Five Bullets

          Hypotheticals are the life blood of law school. Students read a case and seek out its “holding,” the reasons underlying the court’s decision. The professor then posits modified facts and asks if the reasoning still applies or whether the decision should now be different. Both as a law student and a professor in a law school I played around with hypotheticals, but while sometimes intellectually intriguing, these were bloodless exercises. Grades might have been affected, but since the litigants were made up, money, property, and freedom were not at stake. However, on occasion in my public defender work what could have been a law school hypothetical appeared, and the resolution of the legal game determined whether someone went to prison.

          Hearsay was the issue on one of those occasions. I will spare you an extensive discussion of hearsay, but its definition is one that almost all students memorize. While it is easy to spout those definitional words, the concept is a difficult one. I would throw hypothetical after hypothetical at the student hoping to sharpen their thinking about what was and was not hearsay. This is an important distinction because the rules of evidence say that juries should not hear hearsay, even though there are dozens of exceptions that permit some hearsay to be heard. But the distinction between hearsay and non-hearsay remains important because if the evidence is not hearsay, the hearsay rule allows it. Thus, I used lots of hypotheticals to teach the hearsay concept, but it often seemed beyond the intellectual abilities of many of my students at a third-tier law school.

There came a time that in addition to the classroom teaching, I was doing an appeal for a public defender. I read the trial transcript, and a hearsay issue was at stake, one that, to my surprise and satisfaction, was almost the same as a stock hypothetical I had used in my evidence classes. I wrote a brief explaining that the disputed evidence was not hearsay and that, therefore, the defendant should have been allowed to have the jury hear it, and a retrial should be ordered.

          The prosecutor’s reply brief was written by a young associate of a prestigious law firm doing what I assumed was mandatory pro bono work. Her high-paying day job signaled that she had gone to a much more highly ranked law school then the one in which I taught. Even so, it was clear that she, too, failed to understand hearsay.

          I was confident when the case came for argument before an array of appellate judges. The issue was not one of interpretation or nuance. This was a classic case of non-hearsay; it should have been admitted. Its exclusion in the trial court caused an unfair trial. The conviction had to be reversed.

          After my introductory comments at the lectern, I firmly said, “This was not hearsay. It should have been admitted. The defendant was denied a fair trial.” And then I was taken aback. The presiding justice said, somewhat sheepishly I thought, “Explain to me again why this isn’t hearsay.” And I thought but did not say. “Oh, shit. She doesn’t understand hearsay either.” This, however, allowed me–for my only time in an appellate argument–to haul out some of my trove of law school hypotheticals, which I hoped I was doing in a non-condescending manner, for there is nothing worse for your case than to appear to be condescending to a judge. I don’t know that I was convincing. It may have simply been that the judge’s clerk had an adequate grasp of the hearsay concept and later educated the judge, but the court’s decision—correctly—ruled for my client, and he was released from prison. But I took credit believing that sometimes, law-school hypotheticals can have real-world consequences.

          An aside: I learned something about handling judges early in my career. My client’s son was charged with a rape. His father, on the advice of a lawyer, had offered the woman money in exchange for her dropping the charges. The lawyer, not the sharpest legal mind, had said that it was just like settling a civil case. The lawyer and the father were arrested for attempted bribery of a witness. The lawyer was being represented by a well-known, highly-regarded criminal defense attorney. He and I both had moved to dismiss charges and submitted briefs with several arguments supporting our position. The judge ridiculed our worked and ticked off how our contentions were unpersuasive. However, he then went on to say that we had ignored an argument, which he articulated. I started to interrupt the judge, planning to say, “But I said exactly that in my brief.” Before I could get started, my distinguished co-counsel grabbed my arm to make me stop and whispered to me, “If he thinks that he thought of it, we will win.” I stopped. We won.

          I have been thinking about that case and another after I recently wrote about a law-school hypothetical on this blog when I posted about the Texas abortion law. (See the three posts of “Let’s Expand the Texas Abortion Law: Search Results for “”Texas abortion”” – AJ’s Dad (ajsdad.blog)) There I explained that a person who drove the robber to the bank was only guilty if the driver knew what the robber had planned. This had me thinking about the five-bullets case where I represented a young man charged with taking part in an attempted murder.

(concluded October 4)

What’s In a Headline

MURDER HEADLINES.

