be any of these wild onion-bulb things in the back yard. I'd post a picture but they all got mowed down yesterday. A little poking around on the web suggests these may be called "potato onions" which would have been perfectly OK to eat, but I'm not regretting my decision to avoid eating these things until and unless I get better information than some random website.

The Wife is taking the lead on finding a realtor, and hopefully with a lawn in shape and a cleaned-up garage, the biggest bits of unsightliness from the home will be resolved and we can present an attractive house to the market. The sooner the house sells, onions or no, the sooner we can go back to California!

It's a good thing The Wife is working on the realtor front. I need to get back to the practice today, but there are other competing concerns -- two teaching gigs require some attention today, too.

Active Liberty (Long Sidebar)

I led the RET book club's discussion tonight, having chosen the book for discussion, Active Liberty: Interpreting Our Democratic Constitution by Stephen Breyer, and it was a great success. It was a great turnout; more people than usual showed up for the discussion, and for a while, it felt like herding cats because so many people were jumping in to the talk. Nearly every lawyer in the group showed up, of course, and a law professor from UT also came and offered quite a few good insights.

On the book, I found myself not alone in my analysis that Breyer is attempting to pick up the flag of William Brennan and "breathing life into the Constitution," nor was I alone in my critique of Breyer's vulnerability to selective emphases in his philosophy to reach a pre-desired result. I did think Breyer was effective at pointing out that a more literalist approach, such as that of his colleague Antonin Scalia, can be and often is every bit as subjective as his own approach to jurisprudence.

There was surprisingly little controversy at all over my critique of Breyer's philosophical stance of deference to majoritarian rule -- that Breyer is too modest and not properly asserting the Court's role as a guardian of Constitutional rights. This suggested to me that there was general comfort with the idea of the courts having an active role to play in the governing of the country. This is refreshing to note, especially given recent activism aimed at neutering the power of the judiciary. But that did not give Breyer much intellectual comfort in our group: "The role of the unelected courts in a system of democratic government is ambiguous, and Breyer has given us a way of looking at how those courts work which is similarly ambiguous," I noted, and that seemed to be a great success.

While it wasn't a bad thing, I found myself pretty much alone in the group when I condemned Breyer's recent swing votes on religious symbols in governmental institutions. Here begins a long sidebar on the Establishment Clause. If you are not interested in my critique of current Establishment Clause jurisprudence, and Justice Breyer's role in fashioning it, you can skip ahead of the block-indents.

Breyer's decisions in Van Orden v. Perry (voting to permit the display of Ten Commandments on grounds of Texas Capitol) and in McCreary County v. ACLU (voting to forbid the display of Ten Commandments on grounds of Kentucky courthouse) were made based on Breyer's analysis of the intent of the people who made those displays, and the differing lengths of time that those displays had been made available. Certainly Breyer was right to note in Van Orden v. Perry that "If the relation between government and religion is one of separation, but not of mutual hostility and suspicion, one will inevitably find difficult borderline cases," and Van Orden did present a much more difficult case than McCreary County. But I think he blew the call -- and thus the decision -- in Van Orden.

As to the application of time (particularly in Van Orden), a violation of the Constitution is not somehow validated by virtue of the fact that it has been going on for a long time. Breyer agreed with the plurality opinion that the passage of 40 years' time without a challenge to the display indicated that it was not an impermissible establishment of religion. But segregation of public schools had been going on for 80 years before Brown v. Board of Education, and that did not make it Constitutionally permissible. The passage of time should not have been a factor at all.

The other question for Breyer in the Ten Commandments cases became one of the intent of the creators of the displays, inferred from the context in which they were displayed. If the intent the law's author is to be considered when evaluating its validity under the Establishment Clause, then why are blue laws constitutional? What is the secular intent of having "In God We Trust" on our money? What is the secular context of requiring a witness to swear to tell the truth under oath with the last part of that oath being "so help me God?" When I swore my oath to become a member of the Tennessee bar, I had to swear to God -- was the oath any less binding to me than it was to someone who actually believes in God? The "tradition" and "history" behind those things are, as I noted above, insufficient justifications.

While I agree that intent and context are relevant and appropriate inquiries in a case like this, they are not dispositive. The result of intent-based and context-based analyses, as Justice Scalia rightly points out, is that the Supreme Court upholds governmental invocations of God when five or more of the Justices likes them, and strikes them down when five or more of them do not. No discernable rule or guideline can result from this kind of jurisprudence, and in that sense the Supreme Court is abdicating its role as the interpreter of the Constitution and assuming the role of a super-legislature, approving here and disapproving there, according to its collective whim.

