Constitutional And Social Problems With The "Lazarus Clause"

A lot of other law blogs have discussed this recent case. So have a lot of other atheist blogs. And of course, blogs by atheist lawyers have been all over it -- except for mine, at least up until now. The reason is, I haven't been able to pick up my mouth from the slackjawed amazement that this story induces. Well, here goes my take on it.

Ria Ramkissoon, 22, of Baltimore, Maryland, is a member of a religious group calling itself "One Mind Ministries." CNN and other news agencies describe "One Mind Ministries" as a "cult." What, exactly, separates the cult of One Mind Ministries from the respectable religions of Buddhism, Christianity, Confucianism Hinduism, Islam, Jainism, Judaism, Taoism, Wicca, and Zoroastrianism, I'm not really sure.

What we do know is that Ramkissoon murdered her infant son Javon in 2006. Javon is pictured to the right in a photo from a Baltimore TV station. Apparently, after meals and prayers, Javon would not say "Amen." So One Mind Ministries' leader, a 40-year-old woman apparently named Queen Antoinette, decreed that Javon was a demon and that he had to be separated from the rest of the congregation. She put the boy in a back room and locked him in there, and Ramkissoon consented to this. The congregation prayed for him, but amazingly, he starved to death despite their prayers. So then the Queen directed the congregation to pray for Javon's resurrection, which, surprisingly, also has yet to occur.

Yesterday, Ramkissoon reached a plea arrangement with the Baltimore County District Attorney. She'll and cooperate in incriminating the other cult members implicated in the death of little Javon, and she'll have to undergo psychological counseling and deprogramming. In exchange, the prosecutor will allow her to plead guilty to felony child abuse leading to death, rather than murder, and she'll get a suspended sentence of 20 years. But here's the catch.

If Javon is ever resurrected, Ramkissoon can withdraw her plea.

Now, the basic plea arrangement is a very good deal for her. She won't do any additional prison time as long as she honors the terms of the plea arrangement. And I think the idea of letting her live with the fact that she had a hand in her own son's death as sufficient punishment for her, and going after the monsters who led the cult to this sort of thing, is also appealing.

But Ken at Popehat hits the nail right on the head. Ramkissoon is clearly still delusional, unwilling to let go of the idea that the congregation's prayers will revive him. Don't we all think that she's a lunatic for really believing that her son is going to come back from the dead? Do any of you Readers, including those among you who are faithful Christians, Jews, Muslims, or whatever, have even the slightest, tiniest, remotest doubt that the dead kid is going to stay dead?

Of course not. You're all smarter than that. And I'll wager further that deep down, you don't think that this is because Ramkissoon is saying the wrong kind of prayers or that she's praying to the wrong God.

The prosecutor has no doubts about the likelihood of Javon's resurrection, either, which is why he agreed to the term here. But as Ken points out:

If she believes that it was God’s will that her son be starved to death so that he could be resurrected, did she appreciate the nature of her actions, and is she able to participate meaningfully in her defense?

If she thought she was simply giving effect to God's will that the demon be driven out of her possessed son, then it is at best very unclear if she even understands that what she did was morally wrong. After all, driving out a demon who possesses someone seems like it would generally be a good and helpful thing to do. (Except when, you know, the exorcism kills the subject in the process.)

Now, I say, if she really believes this, she's obviously not of sound mind. And therefore she's not mentally competent to stand trial or enter a guilty plea to anything. Her grasp of reality is obviously twisted and warped beyond a point that we can count on her to interact with the world in a normal fashion. And that's one of the reasons that a condition of her plea arrangement is psychological treatment and deprogramming. But by making that a condition, isn't the prosecutor basically admitting that he's cutting a deal with a crazy woman, something he shouldn't be doing in the first place?

Which brings me full circle. She believes her son will be resurrected. But then again, don't a lot of religious people believe that they, and their loved ones, will be resurrected in the End Times? Not just Christians, although that's a mythology I'm most familiar with. What is it about Ramkissoon's faith that makes the rest of us conclude that she is obviously deluded, while these other faiths preaching the exact same thing are worthy of respect and, in some cases, held to be above criticism? Indeed, many courts treat a person's avowed faith in a particular religion as an indicator of their moral worth.

There is no principled way to do that. Ramkissoon's faith is presumptively genuine and intense. She seems to really believe that Javon is coming back through the power of prayer. It is simply not a brand of faith shared by a large number of people. And obviously it should not be a defense to murder. But this case, as clearly as many others we might look at, points to the fact that religion's facially ludicrous claims and the constraints of modern society are uncomfortably grafted together and not always reconcilable.

This case makes me uncomfortable as a lawyer because it looks like the prosecutor is toying with the defendant's imbalanced mental state. I think the Constitution demands better than that. It should make religious people uncomfortable, too -- because it exposes the fact that, when evaluated objectively, their doctrines can be used to provide moral gloss for abominable acts based on obviously ridiculous claims -- and it exposes just how ridiculous their own faith's claims really are.

Steve Harvey: Bigot

No shelter. When Steve Harvey goes on the Tyra Banks show and tells women not to date atheist men, he's being a bigot:

You sitting up there talking to a dude and he tells you he’s an atheist, you need to pack it up and go home. You talking to a person who don’t believe in God… what’s his moral barometer? Where’s it at? It’s nowhere. You gotta get into this stuff.

Well, Mr. Harvey, you do indeed. For instance, if you're looking for a marriage that is unlikely to end in divorce, you ought to date an atheist -- we have a lower rate of divorce than Christians.

At the end of the day, Harvey is recycling the old saw that atheists have no morality, that morality comes from Jehovah. It does not. Consider a very ancient conundrum: is an act morally good because it pleases Jehovah, or is Jehovah pleased by an act because it is morally good?

If the only source of morality is Jehovah's pleasure with an act, then what if genocide pleases Jehovah? In fact, the Bible tells us that genocide does, in fact, please Jehovah, and a failure to follow through on His command to commit genocide displeases Him. Evidence? Exodus 34:11-14, Leviticus 26:7-9, Deuteronomy 20:16, most of the book of Joshua. If this is what God's morality is, I'll accept another metric, thank you very much.

Or, Jehovah might be pleased by an act because it is morally good. This indicates that the moral goodness of the act has nothing to do with God. The act is good, or not, on its own merits and God simply evaluates the act and is either pleased or displeased by it. That means that we can bypass Jehovah's role as a moral judge, and act as moral judges ourselves. This, it seems to me, is a better way of looking at morality -- an act is either good or it is not.

And that means that God is irrelevant to judging morality. Which in turn means that Steve Harvey's suggestion that an atheist necessarily lacks morality is necessarily wrong. Atheism has nothing to do with morality. The atheist is -- just like the theist -- either a person who does morally good things, or one who does morally bad things.

Regular Readers of this blog know full well that I, an atheist, concern myself with issues of ethics and morality on a regular basis. I am hardly the only ethical atheist out there in the world.

Now, Harvey was offering dating advice. I suppose it's probably a good idea to find a dating partner and ultimately a spouse whose point of view on both moral and theological issues is similar to your own. I would suggest that if you are looking for a spouse, be honest about who and what you are, and look for someone who can accept and love you knowing those things about you.

But at the same time, Harvey was perpetuating a myth -- one that is illogical, one that is contrary to evidence, and one that is prejudicial against people based on their religions. If Harvey had said "Don't date Jewish men because they don't have morality," we'd be up in arms about that kind of bigotry, and rightly so. This is no different.

H/T to Hemant Mehta and commenters.

The Purposeless Existence: No Excuses Allowed

There is no objective, external purpose to your existence. This is a good thing.

Theists will tell you, again and again, that "God has a plan." When something really awful happens to you, they tell you this as a means offering consolation -- someone bereaved by the recent death of a loved one, for instance, will be told that Jehovah works in mysterious ways and that the death, while painful in the short run, will eventually work out for the greater good. Indeed, bereavement appears to be the most frequent time that theists trot out the "plan" and "purpose" bit -- and the plan is always unknown and mysterious, something so grand and subtle that we humans cannot ever hope to understand it.

