The Way It Ought To Be

About ten years ago, my then-law partner and I tried a personal injury case in Sacramento.  It was a difficult case to prepare because the plaintiff had treated with a great many doctors and the nature of his medical treatment was very complex, involving two separate injuries, so we had to piece out what damage had been caused by the first trauma and what had been caused by the second.  Complicating matters was the fact that the plaintiff treated with doctors in the Sacramento area, around his hometown in Lake Tahoe, and in the Reno-Carson City area.  One of the doctors had moved his practice to Santa Rosa.  All of them had to be deposed.

This was, of course, very expensive and time-consuming, especially for lawyers based in the Los Angeles area.  The plaintiff's attorney was also very busy and he enjoyed a thriving practice with a lot of clients, but he did not have a lot of staff support to help him out in his practice.  Consequently, we shouldered a lot of the administrative and logistical burden of getting these depositions lined up, and the plaintiff's attorney spent a lot of time travelling around playing catch-up with us.  Coordinating things was something of a challenge.

As is sometimes the case, the parties had dramatically different views of what the case was worth.  We were looking at a result in the mid-five figures; the plaintiff was looking at low sevens.  We came up quite a bit in settlement talks and the plaintiff came down quite a bit, too, but we never quite settled it.  It took three weeks to try the case to a jury.  The result came in numerically closer to where we were coming from as the defendants, and an order of magnitude less than the plaintiff wanted, but still an order of magnitude more than we wanted.

Since then, I've referred some cases in Northern California to this attorney.  He was always a strong advocate for his client, smart, courteous and professional to us, and took care to show respect for a couple of young guys going out on their own.  Today, my former law partner sent me an e-mail from our former adversary indicating that he had fallen on unfortunate circumstances and had to retire for a medical reason.  The odds are not wonderful for him.

I corresponded with him directly and expressed my regrets.  I'd have been willing to help him out in any way he needed to help him wind his practice down so he can concentrate on his personal issues, and told him that to this day I considered his handling of the case we litigated together to be a model of professional behavior to which I aspired.  I meant it too.  He was gracious and warm in his response.  Of course he took care of all his professional obligations already and doesn't need assistance from me in that regard or any other -- but that's not the point of making such an offer.

The point of the story is, every once in a while there comes along a reminder that law is not just a job.  It's a profession.  It's a way of life.  This fellow never once put his sword or shield down when we were litigating, and never once wanted me to, either.  And when the time for litigating was done, he was as friendly and courteous and generally pleasant to be around as anyone could possibly have asked for.  It made litigating the case pleasant and it created a mutual admiration society that I was pleased to see lasts to this day.

Every once in a while, there comes along a reminder that practicing law can be a really good way to not only earn a living, but to live a life.  I think that's as good a note as I could have hoped for to end another year in my practice.

Income Disparity

The proposition that "the rich are getting richer, the poor getting poorer, and the middle class is getting screwed" is one that has a seductive intellectual appeal to me. If it is true, it is surely the result of the socioeconomic elite of society constructing various mechanisms of income redistribution to favor themselves -- the real Golden Rule.  This notion appeals to my inner Cynic and makes him feel smug and correct and pleased with himself.  It's when I feel the tug of that kind of seduction that I put up my guard about falling into unwarranted assumptions, a trap about which I entertain no illusions of invulnerability.

I don't question that there is a wide gap between rich and poor. That's obvious. What I'm wondering is whether there really is a widening gap between rich and poor.

I keep on hearing reports about "the widening gap between rich and poor" and I've heard such reports for more than my entire adult life. If the doomsayers about this had been right the first time I'd heard it, by now I'd either be a multi-millionaire living in a gated estate with armed guards on patrol while I lolled about in Pablo Escobar-like luxury, or a homeless welfare recipient wearing fingerless gloves sleeping in a refrigerator box. As it turned out, I'm pretty much in the same sort of middle-class economic situation that my parents were in when they were at my age. I imagine that's true for most of you Readers, too, with varying degrees of comfort encompassed within that broad and admittedly ambiguous phrase "middle-class."

And in my law practice, I've encountered some very rich people and some very poor people. But mostly, I encounter people both professionally and socially whose economic situations are better than missing meals for lack of money but not comfortable enough to take spur-of-the-moment intercontinental vacations. Oh sure, maybe we could come up with other and more precise ways of defining what "middle class" means than that but exactly what multiple of the poverty line or what precise indicator of wealth we might pick isn't really what I'm talking about here.

I have no real way of gauging whether there are more of the very rich and more of the very poor than there ever were. Even a casual look at history informs us that there have always been very rich people and very poor people, and that there have always been lots more poor people than rich people, and that individual members of the middle class have always lived in a state of anxiety about lacking the generational wealth of the rich and fear of sliding into the grinding poverty of the underclass. "Thus it ever was," and there is no indication other than "thus it shall always be."

Now, I realize that both the very rich and the very poor have a tendency to be socially invisible and segregated from the middle-class society with which I am familiar. And the very nature of social class is that one rarely encounters people outside of one's own stratum. So this may be the sort of phenomenon that eludes casual observation and only reveals itself to careful study.

A survey of studies leaves me thinking that methodology and definition are hardly uniform, in part because any attempt to split all of society into three classifications necessarily involves making some arbitrary decisions about what "wealth" and "poverty" actually mean; they rarely take into account regional disparities in purchasing power, income, and accumulation of capital; do not consider that the idle rich represent huge accumulations of capital and thus material comfort even though "income" is low; and are all colored by the partisan politics of the day.  For at least two generations, whatever party is not in power in the White House has claimed that the party that is in the White House is trying to "squeeze the middle class" and if that's the case, then middle-class taxpayers have been under the government squeeze since Harry Truman said the buck stopped at his desk. And in fact, a study of tax patterns reveals that a typical middle-class taxpayer has been functionally the same since the end of the Great Depression.

Even if income disparity is actually increasing, query as to its real-world consequence. The middle class (broadly-defined) in the USA is an overwhelmingly large segment of our society. If a few people get squeezed in to the margins of the "rich" and a few more get squeezed into the margins of the "poor" every year, well, that really sucks for you if you're on the downward slope.  But considering society as a whole -- so what? There is upward and downward economic mobility in this country, perhaps less than we might idealistically think, but it is there and it doesn't seem to affect things very much one way or the other when you look at the big picture.

So in comparing the appealing proposition to my actual experience, I have to come down on the side of skepticism as to increasing income disparity. And I'm not sure that it's as big an issue as those who point to it claim it really is, at least when you look at the macro-economic picture of the country as a whole.  Since I realize there may be more to this than I can observe myself, this is a tentative skepticism, which can be convinced either way. But for now, I'm going to classify myself as an income disparity skeptic.

Sixteen Guesses For 2010

Renewing my tradition from last year, I boldly offer the following predictions for the next year.  I make no claim to psychic powers, clairvoyance, astral projection, divine or demonic information, or access to time machines.  These are SWAGs and nothing but.  As you can see from this morning's evaluation, my completion percentage is just over 50% so that's about what they're worth.