“Murders Spiked in 2020 in Cities Across the United States.” Thus read yesterday’s headline from a news source I look at daily. Often, I read no more than the headline believing it gives me the gist of the news. This time I read the story and realized that the headline could have been written in ways that might have put a different spin on the recently released FBI crime statistics. For example, the headline might also have said, “Major Crimes Fall in 2020.” While the original headline is true, so is the alternative, for the story reported, “Major crimes overall dropped about 5 percent.” But surely while both may be accurate, they likely give differing impressions of crime in the country.

          While we are much more likely to be a victim of a crime other than homicide, murders grab our attention and are likely to make it into the headlines. Nevertheless, variations on the headline were possible. Indeed, the same news source a week earlier reported on preliminary FBI data and had a story similar to the one from yesterday. Its headline: “Murder Rose by Almost 30% in 2020. It’s Rising at a Slower Rate in 2021.” Does this headline from a week ago give you a different impression from the one yesterday? The earlier one also appears to be true. This summer’s spike in homicides was lower than that from the summer of 2020. (Murders rise in the summer each year.) The story reported: “The higher murder rate has continued into 2021, although the pace has slowed as the year progressed.” The earlier headline seems to be delivering some good, or at least mitigating, news. Of course, they could have chosen a different headline, still accurate but more dire: “Murder Rose by Almost 30% in 2020 and Continues to Climb.”

          The headline yesterday stressed cities, but there may have been a different reaction had the headline read: “Murder Rate Jumped in 2020. Widespread Increase Was Not Limited to Major Cities.” This also would have been accurate. Although the story said that some cities had had a record number of murders, it also reported that “killings were more widespread, occurring in all regions of the United States and not limited to major cities.” Another accurate headline: “Murder Rate Spiked in 2020 but Major Cities Account for Smaller Share of Murders in U.S.” The story gave this striking statistic: “In 1990, New York City and Los Angeles accounted for 13.8 percent of the country’s homicides, compared with 3.8 percent in 2020.” The story’s actual headline made this fact a surprise. Would alternative headlines have given a different impression of murders in large cities?

          A different headline might have assuaged fear: “Murders Increased in 2020. Still Well Below Historical Highs.” The article stated that some cities had hit record highs, but the national rates are “still well below the record set during the violence of the early 1990s” remaining about one-third lower than the earlier highs. Three decades ago there were nearly ten murders for every 100,000 people while last year it was slightly over six per100,000. Perhaps the headline might have said, “Lower Murder Rates from Previous Highs Made Big Cities Safer.” The story reported that while 2020 murders in New York City increased to 500 from 319 the previous year, they were twenty-two percent of what they were in 1990 when 2,200 were recorded. Murders in Los Angeles increased from 258 in 2019 to 351 last year but were at their highest—1010—in 1980. And even though Chicago had an increase last year to 771, that was below the 939 murders in 1992.

          Instead of stressing cities in the headline, the editors could have focused on a different part of the data: “Murder Rate Jumped in 2020 Led by Increased Firearm Use.” This, too, would have been accurate as the story reported that 77% of the murders were by firearms which was up from 67% a decade ago.

          The headline might have been more political by saying: “Murder Rate Soared under Trump.” The earlier article contained a graph of the murder rates from the 1960s. The story could have stressed that the rates were highest in the 1970s when Republicans Nixon and Ford were President, dropped a bit, but spiked again under Republicans Reagan and Bush the Elder. The article could also have said murder rates plummeted in the 1990s under Democratic President Clinton, leveled off under W, and then modestly declined when Obama was in office.

          But the most striking headline might have been: “For 32nd Straight Year, Louisiana Had Highest Murder Rate in 2020.”

Snippets

Little bear/jumped on the chair/and blinked./A good song/and not too long. . . .

A company says that it will clone a wooly mammoth from preserved DNA. I have questions. I have heard of wooly mammoths, but were there cottony or silky ones? And would a hairless mammoth be hypoallergenic and make a good pet for a toddler?

The spouse asked me when I wanted to leave to be on time for our restaurant reservation. I answered. She immediately said she wanted to go five minutes earlier, and it was clear that we were going at her preferred time. As I started to ask why she asked me what time I wanted to go, I, of course, knew the answer. If by happenstance I had picked the time when she wanted to go—the time when we would go–she could look like she was merely acquiescing to my wishes. I love this clever woman.