I've never understood why such an assurance should be in the least bit assuring to someone dealing with grief. The loss of a loved one is an intense and painful experience, and telling a bereaved person that Jehovah took their loved one as part of some kind of "plan" suggests that this plan is either cruel or imperfect. If Jehovah wants us to suffer, then He is cruel. If Jehovah's plan requires us inevitably to suffer despite His love for us, then Jehovah is not sufficiently clever or imaginative so as to create a plan that allows us to avoid suffering, demonstrating His lack of omniscience. Either way, we suffer, and it's Jehovah's fault. If I were to lose a loved one, I would find the consolation that it's all part of a "plan" to be a weak consolation indeed.

Moreover, if there is some sort of a plan or external purpose to each of our lives, and we all have some kind of a role to play, then that means our lives are much like that of characters in a movie or a tdelevision series. Some of us, necessarily, will be villains. If Jehovah has a plan for me, He must have had one for Hitler, too. Did Hitler deviate from that plan or was the Holocaust part of it? Alzono Fyfe points out that if such a plan does exist, it is difficult to determine what the purpose of such a plan for the author might be other than entertainment, predation, or sadism. But if there is a plan, we don't get to choose our role in it. Our roles have been pre-set, determined already by Jehovah. This suggests that the purpose of the Plan, if it exists, is quite likely nefarious from our point of view.

And finally, the idea that there is a divine plan to our lives flies in the face of the idea of free will. We may have free will, or the illusion of it, but if there is a plan, then Jehovah knows in advance how we will choose to exercise that free will and He has arranged things such that our use of that free will dovetails into His grand and subtle Plan. It amazes me how much effort theists put into contemplating this quite obvious contradiction. If there is a Plan, then there is no free will. The two concepts cannot be reconciled. If fulfilling the Plan is morally good, then whatever evil thing is part of the Plan must not be evil at all, and we should not punish those who do evil because evil acts, too, are part of the Plan.

I reject this notion totally. First of all, it is predicated upon the assumption of an infinitely powerful, infinitely smart, infinitely foresightful, and infinitely subtle Diety, one whose existence is so doubtful as to represent a negligible possibility. Moroever, it is logically inconsistent and renders the diety ethically deficient. And it flies in the face of so many other things we are told about Jehovah -- that He is infinitely benevolent, merciful, and loving.

If you want to tell me that I am wrong, that there is a purpose to our lives and our existence and our suffering and the evil that some people do, then you'll need to do more than throw some Bible verses at me. An argument that I must have "faith" to see the plan is nothing more than a request that I ignore reason and logic. To change my mind, you will need to offer some sort of proof, some sort of objective logic to your contrary argument.

If the "proof" is a series of quotes from Scripture, know in advance that I do not credit any particular veracity or reliability to Scripture. The Bible tells me that π = 3, that the universe is six thousand years old, that the sun revovles around the Earth, and that a man lived in the belly of a giant fish for three days. These things are not true, so anything else in the Bible is going to need external verification, or at least some kind of objective plausibility, before I will credit it. There may well be true things in the Bible; however, in this respect is no more or less accurate than any other document of its age purporting to record the myths and legends of a Bronze Age people.

Personally, I find it remarkably liberating and gratifying that there is no objective purpose to my life. There is no god, so there is no plan. Therefore, if my life is to have a purpose, I get to pick what that purpose is. Being a more or less ethcially good person, I try and pick ethically good things to do with my life. It's true that some people are not ethically good and they will push themselves to do things that aren't good. But they do so of their own volition, and their own choices, and the rest of us can choose to defeat them or to convince them to change their ways.

It's up to us. We don't get to hide our pain or our ethical shortcomings behind the excuse of a divine plan. Each of us, personally, must to answer for, and deal with, what happens in our lives. Because we have only these lives to live, moreover, we must do this within this lifetime. And each of us must answer to the toughest critic imaginable -- ourselves. The good news is that we have a whole universe of options and choices available to us to self-purpose ourselves. We can each contribute to making the world a better place in our own ways. Not to glorify God or to advantage ourselves, but rather for the inherently good and selfless reasons of helping other people like ourselves.

Nice Work If You Can Get It

Here's a breach of contract suit from Germany. Question -- should the plaintiff prevail? Seems like there was a mutual mistake here. You can't say that the guy didn't put in an honest effort in an attempt to, um, perform.

Zoom Art

Sometimes you stumble across stuff that just sort of defies description.

Daybreak

Well, it's finally over. As I wrote before, TV is something you watch at your leisure, and this weekend The Wife and I got around to watching the series finale for Battlestar Galactica.

I really did think it was the best series on television, and with a few exceptions, the shows were uniformly well-written and creative. I can understand why the writers brought the story to a conclusion and I'm reasonably satisfied with the tying together of the mystical elements of the story -- something finally happened with that Opera House motif they'd been working. I also was amused by the cameos of the producers in the final scenes. I'll look forward to "The Plan" and the new series, Caprica, when they come out. But none of it will have the same intensity as the Battlestar Galactica that just ended.

Spoilers from the final episode follow. Stop reading now if you haven't seen it yet. If you have, I'm curious if you share my gripes.

First, Starbuck's status was never really clarified. Was she a ghost, an angel, or what? Clearly she was something metaphysical. But if so, why did she have to die at all? This plot thread seems to have been needlessly complicated.

Second, we now have some idea of an objective existence of the Six and Baltar avatars that appeared to Baltar and Caprica Six, respectively. I was somewhat pleased to see them redeemed and accepted back into society at the end and to see that they weren't completely insane. Although the idea that their avatars were angels -- and smarmy ones at that -- felt oddly dissatisfying on its own. Kind of a deus ex machina (pun intended), one of many relied upon to tie up the storylines.

Third, if Helo and Athena could have a baby, why couldn't Baltar and Six? Never explained. I can accept that Cylons can't interbreed amongst themselves and I can accept that they can interbreed with humans. So that's why John McCain and Six never successfully produced offspring; that's why Boomer and Tyrol didn't, either. But what was so special about Helo that only he could breed with a Cylon mate?

Fourth, they created a new Six character, Natalie, and then never did anything at all with her. I guess she got to be Boxey's babysitter.

Fifth, if Hera became our "Mitochondrial Eve," why weren't genes from the other thirty-nine thousand colonists transmitted to present-day Earth? The writers made a point of indicating that colonists were placed on multiple continents and far away from one another in their settlements, although it would seem that most of them settled in Africa. It stands to reason, then, that DNA from a fraction of the 39,000 other colonists (and multiple copies of the three Cylons that went with them) would survive in present-day humanity, as well. But instead, Hera is supposed to be the mother of all modern humans. Doesn't stand up.

Sixth, how cool was it to see the old-style Cylons in combat, working side by side with the new Centurions? Damn cool, that's what. All in all, a very pleasing final battle between the Colonials and the Cylons. And a nice throw-in of the old theme music, too, when the fleet got run into the sun to prevent detection by any Cylons that survived the final nukes. Counteracting that, though, was the action-and-flashback style of the last episode, which would have been way, way, way more effective if we'd seen those flashbacks in previous seasons and then in this It's not clear the story was arced in that much detail, though.

I don't pretend I could have done it much better than they did. The multiple plot threads had become excessively complicated. But whether the characters figure out how all the threads tie together is irrelevant -- the audience should, at the ultimate end of the story, be able to see how everything fits. I think I would not have killed Starbuck off and then brought her back. And I'd have given a little more back story on "All Along The Watchtower," and how that keyed in to everything.

Overall, though, the writers produced something very new with the premise; they tackled all sorts of interesting issues, both social and political. They kept things seeming credible and engaging, and did a good job coming up with characters we could all enjoy getting to know. It's kind of odd that so many of the major characters turned out to be Cylons or got killed off. But mainly, it's too bad that like all good things, Battlestar Galactica had to come to an end.