1. Jon Huntsman will resign as ambassador to China and begin to lay the groundwork for a Presidential bid in 2012.
2. Foolishly, Democrats will campaign in 2010 against George W. Bush.  This will fail and result in gains by Republicans, but more in the House than the Senate.  Congressional Republicans will realize a net gain of only two or three seats in the Senate, leaving the Democrats still firmly in control of that body and reviving talks of abolishing the filibuster.  But, net gains in the House of Representatives will be such that the Democrats' majority in the lower chamber will be roughly ten seats and Republicans will optimistically talk of re-taking the House in 2012.
3. A reconciled health care "reform" bill will not be passed out of Congress until March or maybe even early April.  Its effect will be to very moderately increase taxes on middle-class Americans, only negligibly affect their actual health care options, and substantially inflate both the governmental deficit and the profits of enterprise-level health care providers.
4. The net inflation rate of the United States for CY 2010 will be in excess of 4%.
5. President Obama will again increase the number of American troops deployed to Afghanistan.
6. Canada's government will collapse, for real this time, and new elections will result in a badly-fragmented Federal Parliament with the BQ playing the role of powerbroker.  However, the BQ will not be able to leverage this into actual autonomy.
7. An El Niño condition will manifest in the Pacific Ocean, relieving California's drought.
8. Despite the economic help of favorable (that is, "wet") weather, California will increase sales taxes to 10.5% or higher, resulting in the highest sales tax in the nation.  Despite this, functionally all incumbents in the Legislature eligible for re-election will be re-elected in November and the Democrat nominee (who right now looks like Jerry Brown) will win the Governorship.
9. A national newspaper of significant stature, I'm thinking the Boston Globe, will be liquidated.
10. 2010 will be a good year for the stock market.  The S&P 500 will realize a net gain of over 20% in CY 2010.  As of today, the S&P 500 is 1,124.57, so that means that to win this prediction, the S&P will need to be at least 1,349.48 on December 31, 2010.
11. Iron Man 2 will be the biggest box office hit of the summer.  But another much-anticipated sequel in the same general genre, Tron 2, will disappoint and lose money.  Wall Street 2 and Sex And The City 2 will both prove to be so unwatchably bad that we all would have been better off had they not been made at all.  Remakes of Clash of the Titans and Red Dawn will both prove to be convincingly entertaining.
12. In First Amendment news, the Supreme Court will decide for the government, 5-4, in the case of Salazar v. Buono, ruling that a large cross, originally built privately as a war memorial, later transferred to Federal land, then the subject of an Establishment Clause lawsuit, and then the subject of a law transferring the cross to the VFW.  The Court's decision will consider the longevity of the monument as a significant factor mitigating against the finding of an Establishment.  (I consider this a pessimistic prediction, for the record).  Justice Sonia Sotomayor will prove to be the decisive vote in favor of the government.
13. In Second Amendment news, the Supreme Court will decide, by at least 7 votes, that the individual right to own weapons articulated in District of Columbia v. Heller will be "incorporated" into the Fourteenth Amendment and thus apply to the several states as well as to the national government.  However, the Court will unanimously decline the opportunity to expand the "privileges and immunities" clause embodied in the arguments.  Watch for the decision in McDonald v. City of Chicago to be one of the last decisions announced in June.
14. Brett Favre will play his final year for the Minnesota Vikings, and then retire.  For real this time because he'll be 41 years old and in at least moderate pain almost all of the time.
15. Iran will successfully detonate a nuclear device.  This will cause much wringing of hands and gnashing of teeth and many Americans and a significant number of Europeans will consider this to be an existential threat.  While all of this is going on, the Russians will hem and haw and whistle tunelessly while staring at the ceiling while trying to blend into the background and go unnoticed.  However, the Iranians will not use their newly-developed nuclear weapon against anyone, including Israel.
16. On December 31, 2010, the U.S. national unemployment rate will be somewhere between 7.5% and 8.5%.

I feel I have to renew my prediction that Britney Spears will find Jesus and become even more intensely annoying than she already is.  But I won't make that a numbered prediction anymore because I've been predicting this for four years straight and I'm beginning to wonder just when she will hit a personal bottom such that the Baby Jeebus will get called in.  She does have a very great height from which to fall and a substantial network of leeches personal supporters who will do what is in their power to keep her generating profit personally and professionally functional.  So that's not one I'm offering for credit, just consideration.

Also to be answered in the upcoming year: will TL break down and actually buy his own domain and migrate the blog to WordPress?  The magic eight-ball says...

Predictions for 2009: Mixed Report Card

A year ago, I made some predictions for what would happen in 2009.  How'd I do?

1. The United States Federal deficit for calendar year 2009 will exceed $1.5 trillion. Check.

2. A human being will be cloned. Not Yet (that we know of).

3. There will be serious attempts at coups in two of the following: Morocco, Bolivia, Colombia, Ethiopia, or Pakistan. Fortunately, No.

4. GDP for the United States will decline for at least three of the four quarters in CY 2009. In fact, US GDP declined from 2008q4 to 2009q2, rose from 2009q2 to 2009q3, but 2009q4 data is not yet available.  Incomplete.

5. California will endure a shutdown of all non-essential state government functions, and then increase state taxes. As it turned out, taxes went up, but the state government didn’t shut down to only essential functions. Instead, we got furloughs.  So, this gets Half Credit.

6. Neither the United States nor Israel will participate in an overt military attack against Iran. As I predicted, this didn't happen.  Which is good.

7. Britney Spears will "find Jesus" and make a spectacle of displaying her newfound piety. I keep on waiting for this but no, Not Yet.

8. At least once in 2009, it will take two U.S. dollars to buy one Euro. Nope, I was too pessimistic here. It got up to $1.51 for a while but never quite reached $2.00.

9. "Watchmen will gross over $1 billion, including its timed-for-Christmas DVD release." Not even close.  "However, a movie called Public Enemies will get tons of hype but lose money in theatrical release, as its cast of hot young stars fails to excite audiences about crime in the 1930’s."  Public Enemies did indeed lose money in its theatrical release, although just barely.  Guess there aren’t as many geeky fanboys as I’d thought. Half Credit.

10. UK Prime Minister Gordon Brown will survive a no-confidence vote. He’s been in political hot water all year, including an inchoate challenge to his leadership from within his own party, but emerged from that with enough of the Labour Party rallied under his banner to avoid a realistic call for a no-confidence vote.  That's not enough for even half credit, so I'm grading myself "wrong" on this one.

11. The Detroit Lions will use their #1 overall draft pick to select Oklahoma quarterback Sam Bradford rather than the strong, fast DLB that they really need. They took Matt Stafford instead – a hot college QB, but not the exact one I predicted and certainly not the shore-up to their defensive unit that they needed (and still need) so badly. Half Credit.

12. General Motors will file for Chapter 11 bankruptcy protection. Check.

13. The United States will abandon plans to re-invigorate its space program with supra-orbital manned missions. It wasn't portrayed this way, but that is the result.  Check.

14. Over vitriolic but ineffectual Republican opposition, Congress will pass a “carbon tax.” Congress got hamstrung on health care reform instead, so this gets a "not so much."  Give them another year.

15. Barack Obama will name at least one Justice to the Supreme Court of the United States. Check.

16. The average U.S. price for a gallon of 87-octane unleaded gasoline in CY 2009 will be under $2.50 a gallon. This one’s right on the margin. For the first half of 2009, it was below $2.50, and for the second half of 2009, it was over $2.50.  Let's call it Half Credit.

So, that's more right than wrong.  Next -- predictions for 2010.

Now I Know What It Sounds Like To My Cousins When I Talk To My Wife

Well, maybe not exactly what they think we sound like, but the singer is intentionally trying to sound like an English speaker, I think an American, without actually using any real English. Over at LGM, a commenter correctly identified the artist as Adriano Celentano, who is a huge Elvis fan, and you can kind of hear the influence in the song.  I think it's damn catchy.

Not Everyone Should Go To College

Source: Online Colleges and Universities

The Most Efficient Sweetener Around

Why is everything sweetened with high fructose corn syrup?  Because calorie for calorie, it's the sweetest inexpensive natural sweetener around.  If other kinds of sweeteners were used, products would be more expensive and have more calories.  Not sweetening food products is not an option because sweet products sell better than non-sweet ones.

Nature is responsible for the first rule.  The expensive chemical processes used to refine saccharine, sucralose, and aspartame (which are all much sweeter than natural sugars) are responsible for the second rule.  You, the consumer, are responsible for that last rule.

So if you think that high fructose corn syrup is slowly killing America underneath its own fat, you're simply wrong.  It isn't bad for you and if we used other kinds of sweeteners, we'd be even fatter than we already are.  Read all about it at Skeptoid and more at TechSkeptic.

Maybe It's Time To Start Taking The Train

So let me get this straight.  Dutch Security fails to identify a potential terrorist and keep him off a plane flying in to Detroit.  Then, the guy turns out to be a not very competent suicide bomber and fails to properly discharge his chemical detonator concealed within the lining of his underwear.  He is then subdued by fellow passengers and is now an existential threat to the United States from inside his cell in a Federal penitentiary in Ann Arbor.

Because of this, I will now not be allowed to leave my seat to pee for the last hour of any flight, unable to have a blanket if I somehow get to sleep, and maybe will not have the ability to use electronic devices at, well, pretty much any time during my flight.  Well, that might change with a by-your-leave from the airplane's captain.  Someone seems to have forgotten Rule One.  And that the Lockerbie bombing took place less than an hour after takeoff, not in the final hour, which pretty conclusively demonstrates that if a nutbag wants to blow up an airplane, he doesn't much care where in the flight arc he might be.

I don't see how preventing me from using my laptop or making me pee my pants is going to keep the airplane any safer.  And at some point, this increased and increasingly burdensome airline security is going to produce not just diminishing but decreasing returns in terms of both overall safety and allocation of security resources.

New Cooking Toy

So where was this when everyone was asking me what I wanted for Christmas?

Towards Thirty Seconds

There are people who are obsessed with all sorts of obscure things.  Like paper planes.  I like paper planes too.