“To tell a woman what she may not do is to tell her what she can.” Spanish proverb.

I do not have any biological children. (I know, I am supposed to jokingly add, not that I know of.) But the NBP is my child, an adopted one. Of course, sometimes I have wondered what a child with my genes would have been like, but I know that my genes are a mixture of DNA descended from many others, and I had nothing to do with the genetic material I have. When I was in the hospital for a heart procedure, something that does tend to make you think about your death, I talked with the NBP. I said that my genes were not in him, but I hoped that some part of me would live on in him after I did die. That was more important than the genes, which I did not control. If part of me survived in him, it would be because of the time we had spent together; things we had taught each other; connections we had. That seemed to me, and still seems, more important than the passage of genetic material.

Peacocks were part of my youth. I grew up a half-dozen blocks from a small-town zoo, which contained peacocks, and it was always impressive when I saw one in the feather display. But even when at home, I could hear the call of a peacock, which from a distance sounded mysterious and sort of romantic. My view of that call changed when I spent a season on Longboat Key, the barrier island off the west coast of Florida. In the funky part where I stayed–a collection of old (for Florida), small cottages–peacocks roamed freely. I sometimes had to brake for them, and I would watch them from the porch where I read. I was used to their calls and did not think much about them at first. That changed. The cry came not just during the day, but also at night. One peacock seemed to have an affinity for my bedroom window’s air conditioner and would perch there. When it would emit its cry at 2 a.m., which it did frequently, I would bolt awake, and its reiteration would stop me from falling back asleep. Too often I would stumble outside to chase it and its companions away. I started to have dreams of hunting the birds. Romance turned to vengeance.

“We’re born arsonists and we die firemen.” Andrea Camilleri, Treasure Hunt.

Let’s Expand the Texas Abortion Law (concluded)

At the turn of the nineteenth century, English philosopher Jeremy Bentham proposed a design for a circular prison with the cells on the perimeter and a guard at the center. The guard could observe the prisoners, but the inmates because of blinds and other contrivances could not see the guard. Of course, the guard could only watch one a few prisoners at a time, but the inmates would not know when they were being observed. Bentham concluded that the risk of observation, as he put it, “a sort of invisible omnipresence,” would cause the prisoners to regulate their behavior to an appropriate standard, which primarily meant work.

In the 1970s, the French philosopher Michel Foucault seized what Bentham called a panopticon as a metaphor for social control using observation to promote docility and “appropriate” behavior. Without using the panopticon term, George Orwell in Nineteen Eighty-Four captured the power, and the terror, of the risk of being watched although his book had the surveillance via telescreens: “There was of course no way of knowing whether you were being watched. . . . You had to live in the assumption that every sound you made was overheard, and, except in darkness, every movement scrutinized.” And watched or not, behavior was controlled by the potential of observation.

The Texas abortion law does something similar. Since anyone in the world may sue to enforce the law, anyone with any contact with an abortion provider will feel as if someone is observing the interaction and seeing an opportunity, whether justified or not, to sue for damages. Since every contact with an abortion provider leads to the possibility of legal liability, the way to avoid that risk is, of course, to cut off contacts with abortion clinics. The law thus will control behavior even without enforcement. And even if the law is overturned someday, the panopticon effect of the statute will affect reproductive rights and choices until then with consequences that will go on even longer.

The Fetal Heartbeat Act is unconstitutional because it forbids abortions that Roe v. Wade and other Supreme Court precedents allow. The law is Orwellian, however, because of its vigilante enforcement and because many people cannot know when or whether they are violating the statute. Conservatives, at least some Texas ones, seem comfortable with these frightening SB 8 procedures, and perhaps will try to extend them to other arenas. Non-conservatives should be thinking along the same paths. Might the Texas law provide a template for other initiatives that non-conservatives might favor?

Gun violence might be an appropriate target. After all, gun violence harms not just those who are wounded or killed but society generally by causing widespread fear affecting the behavior of many. Perhaps we could start out with a narrow proposal. A state might create a private, civil cause of action  gainst anyone who shoots another with an assault rifle unless the shooter shows that the victim was committing a dangerous crime endangering others at the time of the shooting. As with the Texas law, government entities and officials would be forbidden from enforcing the new cause of action, but anyone else could claim under it seeking a minimum of $10,000. In addition, similar damages could be sought from anyone who aided or abetted the shooter without any need to show that the aider or abettor knew or should have known that the shooter would violate this law. As with the abortion law, the extent of aiding or abetting liability would not be immediately clear, but it could extend to those who sold the gun or the ammunition to the shooter. It might reach the manufacturer of the weapon or ammunition, and I am sure that creative attorneys would think of others to sue. 