Discomfort

On the one hand, it's pretty clear that there needs to be a profound shakeup at General Motors. Rick Waggoner has run the company into the ground -- perhaps he was overtaken by forces much larger than the company, but on the other hand, things started going very badly for GM long before the financial crisis precipitated the general recession. And for whatever reason, the stockholders of GM failed to take appropriate actions to remove Waggoner from his position of authority, something that needed to be done.

But on the other hand, I really don't like that it's the government doing it. I have less of a problem with that if it's happening by way of a court order in a Chapter 11 bankruptcy proceeding, but I do have a problem with the government throwing billions of dollars at GM* and then saying who gets to run the show there and who gets canned.

I've found the spectacle of conservatives crying "Oh noes! Beware the creeping socialism!" very distasteful. But I find the small truths beneath that panic equally distasteful.


* You could put a period right there and it would be an equally true statement.

Creamsicle Cupcakes

The Wife is hopefully not too modest to brag about her creamsicle cupcakes. I grated up some orange zest for her, and suggested using Grand Marinier in the frosting. But she did all the work. Filled with vanilla pudding, the cake has a yummy orange flavor and the frosting is creamy and orangey.

That's what I'll be having for lunch, probably. Nutrition will wait for a later meal.

Play With Richard Dawkins' Toys

In his remarkable book The Blind Watchmaker, Richard Dawkins describes using some basic -- literally, BASIC -- computer programming in the early 1980's to analyze a couple of criticisms leveled at evolution. The first was the idea that random mutations in individual genes can, over multiple generations, accumulate to create very dramatic differences in the outward appearance of a creature. The second was the idea that it is possible to use random changes in the sequencing of a gene to reach an organized result.

Dawkins wrote a program that created a graphic image generated by sixteen variables. The user could change only one of those variables by a small amount of the possible range each "generaton," and after a period of time, the changes become very dramatic indeed. Then he wrote another program that began with a string of random text characters and in the course of fewer then 100 iterations produced a line of Shakespeare -- outdoing the proverbial monkeys by an astronomical factor.

Turns out, you can find both of these tools and either use them or program them for yourself. Neither, by themselves, is proof of evolution's validity. But they do help respond to those specific issues. You can play with the biomorph generator here -- someone has reduced it to a JAVA application, so you can just load it up, click on one of the eleven choices. It takes between twenty to a hundred generations before it starts getting interesting.

And you can see the original programming Dawkins used to turn a string of random letters into the line "Methinks it is a weasel" from Hamlet here. You can see the program run itself here, using the entire ASCII character set rather than just twenty-six letters, here. It gets to the target phrase in between 600 to 750 generations most of the time.

H/T to PZ Meyers (to be honored as the Humanist of the Year, congratulations!) for the links to these toys.

Secretary Clinton Asks A Good Question

However, Secretary Clinton is a Methodist and may well be forgiven by Catholics for not knowing the official RCC story -- the image appeared miraculously on this guy's cloak one day on a hill near Mexico City after he saw an apparition of a sixteen-year-old girl speaking the native language (not Aramaic, which the real Mary would have spoken) and three recently-cut Castilian roses despite its being in the middle of winter. Allegedly, the cloak hasn't faded or deteriorated in any way for over 300 years.

Because the official line is obviously nonsense. If God were going to paint something, is that really the quality of image He would produce? Mary looks a little bit, well, mestizo to my eyes. And indeed, the image of Our Lady of Guadalupe has served as a symbol of Mexican Catholicism ever since -- and in many cases, as a nationalistic symbol for Mexico itself; armies have fought under flags bearing the image of Our Lady of Guadalupe.

None of which makes the myth underlying the image in the least bit credible.

Amusingly, as the article notes, Secretary Clinton placed flowers at the altar of Our Lady of Guadalupe the same day that she was traveling to accept the Margaret Sanger Award.

Jerks Lose: An Informal Statistical Musing

When a result deviates strongly from a statistical prediction of that result, one ought to step back and consider at least three possibilities to explain the apparently anomalous result: 1) sampling bias, 2) evaluation bias, and 3) incorrect prediction. I have a practical application of that suggestion described below.

Before proceeding, however, squeamish Readers should be aware that I use the word "asshole" (or some variant thereof) with astonishing frequency in this post: a total of thirty-three times, including in this sentence and in the footnote.

Now, the issue of statistically anomalous results weighs on my mind today because I served as a pro tem judge in small claims court this morning. I fear that now that I've done this a few times, I'm sliding down the path I've seen so many other pro tem judges slide down -- deciding cases based not on the merits but rather on who I think is the bigger asshole. As I walked out of court this afternoon, I ran through all of the cases in my mind and realized that in every contested matter, I had ruled against the bigger asshole -- sometimes after having to make a difficult judgment call as to which of the two parties was worse.

I've charted the result as best I can from my recollection of this morning's events and graphed them to the right. Note that just as there is a spectrum of being a total bastard to being a nice guy, there is also a spectrum of winning, meaning the closeness of the result the party sought to the judgment I actually rendered.

Generally, you can see that assholes lose and nice people win -- in one case, the nice person admitted liability but disputed the amount owed, and prevailed as to that argument. Because there was a net judgment againt the nice person I rate that as a loss, but very close to the center axis. (The other party in that case was not a huge asshole, by the way, just a moderate one.) But the trend is pretty clear.

Now, in a couple of cases, I also worry if I get the law wrong; it's frighteningly easy to forget the rules about bad check penalties, late feed, contractors working without written contracts, and fiduciary duties while up on the bench and after three hours of dealing with whatever drifted into court that morning. With each of those cases, I realize later that I did reach the right result, but maybe I didn't get there in the best possible way and only figured out the right way to get there after the fact. Point is, it's harder than it looks up there on the bench.

Certainly, it's easier to say, "Who's the bigger asshole here?" and go on that basis, even if you don't know the law on that particular subject. But that's not justice; if the asshole is right on the merits, the asshole should win, despite his monumental display of assholery. And the point of this exercise is to resolve my self-doubt in my own abilities. Because I have taken it as a given that you might be an asshole, but if you're right, you'll win anyway.

If being an asshole has nothing to do with being right, then statistically, the asshole is going to be right about half the time. But today, assholes had a zero percent success record in my court. Non-assholes and/or assholes who weren't quite as obnoxious as the other parties, did extremely well, or at least got a comfortable slice of baby. I heard about ten cases this morning and that seems to me to be getting into enough statistical significance that I've got to wonder about one of the three main dangers of comparing anticipated results with actual statistics.

I know I ought to be getting the law right; sometimes, though, the cases call on me to pull something out of my memory banks that hasn't been touched since law school. I ought to be strictly applying burdens of proof and finding some objective basis for evaluating the credibility of parties who simply contradict one another. Credibility is not the same thing as a good attitude and just because someone has strong emotions does not mean that they are telling me the truth. At best, it means they believe they are telling me their truths. At worst, it means they are putting on a convincing show -- which does happen sometimes. I am haunted by self-doubt, though, that something else, something very subtle, is working just below the surface of my consciousness when I sit in judgment of other peoples' disputes. Because it seems a little too neat and clean that the biggest asshole loses every time.

Or maybe I'm just reacting to all the strong emotions that get vented. One thing I can be confident about -- I tell them all to try and settle their cases because they have a 50% or better chance of walking out of my courtroom unhappy. If they don't follow that advice, that's not my fault.

So this leaves me with a few possibilities:

1. Sample Bias: A disproportionate number of small claims cases as opposed to regular disputes have at least one asshole as a party (either plaintiff or defendant).* Therefore, I'm going to see more assholes in court than I would in the general population. "You have a dispute" + "You are an asshole" = "Your case goes to court instead of settling." This charmingly suggests that being an asshole has nothing to do with being right or wrong; alas, it does nothing to explain why assholes lost nearly every time. But there does exist the possibility that this is simply an unrepresentative sample of data.