Alex Kozinski Brews Up A Constitutional Crisis

I.  Background

Karen Golinski is a staff attorney employed by the United States Court of Appeals for the Ninth Circuit, who works out of the Ninth Circuit's headquarters office in San Francisco.  In 2008, during the window of time in between the California Supreme Court's decision in the Marriage Cases and the passage of Proposition 8, Golinski married her life partner, Amy Cunninghis.  Golinski and Cunninghis have a five-year old son together and it appears that they have been a couple for many years before that.  Subsequently, the California Supreme Court has ordered that the passage of Proposition 8 had the effect of preventing future marriages between same-sex couples* but did not void marriage licenses issued in the five-month window of time when California actually treated all of its citizens equally with respect to the fundamental right to marry.

Now, as a legal matter, I think the California Supreme Court's ruling that the licenses that were issued will stand but no new licenses can issue is not the correct interpretation of the voters' intent in passing Proposition 8.  Prop. 8 states that "only marriage between a man and a woman is valid or recognized in California."

The plain text of this amendment to the state's Constitution means that any marriage, regardless of what state issued the license or when that license was issued, is not a marriage at all.  The phrase "is valid or recognized" is the operative language that I'm looking at to say this.  Not to be cute about it, but it comes down to what the definition of "is" is.  "Is" is the present tense of the verb "to be."  That means that right now, as of this very instant, a marriage between two women is not a marriage between a man and a woman, and therefore it is not "valid or recognized in California."

As I see it, that is what advocates of Prop. 8 wanted -- that there be no same-sex marriage in this state, and their obvious desire to overrule and reverse the Marriage Cases.  As a normative matter, I find this abhorrent. But they won and that is now the law of this states.  As a legal conclusion, then, I can find no escape from this result aside from unsupported judicial fiat subverting and softening the blow, which is what I see the follow-up ruling letting the existing licenses stand to be.  The fact that as of yet, neither the Legislature nor the voters have decided to step in on this matter simply indicates that the Supremes seem to have found a politically acceptable resting place for the issue.*  That I prefer the Supreme Court's result to the one I reached as a normative matter is not the same thing as saying I think the reasoning is correct.

Golinski, however, is a Federal employee, which means that the terms and conditions of her employment are principally governed by Federal laws and regulations.  As we all know, during the Clinton Administration, Congress passed a law, which in a supreme bit of legislative irony has been named The Defense Of Marriage Act.  The Federal government will not recognize any same-sex marriage issued by any state.

Thus, even after marrying her wife, Cunninghis was not eligible for health insurance benefits on her wife's benefit plan.  Golinski can get insurance for herself at the favorable rates available to Federal employees, but even if she is willing pay out of pocket, Cunninghis cannot get those benefits.  I've been unable to learn what, if anything, Cunninghis does for a living, and it is also irrelevant.  Golinski complained that heterosexual employees of the Court are able to enroll their spouses in the Federal insurance program, but she cannot, because of DOMA.

II.  The EEO Action

So Golinski presented an internal EEO appeal within the court system, and it found its way before Alex Kozinski, who is serving as Chief Judge of the Ninth Circuit.  Judge Kozinski is well-known to con law geeks like me as one of the most outspoken of the many brilliant judges working in the U.S. Circuit Courts, unafraid of controversy and unafraid to coin direct, hard-hitting language in his opinions.

In his capacity as the Chief Judge of the Ninth Circuit, no one outranks him other than the Supreme Court of the United States, and as a Constitutional officer of the United States of America, he holds his term for life absent treason or impeachment by Congress, and he derives his power directly from the Constitution and not from either Congress or the President or the voters who elected them.  Judge Kozinski used that power on behalf of his court's employee and issued an opinion finding that a plausible interpretation of the laws governing the benefits of Federal employment would include same-sex spouses, and then made the following order:

The Director of the Administrative Office of the United States Courts is therefore ordered to submit Karen Golinski's Health Benefits Election Form 2809, which she signed and submitted on September 8, 2008, to the appropriate health insurance carrier.  Any future health benefit forms are also to be process without regard to the sex of a listed spouse.

Judge Kozinski went so far as to include a personal signature on the order, which is a somewhat unusual, but very Kozinski-esque, flourish to the action.  Kozinski's order was issued on January 12, 2009.  Importantly, although he mused that there were weighty issues to consider on both sides of a Constitutional challenge to DOMA, he declined to take on the issue of whether DOMA is constitutional or not.  Instead he did a judicial sidestep, interpreting various statutes to harmonize them and reach the result that a "family member" for purposes of the benefit statutes could include a same-sex spouse despite DOMA.

III.  Executive Response

Now, if "judicial activism" is defined as a judge first deciding how he wants an issue to be resolved, and then undertaking a search for reasoning and legal support for that conclusion, that's pretty clearly what Kozinski did.  As I've noted many times elsewhere, "judicial activism" is only a bad thing if you dislike the result.  I happen to like the result here -- I think Golinski should be able to enroll her wife just the same as I would be able enroll my wife if I were fortunate enough to have a Ninth Circuit staff attorney job.

But that's not the law.  And that's not how the Federal Office of Personnel Management has handled it.  It punted the issue upstairs and it made its way to the Obama Administration's Justice Department.  The party line got handed down, and thus the general counsel of the OPM wrote back to the Ninth Circuit's administrator:

OPM must administer the FEHBP [Federal Employees Health Benefits Program] in a lawful manner, and the Department of Justice (DOJ) has advised the OPM that providing those benefits would violate the so-called 'Defense of Marriage Act' ... [she goes on to note] As the President has explained, the Administration believes that this law is discriminatory and needs to be repealed by Congress -- that is why President Obama has stated that he opposes DOMA and supports its legislative repeal.

In other words, yes we agree that DOMA is discriminatory, but it is a form of discrimination permitted by the Constitution and until and unless Congress repeals it, the entire Federal government must abide by it, and that includes the Administrator of the Ninth Circuit Court of Appeals, no matter what Judge Kozinski says.  To underline the point, OPM has taken the position that Judge Kozinski was acting as an administrator and not as a judge when he issued his opinion in January.

IV.  The Gauntlet Is Thrown

Kozinski's response was, predictably, uncompromising.  About a month ago, he ordered back pay for Golinski to make up for the cost of buying private insurance for her wife, and today issued this rather sour order:

The time for appeal from my orders in this matter, dated January 13, 2009, and November 19, 2009, has expired. Only the Blue Cross and Blue Shield Association (“Blue Cross”) has filed a timely notice of appeal; it petitioned the Judicial Council for review of my November 19, 2009, order on December 17, 2009.  My prior orders in this matter are therefore final and preclusive on all issues decided therein as to others who could have, but did not appeal, such as the Office of Personnel Management (“OPM”) and the Administrative Office of the United States Courts. Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 398–402 & n.4 (1981); see also Travelers lndem. Co. v. Bailey, 129 S. Ct. 2195, 2205-07 (2009).

As the jurisdictional issues presented in Blue Cross’s petition for review are separate and distinct from those concerning my now conclusively-determined jurisdiction over governmental entities such as OPM, l authorize Ms. Golinski to take what further action she deems fit against any entity other than Blue Cross, without waiting for the Judicial Council’s disposition of Blue Cross’s appeal

So what we have here is a genuine Constitutional crisis, a showdown between the judicial and executive branches.  OPM has refused to obey an order of a judicial officer of the United States, and that judicial officer has told the executive, in no uncertain words, that the executive and not the courts are in defiance of the law.

V.  Analysis

As a matter of applying the law on the books, Kozinski is simply wrong here.  DOMA is an Act of Congress, passed in a procedurally correct fashion and signed into law by President Clinton.  So, Kozinski's initial memorandum and order were ill-advised ways to (directly) change the law. In order to properly address Golinski's complaint, you have to tackle DOMA head-on.  Kozinski chose instead to finesse the issue and that just plain doesn't work here.  It's no wonder that the OPM stuck to the safer, black-letter application of DOMA here. 

Note that the memorandum from OPM indicates that it does so grudgingly; it calls the applicable law the "so-called Defense of Marriage Act" and points out that the Administration would like to see Congress repeal it.  But for all the foot-dragging, OPM is enforcing that law.  Everyone seems to want to enroll Cunninghis on the benefits program, although only Kozinski is doing anything about it.

A substantial argument can be made against the Constitutionality of DOMA as a form of gender discrimination -- the argument is that application of DOMA here discriminates against Cunninghis because she is female; were she male, she could be enrolled in the insurance benefit program and the only thing keeping her from enrolling is DOMA.  Golinski might be the wrong person to bring the challenge; she is eligible to be enrolled whether she is married or not.  Cunninghis ought to be named as the party with direct standing. 

