Happy Memorial Day

I've said this for years on Memorial Day, but I believe that the best way we can honor our fallen is to not make any more of them.

Snowflakes and Safe Spaces

How many times have I read the same old op-ed about these ultra-liberal campuses that are "suppressing free speech" by not allowing alt-right nationalists (i.e. Nazis) speak on their campuses? I mean, if you've read anything by Bari Weiss, Brett Stephens, Megan McCardle, et al in the last four years, I'm sure you're familiar with the general outlines of the argument:

"Look at these little snowflake college kids that are so insecure in their own opinions and beliefs that they can't stand to hear opposing viewpoints. This threatens all of our liberty!"

The argument is true to a certain degree, but I note that it is never used to engage the broader suppressions of free speech that are going on right in front of us.

Well, TableTopJoe is here to help try to even things out! I give you that manliest of manly things, that would never ever be some little snowflake who needs a safe space, the National Football League.

NFL owners have unanimously approved a new national anthem policy that requires players to stand if they are on the field during the performance but gives them the option to remain in the locker room if they prefer, it was announced Wednesday.

So, to be clear, when a private liberal arts college refuses to host a white nationalist as a speaker, this is an intolerable erosion of our freedoms because all political statements apparently have value. However, when wealthy white football team owners decide that they are going to force their (largely black) football players to either make the "preferred" political statement or no statement at all, well that is just patriotism, y'see!

A few more points:

• The NFL is a private organization and is not bound by the First Amendment.
• That the NFL is not bound by the First Amendment does not mean that it is not bound by both common decency and the preferences of its customers (i.e. fans).
• Standing for the National Anthem is every bit as much of a political statement as kneeling for the National Anthem.
• By telling players they are allowed to make one political statement (STAND) and not another (kneel), the NFL has inserted itself into a political controversy.
• The NFL has indicated that protesting the unwarranted killing of unarmed black men in their players' communities is a sanctionable offense, whereas standing for the Anthem and making THAT political statement is A-OK.

The NFL and its fans: a bunch of delicate little snowflakes that need their safe spaces. Who knew?

Spirit of the Season

As a resident of the Home of the American Dream (i.e. Speedway, IN), I can't think of anything that better invokes the month of May. On a side note, wouldn't it be something if the Town and IMS could work together to have a huge sculpture of the Borg Warner Trophy erected in the middle of the roundabout at 16th/Crawfordsville/Main St.?

Happy May everyone!

Contracts of Adhesion

So, the U.S. Supreme Court decided a case today regarding mandatory arbitration clauses. Snooze......

The thing about enforcing these clauses, one after another, in supposedly "freely bargained contracts" is that such enforcement fails to account for and/or appreciate the substantial disparagement in bargaining power.

Just last year, the Supreme Court enforced a mandatory arbitration clause in a consumer contract, for telecommunications services I think. The thing about those contracts, though, is that consumers ultimately only have a limited number of choices (how many cell phone carriers are even available in Indy, maybe a half dozen?) and if the subject clauses are in every contract, it is inescapable.

What is to prevent restaurants from routinely noting on their menus (in 5-point font, to be sure) that all disputes of any kind have to be arbitrated, at the expense of the complainant, individually, and in Hong Kong? Nobody would even notice at first, because the disclaimer is so small on the menu. Then, the clause becomes standard on every restaurant menu. When restaurants have compelled you to sue them in a private venue, individually, on the other side of the world, have they not rendered you powerless to dispute anything?

In this latest case enforcing mandatory individual arbitration clauses, the Supreme Court has essentially written a blank check to employers to participate in egregious wage theft. What is to stop a McDonald's franchise from forcing its employees to sign lengthy contracts as a condition of employment that bar banding together to sue for wage theft? Once that McDonald's franchise has effectively prohibited its employees from banding together, it could then steal wages from them (via phony deductions, etc.) to the tune of more than $2,000/year; not until the franchise stole from an individual in an amount exceeding approximately $10,000 would it be financially feasible to hire an attorney for the arbitration. (Not for nothing, consider how this plays out with a doctor who makes 20X what the McDonald's employee makes. It's a lot easier to get to the point of financial viability when you make $250,000+/year as opposed to $25,000/year).

Well, I could go on and on about Justice Goosestepper Gorsuch, who wrote the majority opinion while sitting in his stolen seat, but I'm sure my thoughts on him and the theft of that seat from its rightful occupant, Merrick Garland, are well known.

Royal Wedding - Enough Already!

I will just say it: I do not care about what the British Royal Family does, whether that includes celebrating someone's birthday or having a wedding. I just don't give a damn. It doesn't affect me in any way, shape, or form.