2. Evaluation Bias: I might be applying the law correctly, and judging that people who do not know the law or otherwise fail to appreciate the incorrectness of their position are doing so not because they are ignorant but rather because they are assholes. Thus, my evaluation of the parties as assholes is colored because of my evaluation that their cases lack merit. In other words, "Getting the case wrong and therefore losing" leads necessarily to "The judge thinks you're an asshole."


3. Incorrect Prediction: Perhaps my hypothesis, that assholery has nothing to do with the merits of one's case, is incorrect. There could be a causal relationship, meaning that assholes are more likely to get the law and the facts wrong, and therefore present bad cases in court which wind up losing. This is the opposite of theory #2; it would be diagrammed "You're actually an asshole" --> "You make a mistake in evaluating your position that causes you to present a loser of a case."


4. Evaluator Bias: Maybe I'm the asshole here. If so, then I'm awarding favorable results to parties whom I like and unfavorable results to parties whom I dislike. We'd diagram that as "The judge thinks you're an asshole" --> "You lose."

My self-doubt arises from possibility #4. I want to do a good job and be fair as a judge, and if #4 is true, obviously that is not happening. But at the same time, a negative correction (deliberately giving extra weight to evidence and argument offered by assholes) is very clearly not the answer as well as distasteful. I'm not entirely sure what the answer is -- and I guess I need to first determine whether the result I observed today is really an anomaly at all.

I must ponder this issue further before I take the bench again.


* A corollary to this theory is that the presence of an asshole in a dispute lowers the chances that it will resolve before trial. This corollary hypothesis strongly resonates with empirical data collected from both my law practice and my experience as a pro tem. This theory also suggests a converse -- when both parties are nice people, they find a way to work things out, and therefore a lower number of cases that I hear will involve nice people on both sides. I know of no way to test this converse theory, since it does not appear to be either falsifiable or measurable -- experience indicates that there is at least one asshole involved in pretty much every case I see either as a pro tem judge or as an attorney. Opinions as to the identity of that person on a case-to-case basis are obviously quite likely to differ.

Deficit of Ideas

• Barack Obama not only says he's against marijuana decriminalization, he dismisses the idea as unserious and unworthy of discussion. He is wrong and worse, his tone likely set the idea back years. Hope and change, people. Hope and change.
• Congressional Republican "budget proposal" suggests tax cuts to solve everything and contains no numbers. Numbers as in how much money they would spend on anything, which is kind of the point of having a budget. Remember when Republicans used to be the party you trusted with the economy? (Nope, me neither.)
• White House plans to bail out Chrysler and GM. Again. Add another $17.4 billion to the deficit to keep the dinosaurs alive. Because the Bush Administration's bridge loan has worked so well.
• The two largest recipients of TARP money, by which those troubled banks were supposed to purge themselves of distresses real estate assets, are using the money to buy the troubled assets of other institutions instead -- doubling down on the very strategy that got them in trouble in the first place. Treasury Secretary Geithner is clueless as to how to stop them from doing so.

As if you hadn't figured this out yet -- no one in Washington has a f*%&ing clue. That includes Saint Obama and whatever passes for a "leader" in GOP these days.

I'm Taking Back Some Of The Things I Said I Liked About California

There are apparently people who are considering, with straight faces and serious, self-righteous attitudes, prohibiting new vehicles sold in California from being painted black. Why? Black cars cause more smog.

No, seriously.

Stop laughing. This is real.

See, black colored cars absorbs more heat than any other color. So that means that they get hotter when parked outside than other cars. (In fact, this is true.) Therefore, the air conditioner must work that much harder, and consume that much more fuel, and generate that much more air pollution.

What a great place to be a lawyer this state is -- there is no end to the half-baked ideas coming out of Sacramento, guaranteeing no end to the work available for us to do. Truly, of the many silly ideas for laws and regulations in California I've heard over the years, this is probably going to make the top ten.

Okay, some serious alternatives to this: How about, instead, we mandate annual tune-ups for heavy commercial vehicles like 18-wheelers and cement trucks and such? Or, I don't know, build another nuclear power plant and shut down a coal-burner? Or if we structure our registration fees so that there is a financial disincentive to driving around that old junker and instead work to replace it with something newer and more ecologically-efficient?

A call to greater environmental responsibility does not require an abandonment of common sense or a risible assault on consumers. The trick to making environmental responsibility work in the long run will be to dovetail environmental concerns with consumer demand. This, however, will polarize the public against, rather than reconcile the public, to the issue of reducing carbon emissions.

If I want a black car, I should be able to get a black car, damnit. You can have my black car painted white when you pry my cold, dead fingers off its steering wheel.

Oops! ... They Lost Perspective Again

Top story this morning on memeorandum -- Republican Congressman Eric Cantor of Virginia, who holds a leadership position in the House (he's the House Minority Whip, which means he is supposed to tell other House Republicans how the party wants them to vote on bills) apparently went to a Britney Spears concert last night instead of watching President Obama's spectacularly dull press conference.

It's not like he turned down an invitation from the White House to attend a state dinner. It's not like he was supposed to be at the press conference live. He's a member of the other party; he would have been watching the conference at home on TV or in an office somewhere. No one was going to interview Congressman Cantor after the press conference unless he went out of his way to beg for press as a "Republican reaction." Which lots of other Republicans no doubt did.

Get real, people. Congressman Cantor has access to TiVo. You watch TV at your leisure, you go to events when they happen. Concerts are performed live. Television can be recorded. What's more, President Obama gives really boring press conferences. No national emergency was going on while Cantor was watching the lovely Ms. Spears flaunting her assets on stage.

Maybe what's really going on is that we're supposed to be outraged that a Republican went to see a Britney Spears concert at all. Well, query if that means Congressman Cantor has bad, or at least lowbrow, taste in music -- but if so, so what? Britney Spears is crazy as a rabid bat, but she's still easy on the eye and her songs are kind of catchy. Still, even if Cantor is a "family values" Republican who presumably would look askance at Britney Spears' antics and sexualized self-expression, the worst it says about him is that he's a mild sort of hypocrite for going to her concert and supporting that. But again, so what? He is accused in this meme of lèse majesté, not hypocrisy. And I exonerate him of the charge of which he stands accused.

And it's not like Democrats are that innocent themselves. How many George W. Bush press conferences or speeches did Democrats blow off? Seems to me that even President Obama watched then-President Bush's farewell address on TiVo after it was given instead of live, because he was having a nice dinner with his wife at the time. (H/T to Sister Toldjah for the research on that link.)

As well he should have. Bush's farewell address was a second-tier political event, as are most Presidential press conferences.

If Congressman Cantor likes Britney Spears' music better than President Obama's press conferences, that's his prerogative. We can expect Congressman Cantor to acquaint himself with the President's political and policy pitches, but doing so is hardly a 24-7 job, even for a hobby-blogger like me, much less a politician in Washington D.C. with internet access, video recorders, newspapers, a network of political apparatchiks at his command, and the fact that the White House is continually pushing a political message of one sort or another, so he can scarcely avoid what it has to say even if he wanted to.

If Cantor wants to take a night off to blow off some steam, so be it. Everyone gets to do that from time to time. He'll get the political message soon enough and can be counted on to do his job with competence despite taking in a Britney Spears concert.

The entire country does not have to be waiting with baited breath for every move the President makes and every word he utters. Barack Obama is the President, a high-ranking government official and the leader of our country. Yes, we should pay attention to what he has to say when he's doing that job. But he's not a king or a demigod.

Apparently We Can No Longer Afford Equality

The Vermont Legislature passed a bill authorizing same-sex marriage recently, by veto-proof margins in both houses. This has not stopped the Governor of that fine state, Jim Douglas, from indicating that he will veto the bill the moment it hits his desk. Why would you pick a fight with your Legislature like that, Governor?