We know very well that a U.S. District Court has to power to hold an Act of Congress unconstitutional and that can stick.  We also know very well from past Administrations that if the President believes a particular Act of Congress to be unconstitutional -- even if only colorably so and he actually merely finds the law ill-advised and inconvenient -- he can refuse to enforce it.  The more recent Bush Administration was historically the most prominent Administration to adopt this stance, but it was not groundbreaking with respect to claiming such a power, an interpretation of the role of the President in the Constitutional scheme that can be traced back to Lincoln and possibly even to Jackson.

So OPM's stance is not the result of a principled decision by the Obama Administration to honor the Constitutional process; it is rather the result of the Obama Administration choosing to not take a stand, choosing to punt the issue back to Congress.  In the meantime, there is an outstanding judicial order which OPM is defying, acting under the direction of the President.

So how does the tension between the executive and judicial branches get resolved?

The traditional method is for the aggrieved party to file a lawsuit and seek a writ of mandamus against the government to get the requested relief.  But that method is ultimately unavailing here.  If the result of the lawsuit is an order of the District Court that OPM enroll Cunninghis for benefits eligibility, that's the situation we have now, which is a standoff and OPM, being part of the executive branch, will win as a practical matter because it represents the status quo.


The other solution that I see would be for Congress to intervene and repeal DOMA.  I just plain don't see that happening.  The Congresscritters running the show do not see this as any kind of a priority at all, and likely do not see any reward to themselves for doing this -- although they do see risk to themselves in doing it.  So the solution for them is to posture that, "Gee, I'd really like to repeal DOMA" but never actually do anything about it.


One thing that might work, though, is a direct judicial challenge to DOMA by Golinski and Cunninghis.  Rather than ask for the writ, they could say that DOMA is itself unconstitutional, and if it is declared so, then they can get the relief they want.  This is the way it will likely go down.  I'm not happy about it, though, because it requires blurring the line between gender discrimination (which is prohibited by the Constitution) and sexual preference discrimination (which is not).  To prevail, there are only two ways that I can see working.  The first argument is that sexual preference discrimination is a form of gender discrimination.  This is the argument I articulated above when I pointed out that Cunninghis could make the claim that "were she male, she could be enrolled in the insurance benefit program and the only thing keeping her from enrolling is DOMA."  The other way would be a judicial re-interpretation of the Equal Protection Clause to overturn prior decisions and incorporate sexual preference as one of the bases for invidious discrimination.  This second method has less intellectual and historical support than the first.


Such a case would necessarily work its way through the judicial process up to the Supreme Court.  Since we can safely predict that Congress will not repeal DOMA because it lacks the stones to do so, and the Administration will not willingly disregard it because it lacks the stones to do so, the decision will ultimately rest with the nine black-robed mandarins on First Street.  Why is this so often the case?  Because it's a difficult, politically risky decision.  Our political process has produced a dearth of leaders willing to tackle difficult, politically risky decisions, and the courts exist as remaindermen to handle them.

So what we have here is a Constitutional crisis.  One that will not be resolved through the ebb and flow of the political process but which must necessarily result in a high-level challenge to an Act of Congress.  Karen Golinski and Alex Kozinski are its architects. I think that will become the case to watch on this issue.

* Until such time in the future as the voters may choose to repeal Prop. 8, which I hope will be soon.

Headline Writing

Opponents of same-sex marriage in Iowa want to have something like California's Proposition 8 there to overturn the judicial decision extending marriage rights to same-sex couples.  If you were writing a news story about this political effort, you could use any of a number of headlines.  For instance, it would be 100% accurate to say:

Opponents Push to Overturn Gay Marriage Rights

But you could also easily say that this headline is accurate:

Gay Marriage Opponents Push To Let Voters Decide

Guess which of these two headlines FOX News chose.  I'm not going to say that the content of the article is incorrect or that either of the headlines is inaccurate.  What I'd point out is that the first headline is a "pro-gay marriage" headline because it presumes that gay marriage already exists as a matter of right (which, in Iowa, it does) and that the opponents want to overturn them.  The second headline is "anti-gay marriage" because it conveys the idea that same-sex marriage was imposed on Iowa by judicial fiat and not through democratic means.

In the first headline, SSM opponents are trying to take away someone's rights.  In the second headline, SSM opponents are standing up for democracy.  Thus, it is possible to slant one way or the other while still being completely accurate and truthful.

What do I think?  You all already know this.  Not all decisions in our system of government are made through the democratic process, nor should they be.  The majority is not always right, and democracy is not always the best way to resolve some kinds of issues.  The military is our most respected and debatably our most effective governmental organization, and there is nothing in the least bit democratic about it.  Had the issue of civil rights and racial equality been left to purely democratic processes, African-Americans would still have "separate but equal" drinking fountains from the Mason-Dixon line to the Rio Grande.  There would be statutes on the books criminalizing the burning of the American flag in some places, and criminalizing the possession of firearms in others.

That's not to say that I don't think democracy is important or a bedrock principle of our nation.  Many, even most, decisions of the government should be made through democratic means, whether directly or indirectly.  But there are things that must be placed out of the sphere of the democratic process, and individual rights necessarily are among those.  The majority will and often does attempt to take away the rights of minorities, often dressed up in justifications of morality, necessity, or fulfillment of the freedoms of the majority.  But even if the majority has a legitimate claim to some kind of freedom (no one has the "freedom" to prevent offensive speech from being made; your "freedom" is to change the channel, turn away, or argue against the speaker) the proper venue for balancing competing claims to freedom is a court, not a legislature.

The reason for that is that freedom, in our Constitutional structure, is really a limit on the government's exercise of power.  There are limits on the government's power to tell you who you can or cannot marry.  Can a man marry a 12-year-old girl?  That's probably within the government's ability to restrict.  Can a man marry a woman who has previously been divorced from a different man?  That's beyond the ability of the government to control, that's within the individual freedoms of the divorcee and her intended new husband.  What is the principled difference between the 12-year-old and the divorcee as potential marriage partners?  That is ultimately a judicial rather than a political question, because we are discussing matters of individual rights rather than majoritarian preferences.  Yes, there is a role for democracy in the process, but it is not the final word.

And that is the issue of slanting in reporting the news.  The second headline above implies and assumes that the democratic process is to be inherently favored over a non-democratic process.  But democracy is not the be-all, end-all of our form of government.  The be-all, end-all of our form of government is that the powers of the government are limited in a principled way.  H/T to Box Turtle Bulletin.

Green Christmas

Merry Christmas to my Christian readers!  Today, I give you a Green Christmas.

We begin by debunking some ecological myths.  Well, sort of. 

Then, I'll point you to an interesting set of thoughts about global warming as an ethical and policy issue given that the science is simply too complicated for us to understand.

Too Scared To Sue

This only makes sense.  And it demonstrates the real power of the Christian majority of the nation.  Even if a tiny person, whom you could easily sue and roll over under other circumstances, steals your intellectual property for their private profit, no one wants to be seen as "anti-Christian."  So, although protecting your trademarks and copyrights ought to be something that is neutral with regards to religion, in fact a lot of merchants are able to make Christianized parodies of all sorts of stuff and never get called on it which has led to the creation of a $4.6 billion industry that is wholly and totally illegal.  I say, stealing is stealing, even if you do it in the name of Jehovah.  H/T.

Heatlh Care Reform Crazy Reaches A Pinnacle

For the record, I don't imagine for a second that most American Christians who take their religion seriously and consider themselves patriots would do anything but condemn trying to invoke the power of prayer to have God strike a fellow citizen dead, no matter what the intended victim's political views might be.  But I think it's sick that someone did this.  And I'm opposed to the health care reform bill, too.

The Battle Of Santa Claus River

Freaking hillarious.  Happy Festivus, everyone!

Protection And Care Of An Ancient Document

This description of how the original Declaration of Independence is cared for when it has to be moved about is fascinating.  The author does not indicate but I presume that he refers to the actual document that was written in Jefferson's own hand after the markups by the Continental Congress.  While the Declaration of Independence is not a legal document, it is of tremendous historical and political significance.  And, more to the point, the article is symbolically very powerful.  If the Declaration is a symbol of our freedom and our liberties, it is entirely appropriate that the government take such elaborate precautions to safeguard it.  And, it is also fitting to notice how fragile this object really is.

Disturbing Use Of Photoshop

Among other sources for sports news, I sometimes read Yahoo! Sports' Shutdown Corner NFL blog.  This week, that blog used the graphic posted at the left to advertise its live chat for the Monday night football game between Washington and the New York Football Giants.  Which I didn't think much about until I looked at it twice.  Then I said -- huuuh?

On the left is a picture of David Diehl, an offensive lineman, who usually plays tackle for the Giants.  On the right is what appears to be a Washington Redskins cheerleader.

Who has no breasts. 