I notice that the news has a seemingly "mandatory" discussion of the damn royal wedding nearly every day. I can't help but contrast coverage of the royal wedding with the scant coverage of the recent Supreme Court decision striking down a law known as PASPA.

In a nutshell, PASPA is (was) the federal law that made gambling on sports illegal in every state except Nevada. Note that you can presently play slot machines at Indiana Grand but you can't place a bet on the Colts' game. I suspect that is about to change.

I also suspect that the sports book won't just stop with professional sports. How long until we have a sports book on the Butler or IU game? How about the Speedway H.S. baseball game? Ask yourself how susceptible a high school or college kid would be to a point shaving scheme?

After considering the consequences of the royal wedding and the recent Supreme Court decision, ask yourself which one will affect your life. What do you think? Do you get the feeling that your attention is being diverted?

Please Read This

I have nothing to add to this story; I simply ask that anyone who is on this blog click through to read it.

College and Costs

A reader (anonymously) pointed me to this cartoon from the Indy Star's resident editorial cartoonist, ultra right-wing Gary Varvel:

I think it is an interesting commentary on the state of higher education. A former educator myself, I believe that this notion that everyone should go to college is utterly misguided; we have bought into the Lake Wobegon fallacy: that everyone can be above average.

Perhaps I yearn for a time that never was when I say that college should be (a) hard to get into, and (b) easy to afford. Presently, it seems like it is the opposite. There is a for-profit college on every corner telling holders of GEDs who struggled to pass science classes that they can work "in the medical field." What they fail to disclose is that these for-profit colleges' graduates' role "in the medical field" is near the bottom rung . . . they will have jobs making perhaps $35,000/year, if they're lucky, while saddled with $65,000 in student loan debt.

I don't have a proper solution for this problem. My preferred solution would be that employers return to the days when they bore the load for training their own employees. You run a medical office and need someone to code your bills to submit to insurance? Find someone and train him/her. You run a factory and need a machinist? Have an apprenticeship program.

Of course, like so many things, I believe that when the public policy response to a problem is "people need to make different choices, even if those choices are against the individuals' self interest," then there is no public response to the problem. Stated another way, if the solution is "people need to act against their own self interest," then we need to find a new solution. What that solution is, I haven't figured out.

The Webs we Weave

I didn't realize that Mike Pence still resides in the governor's mansion on Meridian St.

Vice President Mike Pence is still claiming the Indiana Governor’s Residence as his home, and he used that address to vote absentee in Indiana’s primary election.

Last time we checked, the Republican moved to Washington, D.C., when he became vice president and no longer lives at the Governor’s Residence. (Unless Gov. Eric Holcomb has given him use of a spare bedroom or maybe the guest house.)

OK. If you say so Mr. Vice President. Although this is a rather interesting tidbit:

Pence chaired President Donald Trump’s Presidential Advisory Commission on Election Integrity. The commission, which was established to “study the registration and voting processes in federal elections”

 Huh. So, Vice President Pence, is election integrity OK now?

On Healthcare and Morality

I have heard and read a lot of discussion about Alfie Evans and Charlie Gard. I am a father, and I certainly understand people's revulsion to the notion that the government will tell someone that he has to let his son die. I too fight the gag reflex when hearing about this.

However, most of the things I've read/heard about these two tragic cases are pushed by opportunistic hucksters who use this tragedy to push their own views about "the magic of the free market" as applied to medicine.

My simple question to all concerned is this:

Is it better or worse, morally, for a patient to be denied care by a government because that care is deemed ineffective or not worth the money, OR for the patient to be denied care by the private sector because that patient doesn't have the money to afford it?

Stated another way, if a patient dies from a treatable and curable malady because he can't afford the treatment, is that an avoidable tragedy or a glorious exercise in free market economics?

I suppose where you sit in life likely determines where you stand on this issue.

Classy

This:

On Wednesday, Arizona Sen. John McCain announced his opposition to President Donald Trump’s nominee to run the CIA, Gina Haspel.

On Thursday, White House special assistant Kelly Sadler reportedly reacted by saying of McCain, who is fighting brain cancer, “It doesn’t matter, he’s dying anyway.”

And this:

 In the annals of bad TV takes, it’s going to be hard to beat the one offered by a Fox Business guest earlier today: Torture works, and he knows tortures works because it made John McCain cough up sensitive information during the years he spent as a prisoner of war in Vietnam.

“It worked on John [McCain],” retired Air Force Lt. Gen. Thomas McInerney said during a Thursday appearance on the Fox Business Network. “That’s why they call him ‘Songbird John.’” 