The urgency of our state’s economic and budgetary challenges demands the full focus of every member and every committee of this Legislature. Ensuring that the federal recovery money is spent wisely, that the state budget is balanced and responsible, and that we do all we can to help our employers compete and create jobs is my top priority.

Wow. So if Vermont had been experiencing economic growth instead of a recession, Gov. Douglas would have signed the bill instead of vetoing it? Gays can only get married when times are good? This is a profoundly silly argument.

To be fair, Douglas also offers the same intellectually vapid semantic bromide offered to justify discrimination elsewhere:

Vermont’s civil union law has extended the same state rights, responsibilities and benefits of marriage to same-sex couples. I believe our civil union law serves Vermont well and I would support congressional action to extend those benefits at the federal level to states that recognize same-sex unions. But like President Obama and other leaders on both sides of the aisle, I believe that marriage should remain between a man and woman.

Ironically, this core of Gov. Douglas' pre-veto message is offered sandwiched between calls for tolerance, obviously aimed at SSM advocates who will call opposition to their position "discrimination" and "bigotry". (And rightly so.) Douglas begs for Vermonters to "tolerate my opinion and actions discharging my office even though you find them obnoxious and contrary to the overwhelming desires of the voters and their elected representatives."

I see no reason why Vermonters ought to tolerate discrimination. If I have to put up with the majority in California voting contrary to my preferences, then SSM opponents in Vermont should have to put up with the majority there voting contrary to their preferences. Gov. Douglas is acting in a distinctly countermajoritarian manner here, and I defy SSM opponents to explain to me how his veto of a bill that gathers massive political support is any different from a majority rule-minority rights perspective than a judge striking down a statute.

Well, there is a difference. The judge is acting to conform the law to the Constitution. But here, Douglas is acting to conform the law to his personal preferences.

White House Question Time

President Obama has opened up the White House website for "question time," promising to answer the most popular questions on a smorgasboard of issues during his weekly online video address. Very cool. A quick check at the White House website, however, reveals something quite amusing -- the most popular questions for every subject, from the budget, to job creation, to green jobs, to foreign relations, all concern the legalization of marijuana.

If pot smokers put half as much effort into their lives as they do into their efforts to grouse about legalization (and finding ways to evade drug tests), they'd rule the world. As it is, a lot of former pot smokers do quite well for themselves. Which doesn't change my belief that yes, the stuff should be decriminalized. I just find it funny that here, again, one encounters fanatics who can somehow relate anything to their pet issue -- and that they're trying to force the President to respond to them.

Some Videos From Cambria

First, the elephant seals. (Complete with commentary from a little girl standing next to us.)

Then, the seascape.

And finally, the wine dogs.

Cambrian Adventure

"Dude. TL, where have you been? No posts since Thursday!"

Staying at a hotel that has no internet access, that's what. Yes, there are still such places out there. I couldn't even get the phone to work right the one time I needed to use a land line (because cell phone service is spotty in that part of the world). Next question?

"TL, what on Earth were you doing at a place so far out of touch that you couldn't get internet or cell phone service?"

Having a wonderful long weekend with my wife and our friends, that's what.

We sampled about three dozen wineries around El Paso De Robles. We drank good wine, plenty of it. And bought a lot of it. Our wine racks at home are now full; five dozen bottles of hand-selected or gifted wines. That's never a bad thing.

I took The Wife to redwood groves around Big Sur. She'd never seen live redwoods before. A drive up the coast from our hotel took us onto the narrow, twisty part of Pacific Coast Highway where it clings to the cliffs on the coastal range; there, we found the southernmost redwood groves in the state by clear, beautiful waterfalls. Salmon Creek Falls, not pictured here, were going at a spectacular rate, but I sort of preferred this less-frequented grove with the stream falling down off the rocks into the mossy quiet of the forest.

We watched sea otters diving for their breakfasts off of the rocky beaches near Cambria. I've got photos of otters out hunting, but they just look like little dots in the sea. There were, however, hundreds of otters out there. You'll have to trust me on that.

We partied with winemakers. Our friends are very close with one of the winery families, and we got to participate in their spring celebration and enjoy pizza and chicken and sample their entire library of wines. Along the way we got a glimpse into what the winemaker's life is really like -- for much of the year, it's reasonably relaxing once they've found a wholesale customer for their product; they just work the tasting room themselves and sell what they can on their own and the rest goes to their customer. They can give hayrides and relax and have a good time with their friends and family. For a couple weeks out of the year, around harvest time, they work like hell -- one guy described going six days straight without sleep, and eventually when the tractor broke down he and his crew were passed out from exhaustion by the time the repairman showed up and said "Add diesel."

We got to breathe fresh clean ocean air, and were overwhelmed by the beauty of emerald mountains and sapphire seas. Of the many really beautiful places in California, this just about takes the cake. Harmony, the little village between Cambria and Morro Bay, seems to always be green and the beef from there tastes especially good -- maybe because the cows have such steep hills to climb while they're grazing. I've not been to Ireland but I have to imagine that's kind of what it looks like. If it weren't for the lack of cell phone and internet service, I'd have been hard pressed to find a good reason to come home. Oh, well, we had to take care of the animals. But man, that is one heartbreakingly beautiful part of California.

We shopped for antiques and gifts. Cambria is a charming little tourist town, filled with bakeries, antique shops, tchotchke vendors, and Italian restaurants. I finally got my beret.

And we both got enough sleep. The hotel, as mentioned before, lacked the modern amenity of free wireless internet access. Whatever dwarf built the shower seemed to think that a nozzle four and a half feet off the ground was high enough for anyone. And the continental breakfast left something to be desired. But during warmer times, I'd have availed myself of the par-3 golf course, the pool, and the croquet court; and the price was quite reasonable. I would stay there again; after all, we didn't really do much in the hotel but sleep there.

I've got to say that I enjoy the Paso Robles wine region better than the Santa Ynez, Napa, or Sonoma regions. There are still wineries that do complimentary tastings. Many wineries include food in their tastings -- not just some palate-clearing crackers, but real food like chipotle burgers, carnitas, and substantial chocolate treats. There are more wineries, in a smaller area, and the ratio of superb wines available for sampling is high. It is wine country the way it was meant to be, the way it used to be in a lot of other places.

On the way back, we also stopped to visit Fort Tejon. I've driven through the Grapevine a hundred times and seen the sign for a historical monument but never been. So this time, we pulled off the road and stopped. There are several buildings from the original fort still there and some very interesting exhibits. This is where the Army experimented with using camels as pack animals in the 1850's, and it was the epicenter of Edward F. Beale's blatant abuse of military and Federal civil power to create a massive real estate empire for himself at the southern end of California's central valley, which today survives as a private enterprise known as Tejon Ranch Corporation and is now the largest private landholder in the state.

When we were there, we saw a bunch of kids wearing period costumes doing things like making nails in the blacksmiths' shop, cutting lumber with old-fashioned saws, churning butter and cooking food, and firing adobe bricks. They were on an overnight field trip and it looked like about the coolest field trip I've ever heard of kids doing. Good for them and their teachers (some of whom were staying the night with them for the trip; they were sleeping in the old barracks building) that they got this really interesting experience.

I found, upon my return to mundane life, five hundred entries on my blog reader which I've simply marked as "read" despite not reading them, a desk full of fires to put out at the office, and plumbing problems at home. And a Wife determined to eliminate every last shred of carpet in our house, uncaring if that means leaving bare concrete subfloors to walk on, waiting for me at home. Well, that's a crash back to real life for you, but that's what you get sometimes.

"TL, can we come along next time?"

No. Well, two of you can, and you know who you are. See you in Los Olivos next month for the barbeque, friends.

No Consensus on Michael Steele

There was an almost even split on the question of whether Michael Steele is good for the GOP in the most recent poll -- "yes," "no," and "too soon to tell" got about equal numbers of votes.

For my part, I think he could be a really good force for reforming the party and he seems to have some instincts in that direction. Too bad he's not proving to have enough spine to actually get into that fight.