Look closer, on the right.  I've about doubled the size, so some resolution has been lost, but otherwise I've not altered the picture from what was published on the intertubes Monday evening.  The little halter-top thingy she's wearing appears to go across where her nipples ought to be, but they just aren't there.  As best I can figure out, this is altered in some way; the breasts of this otherwise-attractive woman have been either airbrushed or photoshopped out, leaving a hairless, thin, frame in which ribs can be discerned and no shape of breasts can be seen.

Maybe she's jumping?  Or arching her back really far?  That would move the girls around so that they aren't quite as large-looking and not where we would expect them to be -- but I wouldn't think to this extent.

Now, some women have had masectomies, and other women are not endowed with large breasts.  A look at the official roster of the Washington Redskins cheerleaders website* reveals that each of the women on the dance squad does, in fact, have breasts.  Not all of them are D-cups, but they've all got them.

So who is this?  Is this a transvestite?  Okay, I guess a transvestite can dance and cheer, too -- but trannies, as far as I can tell, would go to some effort to make sure that they projected an external image of femininity and that involves wearing "falsies."

No, I think someone, for some strange reason, photoshopped a picture of an otherwise-attractive cheerleader to make her look like this.  Maybe he dated her and it didn't work out.

* I'm there for you, Readers, always ready to do difficult, tedious research projects like that.

Cheer Up, TL, At Least You've Got Time Records To Audit

In reading over my last three posts, you may get the sense that I'm bitter about something.  And it's true that it kind of stung to lose by one point to Pittsburgh as time expired after what I think was a remarkably smart coaching decision by the Steelers to set up their comeback.  But the truth is that at last the end-of-the-year activities, both professional and personal, have finally caught up with me and there feels like a crushing amount of stuff to do.

Riddle Me This, Riddle Me That...

How come when I get up in the middle of the night to pee I always step with my bare feet on the last remaining tack strip on the edge of the only carpet in the entire house?

On Healthcare Reform

Our elected officials have been arguing over the details of healthcare reform for a long, long time now.  It remains unclear to me whether Congress will be able to pass a reconciled bill before its recess -- and when it returns in January, those Senators and Representatives who didn't get enough pork thrown their way to overcome their reluctance to vote in favor of something their constituents will not like them voting for will dig in their heels until they get some because the bill will have to start over again.  In the meantime, all of the tears, fears, and jeers of the past half year's worth of political debate have been for literally dozens of Congressmembers arguing, with great seriousness, vigor, and attitudes of public concern, about exactly how they are going to construct a very large pyre upon which huge portions of our money (or more precisely, our childrens' money) will be burnt so as to further insulate favored segments of the medical services industry from the uncaring invisible hand of the free market, while our President insists that the trillions of dollars being spent on this project are somehow "cost-neutral" by fiat of calling them so while those Americans who actually pay for healthcare now inevitably wind up paying more money in taxes and higher insurance premiums, and wind up no healthier and live no longer or better lives than we would have had nothing changed at all.

In Which I Succumb To Grade Inflation Pressure

So I've been worried about teaching an undergraduate class.  Here's my solution, and the rationale.  Returning undergraduate students have their strengths and weaknesses.  For instance, they deal poorly with ambiguity.  That means that if I give them this question:

Paul and Donna both live in Los Angeles.  They are parties to a written contract.  The terms of the contract are that Paul is to pay $10,000 to Donna, and Donna is to give her sky-blue 2005 BMW 735i to Paul in exchange.   Paul delivers a cashier's check made out to Donna in the amount of $10,000, which she takes.  After depositing Paul's check into her personal bank account, Donna drives her sky-blue 2005 BMW 735i to Toronto and sends Paul an e-mail saying that she really likes her car and prefers to keep it.  Which of the following is the most likely conclusion a Court would reach in this situation?

A)  Paul has breached the contract because there was no provision for payment in the form of a cashier's check.
B)  Donna has breached the contract because she failed to perform her end of the bargain.
C)  Neither party has breached the contract because Donna properly rescinded the deal.
D)  Donna has not breached the contract because she has moved the car beyond the jurisdiction of a California court.

Now, you might think that the correct answer is pretty obvious here, even without having taken an undergraduate-level business law class.  But remember, I don't teach at places like Stanford or UCLA.  So if I ask that question of ten undergraduates of the caliber I anticipate getting, at least one of them will answer "A," and at least three of them will answer "D," and at least two will answer "C."  When I announce that the correct answer is "B," I will get a lengthy, passionate argument from one of the students who answered "D" about how no court in California can possibly extend its jurisdiction to Canada.  When I say that even if that's true, Donna still breached the contract, another student will begin to whine loudly about how figuring out the answer to that question depends on an unfairly subtle and arbitrary interpretation of "one little word" and the complaining student's murky misunderstanding of the question is just as valid as mine and should be given at least partial credit.  I've got about a one in three chance of the guy who answered "A" responding to my refusal to give him credit for that answer by filing a complaint to the school's administration about my "trick questions."  That's what I mean when I say that undergraduates do not deal well with ambiguity.

It goes on from there.  Undergraduates expect that if they "put in the effort," this will produce a good grade.  Which is a way of saying "they expect to be given second and sometimes third chances to make up for their own poor study habits because I'm supposed to believe they spent eight hours staring blankly at the textbook last night."

They do badly with grading units that compromise large percentages of their grades; they are more comfortable with evaluation formats where each set of criteria are relatively small portions of their overall grade.  Their downward grade projection curves only increase over time, of course, because they don't properly diagnose and correct academic performance problems which are signaled by poor results on earlier evaluations.  But they like getting those signals.

They expect to be rewarded for participation, and by "participation" I mean "showing up," and doing so in a timely fashion is often more than can be reasonably expected of them.

They respond better to being told in advance what is expected of them.  This means that they want to be given the actual objective questions that they will be asked, in advance of being actually asked them.  "Could you distribute the actual final exam maybe the week before the exam is due?" is a question I actually was asked by one of my students the last time I taught this class.  The student was quite earnest and truly didn't understand why I scoffed at this suggestion.  Now, I have learned from that mistake and I will do as he suggested -- as I describe below.

After all, these are adults, they are paying good money for the service and the ones who are good students are going to learn the material no matter what I do, and the ones who are not good students are not going to learn the material no matter what I do.  So I need to cater to these expectations because I am not teaching in a world of academic rigor or high standards.  I need to minimally satisfy subject matter coverage and demonstrate that I am doing something to evaluate the students by way of producing a grade spread.  Well, getting a spread is easy; something like two-thirds of them wouldn't even bother putting their own names on things they turn in to me even after I remind them to, so if the written test consists of "1. Sign your name to this form.  2.  Turn it in." I would still get a grade spread because that's too complex a series of instructions for some undergraduates to successfully execute.

Very well.  I will cater to them.  I will produce a format to my class that gives them second chances.  It will sort out unique grades for each student that will appear to any auditor as though I were actually evaluating the students.  It will reward "participation" by which I mean "showing up."  And it will still make sure that only students who actually master the material get "A" grades, so enough students will still complain to the school's administration about me that they'll never suspect just how far I've dumbed down the class.  Here's how it will work.

I've been assigned to teach the class in nine classes, once per week.  So each class is one-ninth of the overall grade.  Each evaluation unit will be a twelve-question quiz; each question will have four possible answers and only one "best" answer.  I will distribute the actual quizzes in advance of the class in which it is due.  Quiz answers are due at the start of each class.  A correct answer is worth 5 points, which is full credit.  An incorrect answer is worth 1 point, because, after all, the student "participated" by answering the question at all.  Then, I will lecture about the subject matter of the quiz.  If, at the end of class, a student believes that she has turned in an incorrect answer, she can amend her answers and I will use the amended answers.  A correct amended answer is worth 3 points.  The only way to get 0 points is to not answer the question at all.

The school's grading format is 90% and above is an "A," 80% and above is a "B," and so on.  60% and higher is a "D," which earns credit for passage.  There are no plus or minus grades; so there is no C+ or B- or so on.

Now, you'll notice that 3 is 60% of 5.  If you get the question right initially, that's 100% credit.  If you blow it and get it wrong (if you somehow thought that Paul breached the contract by paying the exact amount he was supposed to pay in the form of an irrevocable demand instrument that was actually negotiated), then you get a second chance -- after I discuss this exact question and say, out loud in class, "...and that's why 'B' is the correct answer to question 1," you can turn in a form that says "I change my answer to question 1 to 'B.'"  Then you jump from 20% credit to 60%, which is the minimum you need to pass.

If you're a complete boob who gets literally every question wrong, you can still correct and get 60% of the credit, which is what you need to pass.  Leave aside the issue that I'm going to make the questions as easy as I can in good conscience and...  Strike that.  Strike everything in that previous sentence after "...as I can."  I thought my example question above was pretty easy, but I intend for that to be the "tough" one.