What other problems do you see that could be addressed with a statute similar to the Texas abortion law?

Let’s Expand the Texas Abortion Law

The recently enacted Texas Abortion Law forbids abortion after a fetal heartbeat is detected, but it forbids state officials from enforcing the law. Instead, any person can sue anyone who performs such a procedure and sue anyone who aids or abets the proscribed medical care. Liability for those who aid or abet is far reaching because the Fetal Heartbeat Act makes people liable “regardless of whether the person knew or should have known that the abortion would be performed or induced in violation” of the law.

Everyone who works in an abortion clinic potentially faces damages, from the receptionist to the janitor, even if they do not know that illegal abortions are performed. And that potential will no doubt close facilities. Would you work in such a clinic with the possibility of being subject to at least $10,000 damages for every performed procedure? (News reports have stated that each abortion after a fetal heartbeat is subject to damages of $10,000, but the act sets that amount as a minimum. The law states that successful claimants shall be awarded “statutory damages in an amount of not less than $10,000 for each abortion that the defendant performed or induced” after a fetal heartbeat or for each such abortion that a defendant aided or abetted. The statute gives no maximum or provide any method for determining damages beyond $10,000.) The law places no limitation on the number of defendants who can be sued for each abortion other than stating that an action cannot be brought against the woman who got the abortion. Claimants have every incentive to cast a broad net for defendants. Doesn’t the landlord who leases space to a clinic aid or abet the abortion? Doesn’t the person who maintains the elevators in the building aid or abet? And so on. Until such situations are clarified in authoritative court decisions, the risk of liability exists for many, and the safest course for the landlord and the elevator people and the Uber drivers are to avoid any interaction with an abortion clinic.

Defendants are potentially on the hook for even more money than just the damages. The statute provides that successful claimants will be awarded court costs and attorneys’ fees. On the other hand, the statute expressly denies successful defendants attorneys’ fees. Even if a defendant wins, he or she may still have to shell out thousands to their attorneys.

The statute even finds a way to drive up the defendant’s cost of defending an action. The law provides that the action can be brought where the abortion was performed but also in the county of a Texas claimant’s residence. The most convenient place for the litigation from an objective perspective may be Houston if that is where the clinic was, but the claimant can bring it in El Paso, 750 miles away, if that is where the claimant lives, and the law strips a court from transferring the location of the suit to the more convenient location because the claim’s location “may not be transferred to a different venue without the written consent of all parties.”

For people who oppose abortion, the Fetal Heartbeat Act is a stroke of genius. First of all, it empowers millions of vigilantes to bring suits under it, a striking feature in and of itself. More remarkably, however, it’s a law that requires no enforcement in order to shut down clinics. Its vagueness as to who might be subject to it puts many people at risk. The person who has delivered medical instruments to a clinic or processed medical tests might be aiding or abetting. Remember liability is imposed even if people do not know illegal abortions are performed. Will the legions of potential aiders or abettors take the risk?

Even doctors cannot always know now whether they are violating the statute. The law provides an exception for liability if a “physician believes that a medical emergency exists that prevents compliance with this subchapter,” but it is silent as to what might constitute such an emergency or how it is to be determined. A doctor, apparently, can now only guess. (The law is also vague about a particular class of claimant. The law provides that an action “may not be brought by a person who impregnated the abortion patient through an act of rape, sexual assault, incest or other act” in violation of Texas penal laws. However, the Texas Fetal Heartbeat Act states nothing about how the criminal violation is to be determined. Can this be claimed in response to the civil action, or does it require a criminal conviction?)

A doctor has said recently that he has performed an abortion in violation of the law, and claimants seeking at least $10,000 have rushed to sue. This should give a forum for challenges to the law, and the law should then– someday–be found unconstitutional. The vigilante enforcement mechanism of the Fetal Heartbeat Act turns out to both its strength and its weakness. The abortion opponents would be happier if there were no actual enforcement as long as suits look possible, for the mere chance of enforcement against so many people is enough to shut down all Texas abortion providers. But dangle money and attention in front of the world and people will grab at it, and suits, which allow legal challenges, will be brought.