Rookie Mistakes

I've got no TV. I didn't watch the President on the Tonight Show.

I'm not entirely sure if it's beneath the dignity of the office to go on the show. But it seems President Obama flubbed a joke and wound up tastelessly referencing the Special Olympics.

And he (or rather his staff) sent a gift package of DVDs to UK Prime Minister Gordon Brown. A nice enough gift between two heads of state, and apparently PM Brown is something of a film buff, so that's especially good. Only someone forgot that DVD players made for the European market use a different encrypting protocol than those made for the North American market. So Brown can't watch any of his new DVDs.

While doing speeches on St. Patrick's Day with the Prime Minister of Ireland, the teleprompters got mis-programmed and the PM wound up delivering a part of President Obama's speech, and then the President got some of the PM's speech thanking him(self) for the nice remarks. PM Cowen spotted the problem after a few lines, and pointed it out, but Obama delivered part of Cowen's remarks afterwards anyway. Like I tell my students on the Mock Trial team, it's not enough to be prepared -- you have to pay attention to what's going on around you so you can react appropriately. Just coasting on your prepared remarks can and often will get you in trouble.

And the First Lady has decided to plant a vegetable garden in the White House lawn. "Good for her!" was my first reaction -- but then there's the fact that they're going to grow arugula, playing into the political card of elitism that, although I think it's pretty silly, seems to have some legs to it. Well, I like the vegetable garden idea and I like arugula, too, so to me this isn't a big deal. But someone might have suggested to the First Lady to avoid arugula in particular. There's plenty of other leafy greens they could be growing.

Political missteps. One suspects that as the Obamas become more comfortable with how the world views their statements and behavior, they will sidestep these sorts of land mines. I guess this sort of thing is inevitable when we're breaking in a new President. Learn from your mistakes, Mr. President -- and more importantly, White House staff! Your job is to make your boss look good, and these sorts of mistakes don't help that.

Attainder!

First, some Constitutional vocabulary.

A "bill of attainder" is a law that punishes specific individuals without benefit of trial.

A "taking" is when the government takes something from you without "due process of law," which usually means either giving you a hearing or an opportunity to consent.

An "ex post facto" law is one which punishes someone for conduct which, at the time it was committed, was not illegal -- it criminalizes something retroactively.

The Constitution of the United States prohibits bills of attainder and ex post facto laws.

Taxes are not considered "takings" because by electing representatives to Congress who act on our behalf and impose taxes, citizens are deemed to have consented to the taxes.

Second, the news. Congress has imposed a 90% tax on all bonuses over $250,000 paid to individuals employed by companies receiving federal bailout money. It could not be more obvious that the tax is aimed specifically at AIG executives who are, so far as I know, citizens of the United States of America.

Those executives have done nothing wrong. They would be willing to pay regular income tax on this income. But functionally all of their money is being taken from them, without benefit of a trial or a hearing, under the guise of a tax.

Add my voice to the growing chorus that thinks this is a bill of attainder and not a constitutional taxation. It punishes these people for accepting compensation for which they bargained, which was part of their employment contracts, and which was authorized and not altered by the laws bailing out their employers.

The new tax law is a crass, craven, and unconstitutional taking of something that belongs to private people. It is an effort by Congress to provide political cover for its own members, and members of the incumbent Administration, who are complicit in authorizing those bonuses which have proven so politically unpopular (despite their exceedingly small size as compared to the AIG bailout).

Yes, yes, I understand perfectly well that the bonuses appear to be the government directly rewarding incompetent management by these same executives, people whose past mistakes raise serious questions about whether they get to keep their jobs. But the government, now the majority stockholder of the company, couldn't find the stones to fire and replace them. So they remain running the show at AIG. And the political priority is not reforming the way AIG does business by changing the management team, but rather to mollify a public outraged by the way 0.1% of their money is being spent.

The real blame for the bonuses rests not with the executives at AIG. It rests with the hurried, slapdash efforts of Congress and two White House administrations to literally throw money at a problem in the financial services industry. It is an example of why the government ought not to be in the business of running a massive insurance company -- it's not very good at this sort of thing.

Two Trillion Dollar Deficit

That's right. You'll see it on the news tomorrow. But you read it here first.

Tomorrow, the Congressional Budget Office will forecast that the 2009-2010 federal budget will run at a staggering, unbelievable, mind-blowing, and scarcely comprehensible two trillion dollar deficit.

My calculator cannot go that high. I get "2E+12" instead. Carl Sagan never talked about numbers that big.

The debt that Obama inherited from Bush was about ten trillion dollars. It took the United States 234 years (starting with the first appropriations for General George Washington's army by the Continental Congress in 1775) to build up a debt of $10,000,000,000,000. President Obama will preside over a 20% increase in that debt in one year.

My biggest reservation about Barack Obama as President was that I did not think the country would be able to afford him. And that concern, I am sorry to report, is becoming justified by events as they have occurred. Listen to the NPR report I linked to above -- the White House is not planning on slowing down its ambitious plans to overhaul health care, education, and energy a bit.

I Think My Idea Is Better

Apparently, there are plans in the works to send U.S. military troops into northern Mexico to help fight the ascendant narcotics organizations there. It seems to be the case that these large criminal enterprises are, in some regions of northern Mexican states, more powerful than the legitimate government. And they are at war with one another (and against the legitimate government), creating a very violent, dangerous, and unstable state of affairs.

I have a suggestion that would not require putting our troops in harm's way to solve what is really a problem for the Mexican government to solve, and which would not involve opening up a third front of significant activity for our military. Here it is: decriminalize drugs. I'm sure you've heard the arguments in favor of this before.

• People are going to do the drugs no matter what; criminalizing the possession, sale, or use of them does nothing to deter the prohibited acts.
• If drugs are really dangerous, then what addicts need is medical help, not a visit to the prisons, and what non-addicts need is education about why the drugs are dangerous, not an ineffective threat of prosecution. If drugs are not really dangerous, then there is no reason to criminalize them.
• Criminalizing drugs adds to the romance and fun of taking them, which encourages people to use them. No subculture exists concerning people who drink a lot of NyQuil.
• Importing decriminalized drugs into the United States is a good deal cheaper and easier that smuggling contraband, which will substantially lower the value of the stuff. The criminals and terrorists who profit from feeding our addictions will have to find a new source of funding for their other activities.
• The harm resulting to people from consuming illegal drugs is really no different than the harm they suffer from consuming legal drugs, like alcohol or prescription medications.
  
• Decriminalizing drugs will substantially reduce the demand for law enforcement and incarceration facilities, freeing up those resources to combat violent crimes. Further, dissociating the drug trade from criminal activity will render the drug trade itself substantially less violent.
• It's the right thing to do in a free society to let adults decide for themselves what substances to put in their bodies.
• We can tax the sale of legalized drugs. Granted, I'm only proposing decriminalization here, which is different than legalization, but if we do take it to the next step, drugs can serve as a source of revenue, rather than something that creates a drain on government revenues. Money in is better than money out. It seems to work out acceptably well in the Netherlands and Switzerland.
  

But of course we won't do that because that would be seen as encouraging drug use. Instead, American soldiers will wind up fighting drug lords in the deserts of Sinaloa and Sonora, some of them will die, and nothing will have been accomplished as a result. If we cut off these drugs lords' funding at their source by devaluing their product, they will starve to death (or, more likely, seek other avenues of economic opportunity).

And this is one decriminalization advocate who does not use the stuff. I tried pot once, a long time ago, and didn't like it. It gave me a blistering headache and the munchies, and no high at all. Maybe I got stinkweed instead of good stuff, but it was enough to convince me that smoking weed wasn't for me. Consequently, I fail to understand what all the fuss is about -- but given that people do want to smoke the stuff, it makes more sense to me for the government to take a hands-off approach than what we're doing now.