McInerney, an avid supporter of President Donald Trump, mentioned McCain in a segment about CIA director nominee Gina Haspel. Here’s why: On Wednesday, the senator vowed to vote against her nomination and recommended his colleagues do the same.

Look, I didn't vote for John McCain in 2008; I thought his grandstanding attempt to impeach Bill Clinton was shameful. However, Sen. McCain showed his true colors in the face of torture . . . twice.

First, the North Vietnamese offered to release John McCain before his fellow POWs so that they could get a nice propaganda piece ("SEE! The capitalist Americans come for the sons of admirals first!"). John McCain, to his undying credit, told them to go to hell and denied them their little victory, even though it resulted in his continued imprisonment.

Second, in the early 00s, John McCain stood up against the Bush Administration on the issue of torture enhanced interrogation. Anyone who remembers that time knows that any disagreement with the way the Cheney Bush Administration chose to prosecute the War on Terror (TM) was quickly subjected to accusations of "not supporting the troops" or "siding with the terrorists." John McCain took a big risk, and I applaud him for it.

Contrarily, Donald Trump's "Vietnam" experience involved not picking up too many STDs while screwing as many random women as possible, marriage (for either party) be damned.

A Few Legal Notes

A few interesting stories today.

First:

An Indianapolis doctor awarded $1.025 million in defamation damages against CVS after a federal jury trial lost it all Thursday when the 7^th Circuit Court of Appeals reversed the decision.

The judgment for Dr. Anthony Mimms was vacated by the Chicago appellate panel that found District Court Judge Tanya Walton Pratt erred in allowing three allegedly defamatory comments regarding Mimms to be tried to a jury. The 7^th Circuit also concluded that CVS was entitled to a new trial on the fourth and final allegedly defamatory statement.

The award for Mimms in January 2017 came after CVS workers allegedly told patients that his prescriptions were no longer being filled for various reasons. Mimms’ patients said they were refused prescriptions at Greenfield, McCordsville, and Rushville CVS stores after pharmacists and technicians at those stores said he was running a pill mill; he had gone to jail; he had been or would be arrested; and that he was under investigation by the U.S. Drug Enforcement Agency.

The 7th Circuit said the first three of those remarks never should have been tried to the jury. CVS was entitled to summary judgment as a matter of law on those comments, because Mimms provided no evidence they were made with actual malice, the standard for defamation under Indiana law.

Heaven forbid I say something critical about Dr. Mimms . . . I don't have $1m sitting around to pay him in case his "fee-fees" get hurt. Also, how the hell does a stray comment from someone cause $1m in damages? Anyway.

There's also this today:

A medical malpractice suit filed against a doctor who reported his suspicions of child abuse to the Department of Child Services will proceed after the Indiana Supreme Court ruled Thursday that the state’s anti-SLAPP laws do not apply to this case.
Justices reversed a Marion Superior Court’s dismissal of the case under state laws against Strategic Lawsuits Against Public Participation. Indiana’s high court found the anti-SLAPP laws enacted in 1998 as a shield against lawsuits targeting speech protected under the First Amendment provide no defense to Dr. Cortney Demetris in this case.
Demetris was the attending physician when Stacey and Derek VanWinkle’s daughter A.V. was admitted for observation. Demetris concluded A.V. suffered from medical child abuse — formerly known as Munchausen syndrome by proxy — in which a child receives unnecessary and potentially risky treatment due to false reporting by a parent or caregiver.

Demetris reported his suspicions to the Department of Child Services, which removed the VanWinkles’ children from their home and substantiated allegations of abuse, which were later reversed by the trial court. The VanWinkles then filed a malpractice claim against Demetris, which was dismissed by the trial court — a decision that was reversed by the Indiana Court of Appeals. 

Do we really have a society that operates in such bad faith? Sadly, the answer is "Yes. Yes we do."

I could go on with stories about stupid lawsuits, but perhaps two is enough for one day.

On Golf Carts

A discussion erupted on Next Door regarding how people intend to get their guests to IMS on Race Day. Someone asked whether golf carts are allowed in Speedway, and the consensus appeared to be that they are not. I have reviewed the municipal code and see no reason to disagree with the consensus.

Of course, I can't help but question why it is that golf carts are outlawed in Speedway. I did a bit of research on golf carts a few years ago for a lawsuit I was defending, and I came across the following information: Indiana Code § 9-21-8-57 provides that "A golf cart or off-road vehicle may not be operated on a highway except in accordance with: (1) an ordinance adopted under IC 9-21-1-3(a)(14) and IC 9-21-1-3.3(a) authorizing the operation of a golf cart or an off-road vehicle on the highway; or (2) IC 14-16-1-20 authorizing an off-road vehicle to operate on a highway."