Behavior can be controlled by risk even if the risk never comes to fruition. I doubt that many, if any, of the Texas officials were thinking of Jeremy Bentham and Michel Foucault when they adopted the Fetal Heartbeat Act, but the social control effected by the law has had me thinking of the panopticon.

(concluded September 24)

Let’s Expand the Texas Abortion Law

 I admire the Texas abortion law. The admiration does not extend to its substance, which bans abortions once a fetal heartbeat is detected, about six weeks after conception. Its substance is blatantly unconstitutional. Instead, I admire the law for its ingenious enforcement mechanism and wonder how that mechanism could be extended to other new laws. But first, what do we know about the new abortion law in Texas?

Texas Senate Bill 8 (SB 8), the Texas Heartbeat Act, states that “a physician may not knowingly perform or induce an abortion on a pregnant woman if the physician detected a fetal heartbeat for the unborn child.” In short, the doctor must test for a fetal heartbeat and keep records of those tests.

While this provision effectively outlaws almost all abortions, SB 8’s real innovation is its enforcement mechanism. Other abortion restrictions criminalize the procedure and put enforcement in state hands. Those seeking to prevent the application of such laws have sued to prevent the government officials from enforcing the statutes. In Roe v. Wade, for example, Wade was the Dallas District Attorney, and the plaintiff asked the court to enjoin or stop him from enforcing the abortion laws.

The Texas Heartbeat Act, however, expressly forbids all state and local government entities or officials from enforcing the law. Instead, the law “shall be enforced exclusively through the private civil actions described” in the law. The law states that “any person, other than an officer or employee of a state or local governmental entity in this state [Emphasis added], may bring a civil action against any person who: performs or induces an abortion” after a fetal heartbeat or “knowingly engages in conduct that aids or abets” such an abortion “regardless of whether the person knew or should have known that the abortion would be performed or induced in violation” of the law. A person successfully bringing such a suit shall be awarded “statutory damages in an amount of not less than $10,000 for each abortion that the defendant performed or induced” after a fetal heartbeat or for each such abortion that a defendant aided or abetted.

 “Any person” can bring an action under SB 8. The law does not restrict claimants to Texans. Californians and New Yorkers can seek the money. That may be surprising, but even more surprising is the conservatives who enacted this law allow even undocumented migrants to be claimants. Indeed, the law on its face allows Russians and Chinese to bring the civil actions. Its breadth is breathtaking, [deleted because it seems to refer to an aborted fetal heart] but the expansiveness goes beyond the pool of people who can enforce the law; it includes a remarkable number of people who are liable under the law.

The statute authorizes an action not only against the doctor performing an abortion after detection of a fetal heartbeat, but also against anyone who aids or abets such a procedure. However, it makes a radical change to the legal concept of aiding and abetting. Liability is not limited to those who know or suspect that a prospective procedure will be illegal. Instead, the law provides for liability “regardless of whether the person knew or should have known that the abortion” would be performed after a fetal heartbeat. The aider or abettor can escape liability only if he or she “reasonably believed, after conducting a reasonable investigation, that the physician performing or inducing the abortion had complied” or would comply with SB 8. The law, however, does not give a clue as to what constitutes a reasonable investigation. Is asking the physician sufficient? Or must a person see and be able to interpret the heartbeat test result? Or perhaps an opinion from a second physician who is not otherwise connected with the proposed abortion will be necessary. Only when, if ever, courts authoritatively define a “reasonable investigation” can abortion aiders or abettors know how to avoid liability, and until then they will have the risk of liability for violating the statute.

The risk of liability is expanded by the law’s provisions that there is no defense for reliance on a court decision overruled on appeal, “even if that court decision had not been overruled when the defendant engaged in conduct that violates” the law. For example, assume that a court has ruled that a defendant had conducted a reasonable investigation by getting a signed assurance from the physician that no heartbeat has been detected. The nurse or anyone else assisting in other abortions may wish to rely on this court ruling. But wait. The nurse can still be liable if a higher court, perhaps years later, rules that a reasonable investigation now requires more than the signed assurance. The nurse will have years of risk of liability, and there will be nothing that person can do to mitigate the risk, except, of course, stop participating in abortions altogether, which seems to be one of the purposes behind the law.