If we did that, then maybe our young men and women wouldn' t have to die at the hands of a drug lord in some Mexican wasteland.

You're Doing A Great Job, Timmy

Or so says President Obama. I seem to recall President Bush saying similar things about his FEMA director immediately after Katrina, his Secretary of Defense and other Iraq policy architects, and his Attorneys General.

But the thing is, the shitstorm is hitting Tim Geithner not for the basic idea of effectively nationalizing AIG. Instead, it's for what is possibly the most defensible use of the company's money imaginable -- fulfilling its contractual obligations to pay its employees for their labor. Conservatives ought to be happy that the company is fulfilling its contracts. Liberals ought to be happy that the company is honoring its obligation to pay people for their labor.

Instead, because the company chose to structure its compensation package in the form of "bonuses" rather than simple salaries, there is populist rage on both sides of the aisle. People, it's time to step back and put this in perspective. The issue is not whether bailout money is being used to pay for regular operations of the business. The issue is whether we should bail out AIG at all, or put it into receivership instead. There are arguments to be made in either direction.

But having decided to bail the company out rather than restructure it, that means the public has to assume responsibility for the company's operations. That includes paying people because, as I wrote before, if these people aren't paid what they were promised, they'll sue for the money, and win, which will cost AIG (and by extension the taxpayers) even more money than this because of the lawyers and court costs that will also need to be paid for. So get over it already and let's start talking about what's important here.

Twitter Jurors

There's a rule that jurors are only supposed to consider the evidence presented to them at a trial, and not do independent research into the subject matter of a case they are asked to decide.

This rule is there for the excellent reason that not all evidence ought to be considered by a jury. For instance, in an auto accident case, it might be of interest to a juror if the defendant has insurance. And if the juror finds out the defendant has insurance, then it makes it easier for the juror to decide in favor of the plaintiff, because the defendant herself won't be paying the money, her insurance company will. Why do we care about that? Because whether the defendant has insurance has nothing to do with whether the plaintiff deserves the money or not.

Or, in a criminal case, the police might have conducted an illegal search. Certain evidence might have been obtained as a result of that illegal search -- which the defense would move to suppress. The jury ought not to hear about that evidence, for the excellent reason that letting the police violate this defendant's civil rights and use the evidence they obtain will only encourage the police to violate the civil rights of someone who is innocent later on.

But a juror on that trial could pretty easily go home and log on the internet and start doing some research. The result would be the juror would then know the information and what's more, having gone out and researched it himself and noting that it was not offered in court, would infer that it is particularly important information, and use it to decide the case. Doing so is grounds for a mistrial, which as described in this Gray Lady article, is making it difficult for prosecutors to convict bad guys.

Certainly the point of a trial is to get at the truth. But it's also to achieve justice. Evidence obtained through unjust or unconstitutional means is at best highly questionable from the perspective of advancing the interests of justice. Which is why there is some tension out there about the exclusionary rule, and why there will be a similar sort of tension about a juror looking up information on wikipedia and finding things that seem to contradict what an expert witness testified to. Never mind that wikipedia can be edited by anyone, anytime, and the editor might well have been the opposing party or its attorney, acting dishonestly to deceive the juror. People read stuff on wikipedia and think it's gospel truth.

It's bad enough that jurors decide cases not on their merits but rather on the perceived personalities of the parties. But when they then add their viewings of the plaintiff's and defendant's Facebook pages to that already-marginal decision matrix, and you're in a world of chaos. When, oh when, will people learn that they should write their Facebook entries as though every word would be used against them later by their enemies in a court? This is one of the reasons I don't have a Facebook page, and why I'm unlikely to ever have one (and if I ever do, it will be very dull).

Google yourself every once in a while, too, to see what a stranger or an enemy can learn about you. I Google every defendant I sue and every plaintiff who sues my clients. I don't often find much, but when I do, it's a gold mine. I expect that my adversaries are doing the same thing.

I don't know what the answer is. We can't sequester every jury. We can't, and shouldn't, make a juror give up all aspects of their regular life while they're serving. Part of the solution suggested by Doug Mataconis is citing jurors doing this sort of thing for contempt. I think another part of it is in the hands of technologically-savvy attorneys -- they need to find this sort of information first, anticipate what jurors who break this rule might do, and structure their examinations to pre-emptively deal with this.

Feedjit Proves Atheism's Contagion

This search recently came in and I viewed it on the traffic feed:

Foggia, Puglia arrived from google.it on "Not A Potted Plant: June 2007" by searching for If Jesus had been killed twenty years ago, Catholic school children would be wearing little electric chairs around their necks instead of crosses. traduzione.

"Traduzione," of course, is italian for "translation." So someone in Foggia wanted to know what that particular phrase meant.

Kiss Me, I'm Half Norwegian On My Father's Side

Huh. Turns out that yesterday was St. Patrick's Day. I literally did not notice. Wasn't an issue at all. Now, if people want to wear green and drink a lot of booze that's cool, but the point, I thought, was to celebrate Irish people and Irish culture. A fine people, those Irish. But if you're not Irish, it can get a little bit annoying to be continually exposed to people pining for the green fields of Kilkenny or the great food at so-and-so's pub in County Cork or insisting that Guinness tastes better when it travels less, so you've really got to go drink it in Dublin. And it gets particularly more annoying when the person telling you this has never traveled to Ireland in the fire place, so you can't be sure just how much of what you're being told is a load of blarney.

As it turns out, I am not Irish. I am, however, almost eligible to join this fine legal organization. But you don't see a whole lot of Norwegians trying to impose their food and sartorial choices on the rest of society like those damn Irish. Now, that could be because homespun gray isn't as interesting as kelly green as a color choice for clothing, and because lutefisk and aquavit are just plain nasty. I would much rather have corned beef and cabbage and a shot of Irish whiskey. So if it's a question of old-world cultures to celebrate, I suppose you could do worse than the Irish.

Well, I'm part Italian, too, and I don't suppose I could find any examples of Italians trying to impose their culture on the rest of the world, either. Or of Americans getting all misty-eyed and romantic celebrating the traditions of a country their ancestors came from but they've never been to by doing things like re-screening The Godfather and listening to Frank Sinatra music while eating a big plate of noodles and gravy. So this sort of silliness is hardly limited to Irish-Americans; they've just managed to market St. Patrick's Day a lot better than Italian-Americans have managed to market San Gennaro.

So "Erin go braless!" or whatever that phrase is, belatedly, to all my Irish-American friends.

If You Want To Never Feel Like Having Sex Ever Again...

...then listen to Bill O'Reilly read the sex scenes from his already-creepy book out loud.

[author whimpers, shudders]

Bonus Coverage

Um, someone explain to me why everyone is so outraged over bonuses being paid to AIG executives? It's not like this was some kind of a secret that this is how they were going to be paid, and that they would be paid handsomely to boot. This has been a standard practice in the insurance industry for a long time, both for salespeople as well as those in other segments of the industry -- in particular, in asset management, and in this day and age of blurry lines between industries, that subspecialty of the insurance industry that sells things like annuities, money markets, stocks, bonds, and a whole host of other things you used to have to hire a stockbroker for.

After all, asset management is where the money is. In between collecting the premiums, paying its people, and paying out claims, the insurance company is sitting on top of a lot of money. It doesn't put that money in a passbook savings account -- it uses it, out on the market. It buys stocks, bonds, and commodities futures. A big insurance company has the same kind of market clout on Wall Street as a small mutual fund, and behaves in a fashion similar to a mutual fund.

You might say that this segment of an insurance company's operation seems to have little to nothing to do with the business of insurance, and you'd be right. But the people who buy and sell stuff on the market generate much more revenue for the insurance company than the salespeople do -- and their compensation packages reflect this. No one so much as squeaked about this back when profits were fat and the solution to high premiums was to buy stock in the company.