So, the fact that golf carts can't be driven in Speedway is a function of local choice. My question is, does this choice reflect the will of the community? I wonder whether this has ever been considered.

Of course, the Next Door forum focused on Race Day. Maybe Speedway would be wise to allow golf carts only on Race Day; maybe Speedway would be wise to allow golf carts on any day except Race Day. 

Frankly, I don't know.

What I do know, however, is that Speedway has the right to pass an ordinance allowing residents to travel around on golf carts. The fact that it has not reflects on the priorities of our elected town council. My question is whether that reflects the priorities of the town council's constituents (i.e. the residents of Speedway). I, for one, would fully support an ordinance allowing residents to use golf carts on public streets within the town, particularly if such ordinances only allowed for golf carts to traverse, but not drive on, the main roads such as Lynhurst, Crawfordsville, etc. 

Anyway, those are my thoughts on golf carts. I don't own one, but I probably would buy one if I had the opportunity to drive it to my kids' local events, high school events, main street events, etc. Taking people to the race? I guess . . . but it's not even close to my primary concern.

A Single Data Point

Let me preface this by saying that I do not believe that presidents are singularly responsible for economic growth during their administrations.

I'll repeat that: I do not believe that presidents are singularly responsible for economic growth during their administrations.

However, some people/organizations disagree with me. To those who tend to believe that a president is singularly responsible for economic growth/performance, I offer this:

This fact tells me nothing about either Obama or Trump. Perhaps it says something to those who believe that presidents singularly control the economy (see link above). Of course, as we know, facts have a well-known liberal bias so this is all probably just "fake news."

Remember the Clerk?

Remember the Clerk in Kentucky who refused to issue marriage license to same-sex couples due to her sincere religious conviction that same-sex marriage was an abomination? That happened in Indiana as well:

A southern Indiana deputy clerk who was fired after she refused to issue a marriage license to a same-sex couple lost her civil-rights lawsuit against the county clerk. Her suit claimed religious discrimination on the basis of her avowed Christian belief that same-sex marriage is “against God’s law,” which is “above legal law.”

Harrison County deputy clerk Linda G. Summers refused to issue a marriage license to a same-sex couple that came to the courthouse in Corydon on Dec. 8, 2014. 

Now, I know that Indiana's hired Jackass-in-Chief was not yet in office at the time, so I can only wonder what his thoughts were on this refusal to perform a public obligation for which one is paid and accepted employment due to religious belief. 

I bring that up in light of this recent headline. Some notable quotes:

Indiana Attorney General Curtis Hill is hitting back at three county prosecutors who have declined to defend the state in its most recent abortion-related lawsuit, saying the prosecutors have no authority to determine how the case proceeds.

Hill released a statement Thursday morning criticizing the Marion, Monroe and Lake County prosecutors’ Wednesday announcement that they would not defend the state in a complaint filed against Senate Enrolled Act 340, Planned Parenthood of Indiana and Kentucky, Inc. v. Commissioner, Indiana State Dept. of Health, et al., 1:18-cv-1219. The law, set to take effect July 1, would require abortion providers such as PPINK to report “all abortion complications” and to submit to annual inspections, a requirement not placed on other outpatient settings or hospitals.

* * * * * * * * *

Marion County Prosecutor Terry Curry said the state’s unsuccessful defense of these laws has cost the state nearly $300,000 in legal fees pad to the American Civil Liberties Union of Indiana and has diverted other resources away from prosecutors’ offices. Curry, Chris Gaal of Monroe County and Bernard Carter of Lake County are named as defendants in the SEA 340 complaint because PPINK has clinics in their counties.The prosecutors are Democrats. Hill is a Republican.

“We are tired of being drawn into the annual act of legislative futility to pass abortion-related bills, which inevitably results in lawsuits at taxpayer expense,” Curry said in a Wednesday statement. 

So, to be clear, the Indiana State Legislature has repeatedly passed laws that any first-year law student would rightly conclude are unconstitutional. Then, after the State of Indiana attempts to enforce those laws, the ACLU sues the State of Indiana and wins. Following the win, the ACLU is then entitled to its attorney fees. Indianapolis, Bloomington, and Lake Co. have determined that they do not believe they will prevail in the present suit and do not want to expose themselves to liability for the ACLU's attorney fees. 

Indiana's Republican Attorney General Curtis Hill (who no doubt casts himself as "fiscally conservative" and a "constitutional conservative") demands that these communities shoulder the burden of these needlessly provoked culture wars. 