But, no one is going to get literally every question wrong.  A Cornish game hen will wind up selecting the correct answer as between options A, B, C, and D roughly 25% of the time.  I played with some probabilities and the chances of purely random selection getting all 108 questions wrong is 1:311,447,000,000.  Even that one poor soul whose odds of doing so spectacularly badly are less than one in three hundred billion cans till show up and pays enough attention to correct his mistakes and if he does that he'll still pass.

Taking it a step further, of course, the odds of someone getting all the correct answers by chance are roughly equivalent to a quantum tunnel appearing in his garage while he's watching the rebroadcast of Survivor: Santa Monica,* and inciting a localized fusion event that transmutes his 1999 Pontiac Grand Prix into a two-ton bar of pure gold complete with engraved elephant logos.  Yes, it could happen.  The odds are just phenomenally against it.  If the student is not concerned with getting a perfect score but just wants a passing grade, then his odds improve to only 102,522,541 times less likely than he is of winning the Mega Millions Lottery jackpot in any given draw.

So you see, I can defend this against academic scrutiny.

But what's really likely to happen is that the dimmest possible student will guess at all the answers and through the machinations of chance get 25% of them right and earn full credit.  Then, that student will amend and correct the 75% he got wrong.  25% of the questions earning 100% credit, plus 75% of the questions earning 60% credit produces -- 70%.  That's a "C."  So if you totally ignore the reading, simply guess as to all the answers, and come to class and pay attention, statistically you should get a "C."

Or, you could read the book and try to get the answers right, and simply skip coming to class.  Truth is, that's perfectly fine with me.  If I never see you, never talk to you, never have to deal with you in any way other than plugging twelve letters you send me over the e-mail once a week, that's a pretty sweet deal for me and it could be a sweet deal for you, too.  If your study lets you get 75% of the questions right, and 25% wrong, and you don't bother to come to class to get partial credit for the ones you get wrong, hey, that works out to a grade of "B." 

But, of course, every class has its over-achievers.  There will be those students who do the reading and come to class.  I figure that if you do the reading and actually understand it at a rudimentary or better level, you can get 75% of my questions right given that you have a week to answer twelve questions which you know in advance with the benefit of the textbook right there in front of you.  And if you come to class and "fix" the other 25% so you get partial credit for them, then that's what passes for "excellence" these days and you get an "A."

I know there are law school and college professors out there reading this and blubbering with tears that I've reduced my standards to be this low.  "Any damn fool could get an 'A' with a format like that!"  You're exactly right.  But don't worry -- there are still going to be plenty of people who manage to not get "A" grades despite this format.  I'll bake and eat my favorite hat if that doesn't happen.

Besides, I'm just responding to market pressures.

I get paid to cover subjects X, Y, and Z, not to teach English.  If undergraduates have poor writing skills, that's your fault, English teachers, for passing students who don't know that sentences have both subjects and verbs.  If they have poor research skills, that isn't my problem.  It's your fault, academic skills instructors, if students from your classes think that "research" means cutting and pasting from Wikipedia.  If a college student doesn't understand that the proposition "Some Americans are Democrats" does not logically support the conclusion "Barack Obama was born in Kenya" that is the fault of critical thinking and logic instructors, not the fault of a business law teacher.  If you get a student who thinks that a "tort" a small pastry with a fruit filling, or that the penalty for filing bankruptcy is habeas corpus, then okay, you can come talk to me about that.

And I really, really don't get paid to "weed out" the students who don't yet have college degrees because they lack the intellectual ability to deal with material at this level.  The way I see it, it doesn't matter how easy I make the class.  Those students will still, somehow, find a way to fail no matter how easy I make it.  And I suppose no matter what, I'll have to deal with their angst about that.  But this will be easier because I can tell them that no matter what, if they show up and pay attention, they'll still get at least a "C."

See, it's become clear to me that there isn't really a lot of concern about what I actually teach.  I've given up on hoping that any of my undergraduate students will be inspired to explore law as a career option.  They look at the class as a hoop they have to jump through and an additional chit on their student loan package.  They look at the degree as a formality, a meaningless piece of paper, and not as a symbol of actual knowledge or intelligence.  That's how their employers treat the degree and at the end of the day, the for-profit career college treats it that way, too.

Instead, I get to talk to a captive audience for a few hours, try out new jokes, and refresh myself about the UCC.  It's fun to see the bright students "get it," but the pleasure I get from that isn't worth the misery of dealing with the students who shouldn't be in college in the first place.  So I've decided it's easier to make it as simple as possible to cut down on the whining, still filter out the excellent from the mediocre to satisfy my own sense of intellectual obligation that I do so, and adhere to the overall ethic of "Pay your fee, get a C."


* See, it's not just my tests that are getting easier over time.

Weekend Weirdness, Volume X

To begin this tenth edition of Weekend Weirdness, I give you tens.

Tens of weird commercials.

Ten half minutes of a guy in a chicken suit playing "What is Love?" from Ring Mod on Vimeo.

Okay, "ten half minutes" is really "five minutes" but that didn't fit into my "ten" motif and I wasn't going to watch that chicken for ten whole minutes. But, I've got a graphical depiction of at least ten ways you can die in the United States, sorted by county.

And ten hot people involved in the Tiger Woods sex scandal.  I don't care what they say about the Perkins waitress, I think she's cute.  Bonus in the link -- these guys think every song Sarah McLachlan has ever written is about college football which, if you're obsessed with college football, might not be such a great stretch.  (See, it's "Fumbling Towards Ecstasy," right?  Her biggest single is all about "Possession."  How about them lyrics -- "Hold on to yourself, 'cause this is gonna hurt like hell" could easily be a threat from a linebacker to a quarterback.)

Felicitously Named Initiatives

At lunch today, my friend pointed out that the proposed initiative to legalize and tax marijuana in California had recently announced that it has obtained half again as many signatures as needed to qualify for appearing on the ballot in 2010.  I joked that it should be titled "Proposition 20."  That way, the sponsor's political entity could be called "Californians For Twenty."

Inspired By Hit Coffee: A Good Local Government Story

Inspired by this post over at Hit Coffee, I should point out two things that are good about the two municipal governments that I have noticed recently. 

First, Soffit House is located on the very edge, but still within the municipal limits, of the city of Lancaster.  Two weeks ago, The Wife and I were walking the dogs and noticed that the retaining wall outside one of our neighbor's houses had been tagged with a large, ugly, gang-associated-looking graffito.  I hadn't noticed it driving home that day, so it must have only been a few hours old when we saw it.  Well, the very next morning, a crew in a city truck was out there at the spot, applying paint remover and a new coat of fresh paint on the spot.  It couldn't have been up on the wall for eight hours, tops.  I thought that was excellent response time and top-notch service from the city government.

Second, yesterday afternoon I saw a dead cat on the side of the road in an undeveloped section of the city in which my office is located.  The unfortunate beast had been struck by someone's car and flattened out to gossamer thinness by the traffic.  I called him "Slim."

This wasn't in front of anyone's house or business; both sides of the street are undeveloped desert.  I think one side of the street is actually unincorporated land.  But this morning, Slim The Unlucky Former Cat was gone; no trade of him was visible.  Someone from the city (or maybe the county) had come by to scrape him up and hose the street down.

Now, I'll grant that The Wife saw some coyotes out in the desert about a quarter mile from where Slim had met his demise.  I didn't associate the coyote sighting with my earlier, more grisly observation.  So maybe they helped clean up Slim, but there would still have been bones, skin, fur, and probably a smear of viscera.  So some human agent at minimum finished the job.  And they got on it pretty fast.  So good on for them.

NOTE:  This blog post satisfies the GGV Challenge ("Graffito, Gossamer, and Viscera") for coherent use of obscure words in context.  I defy you to do better.

No Apologies

I don't know why I should feel guilty about taking several days off in a row or why I should feel a need to explain why I haven't written anything in a while.  I kind of do feel that way, though.  But other bloggers don't even bother to apologize for not posting -- why should I?

Wrong About Something Else

I wrongly predicted that most of the money spent by both the Bush and Obama Administrations bailing out the big banks would not be paid back.  This appears to have not turned out as I had predicted.  Of the many things I've written about, this is one that I'm particularly glad to have been proven wrong about.

The question then becomes, what should be done with the money when it is paid back?  (It won't be paid back all at once, of course.)  The answer should be obvious -- now that the financial affairs of the pillars of our economy are in some kind of order; this money should be used to get the government's finances in order.

Let's use repaid stimulus, bailout, and TARP dollars to reduce the deficit or buy back the national debt.  Nothing else.