AIG got into financial trouble not by selling personal lines like auto, life, and homeowners' policies. Those sorts of policies were and continue to be perfectly ordinary and predictable sorts of things as part of their regular operations. Any insurance company can predict with an astonishingly high degree of accuracy how many of its insured policyholders are going to die over the course of any given twelve-month period, and therefore how much money it will have to pay out in life insurance benefits. (This is in the aggregate, of course; if you ask about an individual policyholder, they won't even try to make a prediction.) So in terms of personal lines, underwriting, and claims, the various AIG companies (there are over 200 corporations operating under the AIG umbrella) are perfectly healthy.

The issue is that the managed assets are also the working capital of the company, from which claims and operations are paid out while they are being managed. Normally, this is simply a requirement that a certain portion of the insurer's assets remain liquid, or at least readily-liquidatable, for use in keeping the doors open, and being able to pay out claims. But when the market takes a sudden dive, well, things start to look pretty grim pretty fast as the working capital gets reduced to a fraction of its former value. And it's those same asset managers, the ones who allegedly mismanaged AIG's assets and resulted in the entire corporate structure becoming endangered, who are getting these bonuses.

Here's a few things for Chuck Grassley to consider, then, before he encourages these people to step out of skyscraper windows if they take their bonuses. These people had contracts. So we're looking at $165 million in bonuses being paid to people who entered into contracts back when they could have been working for hedge funds and in the boom-boom years, earned ten to twenty times as much as they agreed to take from AIG -- in exchange for the security of certainty of payment. AIG has to follow through on those promises.

Now, perhaps the contracts were not well-considered, given that they were "retention" contracts for people who still leave the company at what a snapshot picture suggests is something like 11% a year, and they seem to be largely fungible. But regardless, they were promised this money and if they don't get it, they'll sue and win. So it's better to pay them and be done with it.

Reason enough to pay the bonuses, although perhaps there may be good reasons to change the way they are compensated in the future. And this is not Chris Dodd's fault. Or Tim Geithner's. It's how things were done and we have to deal with cleaning that mess up. That's not to say that the government shouldn't demand management shake-ups. The outrage is not that AIG is honoring its contracts, or even that legislators or Treasury Department officials didn't try harder to get those contracts re-written, or that any particular legislator or regulator made any particular proposal.

And we're talking about less than .1% of the total AIG bailout here. AIG did manage to make over $750 million in business activities like luxurious conventions and sales incentives go away. But the government, first at President Bush's urging and then again at President Obama's urging, has now sunk over $180 billion into AIG to keep it afloat -- thereby acquiring an 80% ownership stake in the umbrella organization. And people are choosing to get pissed off over $165 million?

The issue should be that the government doesn't know dick about running an insurance company and has now taken an 80% interest in the world's largest insurer. So, not knowing dick about running this company, they kept on board all of the same yahoos who got the company in trouble in the first place. Doing so suggests that these people weren't really at fault for the company's distress.

If that is the case, paying them bonuses ought to be non-controversial. This would be credible and reasonable if we want to say that the collapse of the financial markets last year was something unpredictable, something that the best and brightest could not have seen coming, then we have no reason to think these people are incompetent and undeserving of executive-level compensation. Pay them, let them get the company back up on its feet enough to pay the government back itsmoney (with a reasonable rate of return for its use).

But if we're going to say that the management and/or asset managers of AIG did make significant mistakes and bear some measure of blame for failing to prevent the collapse fo the market as a whole and AIG as a market participant in particular, fine. Maybe they should have seen it coming. Then pay off their contracts and get them out the door. If they did do something wrong, then they can be relied upon to repeat whatever mistakes they made again, especially given that now they've learned that the government will bail them out if they do screw up.

The outrage is that this isn't happening. An 80% interest is a controlling one under any set of laws anywhere. The government has bought so much AIG stock that it can, almost at will, convene stockholder meetings and fire the board of directors of AIG en masse and replace them with hand-picked pros from Dover. It ought not to be too hard to get new people in who can buy and sell stocks, structure annuities, and predict with reasonable accuracy how much money pork bellies are going to sell for in September, if the incumbent set of managers are incapable of that.

The fact of the matter is, the government doesn't know dick about running an insurance company, which is why I objected to the form of the AIG bailout in the first place. No one saw the crash coming, with only a few exceptions, and we've no reason to think that AIG's management team are any more incompetent than any reasonable replacement slate of executives.

Now, the President, the Secretary of the Treasury, and Senator Dodd do look unseemly rushing to point fingers of blame at AIG for distributing bonuses because back when the bailout was structured, they didn't do or say a thing about them -- so it sure looks like their outrage today is a response to political pressure rather than something they actually care about. But while I certainly take note of their hypocrisy on this issue, it's really kind of beside the point.

The point is the government is now doing something it should never have started doing in the first place, and no one should be surprised that it's doing it badly.

When The Desert Blooms

For about a week every year, California's high desert blooms. This is usually about a month after the rains stop. The grass is green and growing all throughout the desert. Poppies start to emerge. The mountains have a golden-green sheen to them and the yucca plants flower. The weather is short-sleeve pleasant during the day and homeowners contemplate when they'll need to start mowing their lawns.

This is that week. We don't have anything like the glorious crop of poppies we had last year, but when the desert is green it's still quite pretty up here. I can believe it when we come across old documents from when this area was first settled which describe open flowing streams and ponds that lasted all year long, and realize that it made sense back in the day for the first people here to make their living by farming despite the absence of aqueduct.

Next week, of course, all the grass will be dead again, and the blooming yucca trees will be replaced by dead tumbleweeds. But I'm enjoying it all right now.

Taxing Zima

In a bid to increase revenues, the State Board of Equalization took a look at ultra-sweet "malt liquor beverages" like Mike's Hard Lemonade, Smirnoff Ice, and any remaining bottles of the clear, oddly-sweet-yet-undelicious alcholoic soda known amongst my law school buddies as "That Zima Crap." The SBE determined to reclassify these alco-sodas as "liquors" instead of "beer." This would have resulted in, they hoped, an additional $38 million in revenues from the increased taxes resulting from the reclassification as college freshmen, looking to use these things as liquid panty-removers, presumably were buying them by the pallet.

As you might have guessed by now, it didn't work out that way. So far, about $9,000 in additional revenues have been generated. The manufacturers say that they've begun to derive more of the alcohol content from yeast fermentation less of it from distilling grain alcohol (otherwise known as "adding vodka to soda pop"). The stuff looks and tastes exactly like it did before, but we're told they're making it in a new way, and since they all add so much high fructose corn syrup to the drink in the first place, it seems that not even spectral analysis of the product will reveal any difference from the old ingredient list of "carbonated water, high fructose corn syrup, grain spirits, artificial flavors, FD&C Yellow #4 with BHT added as a preservative."

As the Fish Wrapper dryly notes, "Some officials and activists suspect fraud." Really? Well, good luck with that, fellas.

See, what's going on is the manufacturers have never, ever disclosed to anyone what the recipes for these bottled girl-drinks really are. Nor do they have to, and we should expect them to resist doing so because the Uniform Trade Secrets Act provides them with a powerful legal incentive to resist public disclosure of how they make these instruments of adolescent seduction. Now, they do have to provide the recipes to a Federal agency, but the Federal agency is bound by law to hold those formulae secret. Because ethyl alcohol is ethyl alcohol regardless of how it's made, the State Board of Equalization is kind of ass-out unless they can find other evidence that the product on the shelves isn't alcoholic from fermenting a liquid grain mash with yeast as opposed to distilling the grain mash into vodka.

So we'll just pretty much never know. Well, so much for that "easy money." Relying on smoke and mirrors just turns an otherwise-honest merchant into a liar -- and generates lots of work for lawyers. Or, if you really were trying to increase revenues, you might do it the old-fashioned way: go to the Legislature and get them to raise the tax on beer. That would probably have been easier, and certainly it would have been more lucrative.


Hat Tip to Outside the Beltway, which led to Kevin Drum's column on Mother Jones, and then, of all places, back to the Fish Wrapper.