Awesome.

Bootstraps and Ladders

I hear clueless well-intentioned members of my parents' generation (Baby Boomers) often lamenting that "the kids these days" want everything "given to them" and they're "afraid of hard work." While I point out to them that in the early 1980s, my father had one mortgage payment (our family home), most people of my generation carry three (home, health insurance, student loan). While I fully recognize that members of my parents' generation paid for health insurance through the 1980s and 1990s, the cost of same at that time was comparable to county tax withholdings, whereas it is now comparable to a mortgage payment.

In light of that, I offer this quote from a recent piece in The Atlantic:

 Drawing almost no attention, the nation crossed an ominous milestone last year that threatens more economic polarization and social division: For the first time, public colleges and universities in most states received most of their revenue from tuition rather than government appropriations.

This historic shift away from tax dollars funding the bulk of public higher education comes precisely as the nation’s youth population is crossing a succession of milestones to become more racially diverse than ever. As statisticians would say, it’s an open question whether these twin trends represent an example of causation or just correlation. But whether resources are shrinking because diversity is growing, or the two trends are proceeding independently, their convergence is still a dangerous development—not only for higher education, but also for the nation’s economic future.

I used to have a coach who would give us a similar speech before big games, the theme of which is "this is the time to define what kind of competitor you are." Similarly, I worked for a litigator who told me before a big trial that "now is the time to define what kind of a lawyer you are."

Well, with respect to funding for higher education, "this is the time for us to decide what kind of a country we are." Are we a country that believes that education is worth spending money on, or are we the kind of country that treats education like any other consumer product, i.e. you can have it if you pay for it? Do we treat education as a public good or a private indulgence?

As for me, I intend to stay on the side of history that is willing to pay taxes for education for other people's kids. As for me, I saw my property tax bill and noted that I contribute somewhere in the $550-$600 for the entire year to Speedway Public Schools. This is less than I pay for health insurance for a month and I fully intend to give generously to Speedway Public Schools going forward. I believe that education is a public good. That someone I've never met is well educated has positive spin offs for me, whether that is in the form of higher tax receipts, innovation, or simply keeping that person away from a life of crime (that would eventually involve me providing room & board, i.e. state prison).

Anyone who has read this blog knows my feelings about public education, that I am a supporter. My question is, though, what is the argument against funding public education? Surely there are those who believe that we as a society should not do so. What is the line of reasoning for that?

Agreeing with "Conserva-Tibbs"

If you've never read Scott Tibbs' blog, you should . . . not because he is right about much (because he isn't right about much) but because it is healthy to read and understand the basis of opinions with which you disagree. Mr. Tibbs writes a post almost every day. Today, he made an excellent point:

 Yes, fathers should protect their daughters, but the goal should be for them to find a godly man to date and eventually marry. The father’s goal should be for her to find a man he would be delighted to have as a son-in-law. Fathers of sons should seek to raise a man who another man would be delighted to have as a son-in-law. We should focus on the ideal, not just on preventing the negative.

Refreshing and 100% "on the nose."

File Under "O" for "Obvious"

I read this in the Indiana Lawyer today. A few key takeaways:

While an overwhelming majority of attorneys surveyed by the American Bar Association support pro bono work as a part of the legal profession, less than half indicated they were going to provide such help in 2017.

Perhaps it's because "pro bono" means "without pay" and most lawyers are struggling to make ends meet?

In the survey, 80.6 percent of the attorneys indicated they believe pro bono services are either somewhat or very important. But only 45 percent said they were either likely or very likely to offer free legal representation, and another 23 percent noted they were either unlikely or very unlikely to participate in pro bono work.

Attorneys were motivated to do pro bono by their desire to help people in need, ethical obligations, and professional duties. They were hindered from providing the service by lack of time, outside commitments to family and other personal obligations, and lack of experience in the practice areas needed by the pro bono clients. 

I wholeheartedly agree. In the universe of things I would rather do than work for free, I can find a lot of things . . . hang out with my family, go to the track, mow my yard, help my elderly neighbor clean up her front walk, etc. Additionally, if someone needs help with a divorce or a criminal charge, I'm not the guy. I am a civil litigator. If you require my skills, I can help. That I am a lawyer does not mean that I know everything about every law.

Further, if I handle someone's divorce pro bono and I screw up, guess who's on the hook for malpractice?

I offer free legal advice and help when I can; I just believe that all of the discussion about the merits of pro bono work tend to leave aside the challenges to it. There is a reason that most people don't do their jobs for free in their spare time. Lawyers are like most people. They have reasons as well.