My Failure Of Imagination

I accepted an assignment to teach another class in January.  This one will be an undergraduate class, not nearly as much fun as a room full of bright grad students.  This forces me to confront a problem, which is how to evaluate them.

Bitter experience proves that undergraduate students can't write complete sentences, much less term papers.  So if I give them term papers and base their grades on that, they will all get poor grades and I will be miserable while reading them.

More recent experience, made less bitter only by the fact that less work is involved for me, demonstrates that the test bank by the authors of the textbooks are replete with terribly-worded questions, laced with ambiguities and "incorrect" answers that are, IMO, legitimately defensible and generally based on concepts that are more obscure than I would expect them to encounter in the real world.  Really, does an undergraduate student taking a business law class to fill a prerequisite really need to know the difference between quasi-contract and promissory estoppel?

In an undergraduate class, there will be too many students, and they will not be of advanced enough intellectual development, to have them do classroom presentations.  This is simply not a practical option.

I'm expected to turn in grades and to be able to prove to an auditor that I didn't subscribe to the "if-you-pay-you-get-an-A" mentality.  That leaves me with the following options that I can see:

• Use the existing test bank and tell the students to suck it up.  This will result in at least two of my nine available classes being consumed by student angst over the poorly-written questions.
• Write my own multiple choice questions.  This is a lot of work for me.
• Assign term papers, and suck it up while reading about thirty students' extremely poorly-written eight-page screeds.

None of these look like good options for me.  So I cast about for realistic alternatives to objective testing and term papers appropriate for undergraduate students, and I can't think of any.  When I have a failure of imagination, I throw the door open to you, my good Readers, and hope that you will be able to give me a better idea than the bad ones I already have.

The Book Moves, The Crowd Loves Her

I reported a while back that a friend who works at a bookstore told me that the Sarah Palin book was gathering dust on the shelves. Now she says that it's moving well. This little video shows what might be a reason why: the woman has a good sense of humor. I give you -- Shatner reads Palin, Palin reads Shatner.

I think really gives Shatner a run for his money.

Weekend Weirdness, Volume IX

LOLCats -- annoying the hell out of you since 1929!

After Japanese stereoscopic photography was rediscovered, so was the lost art of stop-motion photography, this time by disaffected Spanish college students. 

Living on a cliff:  probably not a good idea for the vision-impaired or families with small children, but it does allow strangers from around the world to visit your home town and take pictures of your house.  If you're, you know, European.

Origins of common superstitions.  Does anyone believe in this stuff anymore?

Not so much weird as very gratifying to see -- a photograph from a dance in 1944 sponsored by a Federal workers' union.  Notice that white ladies are dancing with black soldiers and everyone seems to be having a good time.  Perhaps less gratifying: you are never more than 145 miles from a McDonald's, anywhere in the continental United States.

The best beer cozies available -- link also contains reports of science experiments concerning flammable jell-o shots and an NSFW inquiry about what happens when you wear 625 condoms at once.  Seriously, you know you can't resist this one.

Pac-Man: The Movie.  Or, if you prefer, a whole bunch of movies fraught with anxiety about female sexuality.

Top Ten Worst Bible Stories

It’s time for Bible stories. And they’re awful. In fact, they’re so bad I feel compelled to put them below a jump so that squeamish Readers can avoid them. Disclaimers first, and then the blood.  So you can skip the post if you know you're going to be offended.  But I hope you do read it.

More After The Jump -->

Political Growth

In politics, "growth" is used by some to describe what others would characterize as an "ideological transformation" that takes place over time rather than immediately.  Question:  was President Obama's speech accepting the Nobel Peace Prize, which he used to justify sending 30,000 additional troops to an ongoing war in Afghanistan, irony or growth?

The Quartering Test

A few days ago, I wondered about whether our military activities in Asia were "war" or something else.  Then at about four in the morning I awoke after a flash of the kind of thinking that only comes with sleep,* a test occured to me.  You're in your house, minding your own business, when *knock!* *knock!* *knock!* on your door are two corporals in the United States Army, with gear kits and weapons.  One of them reads awkwardly from a piece of paper:

Good morning sir or madam we are from the Army.  Due to the war effort extra military personnel such as ourselves are being stationed at the bases nearby and there are insufficient housing facilities on base.  Therefore civilians such as yourself have been ordered to quarter two troops each and the President has authorized the local base commanders to select homes to provide room and board for these personnel.  Your home has been selected and you will be compensated at the rate established by law.  Here are the authorization orders for you to inspect in which my commander has selected your home as a supplemental military housing facility.

The young corporal, obviously embarrassed, presents you with a document signed by a one-star general, containing a reference to some recent Executive Order.  It all has an official look to it.  So your choices are to:

1. Let the soldiers in to your house, show them where the extra towels are, and make a large batch of tomato soup for them for dinner, or
2. Tell them to go away, because this is your house, damnit, and finding room and board for soldiers awaiting deployment is the military's burden and not yours.

Of course, the soldiers tell you you have no choice, and you sue the government to keep the soldiers out of your home.  Do you win?  The Third Amendment to the U.S. Constitution reads as follows:

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

If we're at war, you're stuck with option 1 and presenting the base commander with a bill for the rent after the fact.  So -- if this happened to you, on December 9, 2009, would you have to admit the soldiers?  My sense of the matter is no.  Even if we assume prior Congressional and Presidential authorization for this sort of thing (which does not exist in the real world) the "state of war" in which our nation is in is not of such a nature that this sort of thing is a reasonable exercise of governmental power.  An on-base housing shortage cannot legally be addressed this way.  Ergo, we are not in a "time of war" for Third Amendment purposes.

I don't have any legal authority for that.  I don't know that any exists.  To my knowledge, Congress has never, in the two and a quarter centuries since the Revolutionary War came to an end, even entertained the idea of quartering troops in private residences and no President would be foolish enough to issue such a politically unpopular order absent truly awful circumstances like Red Dawn, where enemy troops actually in possession of territory within the lower 48 states -- in which case the question whether we were "at war" or not would be too obvious to bother addressing.

So are we in a state of war or not?  Absent a formal declaration of war by Congress, one way we can tell is if it seems reasonable to quarter soldiers in private residences. It would obviously be unreasonable in today's circumstances, so that suggests we are not in a state of war as that term is defined by the Constitution.



* It's true, I actually do dream about this stuff.

Good News From Tata

It ought not to be surprising that the best industrial ideas are coming from abroad -- and like the best industrial ideas that made America great, they are focused on everyday needs and with a keen eye towards affordability.  This single invention, if properly distributed, could both make its manufacturer oodles of money and do more to improve the lives of ordinary people than anything else in the last fifty years.  And that is why I put my faith in capitalism.

The War On The War On Christmas Strikes At Some Old Stomping Grounds

Locals pronounce the name Maryville, a Tennessee city very near The Estate At Louisville and an exurb of Knoxville,* "Muhrr-vull."  The big news:  a local citizen was concerned that the city's annual holiday celebration, which included a reading of several chapters from the Gospel of Luke, violated principles of separation of church and state.

INTERLUDE:  Since I tiresomely draw this protest every time I use that phrase, here it is AGAIN:  it is true that the Constitution does not use the exact words "separation of church and state."  Neither does it use the word "democracy" or any variant thereof.  The absence of that word doesn't mean the Constitution isn't about democracy. Of course it is.  When you read the document intending to understand it, that's not a big leap to make because the concept is readily apparent.  Same thing for reading the First Amendment and concluding that the Framers wanted to separate church and state.  So yes, it's in there, and no, there aren't explicit words to that effect.  You have to read, interpret, and comprehend and I'm not going to do that work for you here.  We now return to your regularly scheduled discussion of the War on the War on Christmas.

So in response, the city officials asked the city attorney, who said, "Nope, if you do a sectarian religious activity at a state-sanctioned event, you're violating the Constitution."  (This, by the way, is a correct statement of law.)  Therefore, the City of Muhrrvull cancelled the Bible reading portion of its annual lighting of the "Holiday" tree.  I have to put "Holiday" in quotes because, come on, everyone knows what "holiday" we're talking about.

Therefore, a brave soul took it unto himself to do the annual reading from the Gospel of Luke as a private citizen, and about 20 local citizens gathered, listened, and applauded when he was done.  Perhaps more interesting is the headnote appearing before the version of the story that I did not see when I first read the story yesterday:

Editor's note: Samuel David Duck is an employee of the E.W. Scripps Co. who works in the News Sentinel building, a fact that was unknown to the freelance writer of the story. Duck also is a candidate for governor running on a "One Nation Under God" platform.