But where Scalia sees God as an integral part of the tradition of America, inextricably intertwined into all of our national institutions and history, I say that tradition is not something upon which the Court should rely. I first point to the text of the First Amendment, which forbids any establishment of religion, and then to the intent of its Framers, a substantial portion of whom were outright atheists or the functional equivalent in the eighteenth century, Deists who believed only in a passive creator and not in the afterlife. Either interpretation renders the inclusion of religion in a civic activity suspect. Not always forbidden, I will concede, but always suspect.

So an explicitly religious act of the government (like a display of the Ten Commandments) should be presumptively a violation of the Establishment Clause, and require a showing by the government that it is not. This means the government must set forth an important purpose in making the reference to religion, and demonstrate that the reference is not advocacy of religion. Perhaps this departs from the concept that the government cannot be "hostile" to religion -- but not being hostile to religion is not the same thing as fostering it, in even a general sense.

So either the display of the Ten Commandments is religious or it is not. It is one thing to point out (as Breyer does) that the Ten Commandments contain moral guidelines and are part of the heritage of American legal tradition; but it is quite another to ignore that three of the Ten Commandments are explicitly religious and have nothing whatsoever to do with the tradition of law as a secular aspect of the government. I can understand placing Moses holding the Ten Commandments in a larger context of celebrating laws that have governed societies before ours, although I would prefer that it do so only by implication (having the tablets bear only the numbers 1-10 or I-X rather than the text, but I also have a problem with the courts getting into that level of artistic detail).

But I don't think the inclusion of such a religious symbol can possibly avoid being advocacy of religion, even if the advocacy is subtle. Personally, I look at those first three commandments and think, "I don't do those things," and it would obviously be improper if the government made me do them. The government's placing those religious commandments in a position of honor, even within a display that admittedly is mostly secular, suggests to me that at some level, I don't belong, that I am not wanted, that I am somehow excluded. Better in that case to not make the display at all.

But, as I mentioned before, I was out on my own for that issue. Most everyone else at the book club thought that Breyer's analysis of the context and intent of the two displays made sense and that he had made the right calls in both cases. And it's a relatively de minimis matter so long as the government does not demand that I subscribe to a religion. While it irked me to have to swear an oath to God in order to become an attorney here, I did it, and considered the "so help me God" portion of the oath as much a nullity as if I had sworn an oath to the sun. It diminished the solemnity of the moment in my opinion, although I realize that it increases the solemnity of such a moment for others. So it's hard to get worked up in real life about this stuff; while academically the logic of it is as inescapable as concluding that burning the flag is free speech, the import of the issue is not that great one way or the other in practical terms.

Here endeth the sidebar.

While I disagreed with Breyer's book quite a bit (I prefer the "balancing of competing interests" approach of recently-retired Justice Sandra Day O'Connor) I am glad I read the book and gladder still that RET had such a lively discussion of it. Both lawyers and lay people in the book club could appreciate the book, and everyone hungered for a more elaborate description and explanation of what Breyer was talking about. I was very pleased that the lay members were able to understand what was going on and that the subject matter was not too esoteric for them, and for the most part, the discussion stayed at a level of discussing the right way a judge should approach the task of making decisions rather than the substance of those decisions. Leading the discussion was fun. So was hearing different opinions about what the book was about, different visions of the right role of the courts in our society, and most of all, what it means to have a Constitutional government, was very enjoyable.

And, it's important to read things with which you do not agree, to expose yourself to ideas that you wind up taking exception to, from time to time. It keeps the mind sharp and it keeps you intellectually honest with yourself.

Dinner afterwards was also particularly good. I got to sit next to Prof. Stephens, who encouraged me many times to seek an adjunct faculty position teaching writing at the law school. If I were staying here in Knoxville I would do exactly that, especially with the recommendation of a distinguished faculty member behind the application. But that is not meant to be; I'll be back in California before the next semester at UT Law School begins.

I'm really enjoying the teaching gigs. I liked this book club, because it was like teaching -- although at a higher level than a class; about half the participants were lawyers and the other half were really smart laypeople interested in the subject. I had a great class last week with the future paralegals. Online teaching is less interesting than it used to be, but maybe that's because I was so unhappy with a class full of duds. I liked working with the bright students even in the bad class. I have a new online class starting Tuesday, so maybe that'll be better than the last one. It's fun and mentally stimulating; while it doesn't pay as well as I would like, a part-time practice could make up for that. Alas, only too late have I found another piece of the Knoxville puzzle.