So we're not exactly dealing with your run-of-the-mill Christian here -- we're dealing with both a newspaper employee and a guy who is running as a minor candidate for Governor.  A guy who has an axe to grind and an incentive to make waves.  Which makes me take his opening statement to the Knoxnews with a handful of salt:  Mr. Duck said it was "terrifying to stand and go against the courts" and read the Bible in a public park following the tree-lighting ceremony.

Well, it shouldn't have been.  Mr. Duck violated no law.  He did what he did as a private citizen and, now that I know he's running for Governor under a "One Nation Under God" platform, possibly as an act of political speech.  A private citizen can read the Bible out loud in a park if he wants to.  No law prohibits that and in fact the First Amendment protects it.  Mr. Duck was perfectly within his rights to do what he did and I, for one, would be quick to argue in his defense if some idiotic governmental official tried to stop him.

The important distinction is that Mr. Duck did not disrupt the non-religious, officially-sponsored parts of the ceremony.  The City of Muhrrvull can have holiday tree-lighting ceremonies all it wants to, as long as the Baby Jeebus isn't mentioned as part of the government-sponsored activities.  In fact, I don't think that the City Mayor would have been out of line to say at the end of the secular ceremonies, "I know there are a lot of Christians here and there will be a private Bible reading over by the Veteran's Memorial in ten minutes for those who wish to participate."  I draw the line at the Bible reading being part of the official proceedings.

This atheist is quick to point out that Mr. Duck is to be celebrated for his exercise of the free speech and free exercise rights of all American citizens. And this lawyer is also quick to praise the City of Maryville, Tennessee, for respecting the Constitution.

* I can't write the words "exurb of Knoxville" without cracking a grin. Knoxville isn't big enough to have suburbs, much less exurbs.

News Flash

Hey, New York Times!  I don't think you got the memo from back in, what was it, 1997.  Here it is again:  Video games are not just toys for small children any more.  Video games are like any other kind of entertainment media -- they are created for and marketed to varying and particular demographics and not all of them are little kids.

Just as there are "G" rated movies for kids and "R" rated movies for grownups, Grand Theft Auto: The Ballad Of Gay Tony is not going to be an appropriate stocking-stuffer for an eight-year-old girl.

Any questions?

A Quick Thought On Climategate

First, I am pretty ignorant about the issue of global warming.  I do not feel that I am particularly qualified to render intelligent or even useful insights on the issue.  While this is no impediment to other bloggers, and I am sure while that there are those who would argue that it is no impediment for me on other subjects, on this issue I'm conscious of the fact that I'm lost in the woods.

Second, the broader controversy seems to be not over whether global climate change of some kind is happening but rather whether it is caused by human activity.  I've no doubt that humans can affect their environment in dramatic and deletorious ways and the idea of government regulation to prevent or mitigate this happening is one which I embrace -- with all the enthusiasm that one would give to embracing an ugly cousin met for the first time at a family reunion.  As to whether this can happen on a global scale, with the effects that are being observed or at least alleged, see my first point.  At the same time, there seems to be little doubt that global climate change is happening.

Third and finally, the microconflict that has come up has to do with hacked e-mail that purportedly reveal that scientists at the University of East Anglia "fudged data" which suggested that global temperatures are actually falling and not rising.  The claim seems to be that if the "real" data were circulated, that would weaken political efforts to adopt environmental protection laws in any of a number of countries but particularly the USA and the UK.  There are counter-contentions that the e-mails indicate a different kind of political or scientific agenda than what they are alleged to be.  I haven't read the hacked e-mails and I think the ethics of doing so are at least subject to legitimate question -- this is, after all, stolen information.  But even if the claim is true on its face (and it certainly could be, I do not claim to know one way or the other) it would not be the first time a scientist was exposed as dishonest or as having a political agenda that overrode the truth, and that would also not change the veracity of either the claim that the global climate is changing to our disadvantage, or the claim that industrial activity is propelling that potentially harmful change.  It would only mean that the data and methodology underlying these scientists' work would merit even more searching scrutiny than they would otherwise have received.

All of that seems to have been said elsewhere and earlier.  I write today only to not be vulnerable to accusations of being part of the "deafening silence" on the issue.  But the fact is, the subject matter is really pretty much beyond me one way or the other.

Weekend Weirdness, Volume VIII

Straight from Tokyo to your next ballroom event: Atuendos Hechos con Globos!  (Related: Domo-kun on the runway.)

An interesting factoid about Chelsea Clinton's fiance.  So much for the myth of a classless society in America, as if anyone ever believed that anyway.

Geopolitics, graphically depicted.  And grievously incomplete.

And you thought you knew couples who had difficulty trying to conceive.  Had you ever given any thought to Superman and Lois Lane?  (Just how stoned was Larry Niven when he wrote this, anyway?)

Ah, June in the midwest.  Temperate!

Twilight -- ten years later.

The domain name is mingthemerciless.com/religion.  Content unrelated to title.

I know what a mermaid is -- half woman, half fish.  (Actually, half whale, as depicted in the Disney movie, didn't Ariel's tail move up and down instead of left to right?)  But what if the woman is really half squid?  Does that make her a calamariad?  And what if she's half-snake?  (Then she's a damn sexy Bollywood star.)  Or what if she's, you know, recently hatched from an egg?

And to end on a good note: The Wife assures me that all goats, whether young or old, rotund or thin, can be described as cute fat baby goats.

Draw For 2010

Seeds for the World Cup were drawn today.  As I did in 2006, I am rooting for the United States and Italy (the defending champions) pretty much equally; were the other country of my ancestry, Norway, in play, I'd root for them too, but Norway didn't qualify this year (of the Scandanavian teams, only Denmark is in the tournament).  Nothing against Germany, Ghana, or any of the other fine teams, but you've got to pick a horse or two and root for them.  That's how it works.

Both Italy and the United States got what seem like favorable draws today.  The United States drew into group C, along with Algeria, England, and Slovenia.  The Stars and Stripes' qualifying matches are as follows (all times Pacific):

11:30 a.m., June 12, against England, at Rustenburg.
7:00 a.m., June 18, against Slovenia, at Johannesburg.
6:00 a.m., June 23, against Algeria, at Pretoria.

Italy drew into the even easier group F, with New Zealand, Paraguay, and Slovakia.  The Azzuri will play as follows:

11:30 a.m., June 14, against Paraguay, at Cape Town.
7:00 a.m., June 20, against New Zealand, at Nelspruit.
7:00 a.m., June 24, on short rest against Slovakia, at Johannesburg.

During the qualifying first round, three points with a win, one point with a draw, no points for a loss.  The top two qualifiers from each group go on to the single-elimination second round.  So if a team wins two of its matches, it progresses. 

No match is easy, of course.  The U.S.-England match is probably too close to call but Slovenia and Algeria should produce out "W"s for the Stars and Stripes.  Slovenia was playing out of their heads when they beat Russia and Algeria but they can't score well compared with other national teams -- they got as far as they did on defense.  Algeria, interestingly, hasn't qualified for the World Cup at all since 1986 but I give them credit for a cool nickname:  Les Fennecs (the Desert Foxes).  As Yahoo! Sports forecasts it: "If the Americans finish second in their group, they likely would play Germany in the second round. If they finish first, they probably would advance to a meeting with Serbia or Ghana."  Gaa!  Germany in the second -- I'd much rather we had to face Ghana* or Serbia.  Sadly, though, my read of things is that England is a stronger team than United States, which would set us up for a first-round match against one of the strongest teams in the tournament.  It could be worse - Spain is favored to win it all.

In Group F, gli Azzuri have two teams that did well regionally but are sacrificial lambs at this stage; their only real challenge will be Paraguay -- I suspect los Albirroja (there's those strange World Cup pronouns again; the nickname refers to Paraguay's red-and-white striped jerseys) will be surprisingly tough.  If Italy wins it all, it will tie Brazil for most World Cup titles and be the only team to have won consecutive championships twice.  But it's a little bit premature to be anticipating that.

It looks to me like the "Group of Death" this tournament will be Group G, which consists of Brazil, Ivory Coast, Portugal, and the all-but-certain-to-go-nil-and-three North Korea. Hosts South Africa have a tough match in Group A as well, which includes powerhouses Mexico, Uruguay (watch them put up a good fight), and France. If Group A isn't the "Group of Death," then maybe we should call it the "Group of Grievous Injury."

There are always upsets in this sort of thing, but from this sample of teams and their drawings, the U.S., England, Italy, and Paraguay should all be the favorites to move on to the single-elimination round for El Cupo del Mundo.  Italy and the United States could not play one another until at least the semi-finals of the second round of play.  So unlike last time around, I will be unlikely to have a conflict of interest and if I do, it will mean that at least one of them will wind up playing for it all.

* Ain't none higher!  (And if you don't get that joke, you aren't intended to.)