The Fetal Heartbeat Act does not define what actions fall within aiding or abetting, and no one can now know what is covered, for this is a new concept. SB 8 unmoors the terms from their accepted meanings in criminal law. A person does not aid or abet a crime unless he at least knows that a crime is being or will be committed. Donald asks you to drive him to the bank because, he says, his car is at the mechanics. You do the favor, but once inside, Donald robs the bank. Since you did not know he was going to do that, you are not guilty of aiding or abetting the robber.

The Fetal Heartbeat Act, however, makes someone liable if he “knowingly engages in conduct that aid or abets” an abortion after a fetal heartbeat “regardless of whether the person knew or should have known that the abortion would be performed or induced in violation”[Emphasis added] of the law. The driver, who knowingly drove the car, is only liable for the bank robbery if he also knew about the intended theft, but the abortion aider is liable without any knowledge of the forbidden procedure or perhaps without any knowledge of an abortion at all.

Uber dispatches a car to pick up a passenger. A woman, not visibly pregnant, gets in and the driver transports her to 123 Abbott Drive. The driver may not know that that destination contains an abortion clinic; he may not be aware of it even when he arrives since the clinic may keep a low street profile. An abortion in violation of the statute is performed. The Uber driver has no way of knowing about that procedure. Is the Uber driver civilly liable as an aider or abettor? I aid and abet a robbery only when I consciously transport the robber to the location knowing his plans. That action, with the guilty state of mind, makes me criminally liable. No guilty state of mind, however, is required for liability under the Fetal Heartbeat Act, but only the conscious act that aids. The Uber driver has knowingly transported the woman to the location and therefore should be liable.

Perhaps it seems farfetched to make the driver and Uber pay $10,000, but the literal words of the statute apply, and until the highest court in Texas rules otherwise, Uber and the driver are both at risk for at least $10,000 in damages. The claimant who seeks damages from the physician alleging a violation of the statute has every reason to include the driver and the company in the suit since it will take the claimant and the attorney little more time and effort to name them as defendants in addition to the doctor. With this risk hanging over such businesses, soon the drivers and companies will know that 123 Abbott Drive houses an abortion clinic and will refuse to take passengers there.        

But the risk for “third parties” extends to many more than Uber drivers.

(continued Sept. 22)

Snippets

 The pop-up ad asked, “What happens when you take a testosterone supplement?” The answer according to the ad: a young blonde appears. She has melon-sized breasts and hard nipples and is clothed in a dress so tight that it gives a lasting impression of the melon-sized breasts and hard nipples.

Don Everly died recently. His younger brother Phil died even earlier, seven years ago. Many, including me, loved much of their music, but I am willing to bet that I am one of the few who bought the Everly Brothers album “Both Sides of an Evening” because it had their version of “Mention My Name in Sheboygan.”

There is little to admire in China’s criminal justice system. On the other hand, I recently read that a mainland Chinese person was convicted of “picking quarrels and provoking trouble.” If this crime were not used in China to prosecute journalists and if it could be confined to politicians and some of my neighbors, I might like it.

America has become increasingly “divided between those who think with their head and those who know with their heart.” Stephen Colbert.

Each tennis player had won a point. The umpire intoned the score: “Fifteen all.” Would it be more grammatically correct or more accurate if she had said, “Fifteen both”?

A columnist excoriated Biden for imposing the vaccine mandates because as a candidate he said that would not require the injections. I thought of the words of Bernard Berenson: “Consistency requires you to be as ignorant today as you were a year ago.”

A woman at a protest against covid vaccine mandates was wearing a tee shirt reading “My Body My Choice.” I wondered, but doubted, that the woman was also pro-choice because I have seen similar tee shirts at rallies promoting abortion rights.

The Senator said that our withdrawal of military forces from Afghanistan was “clearly and fatally flawed.” I wondered what he meant. A fatal flaw, I thought, means that such-and-such an event cannot happen because of the inherent flaw. And yet, the withdrawal occurred. Perhaps he meant that the withdrawal was clearly and fundamentally flawed.

It seemed odd that he was putting together a jigsaw puzzle on a picnic table in a neighborhood park. As I got closer, I saw that the pieces were too small for a puzzle and thought he was doing some sort of work with beads, but there was also an Exacto knife and a pair of scissors. I passed him and then looked over his shoulder. Intent on his project, he did not notice me, but I asked, “Is that leather?” He looked up and said that he was cutting up Air Jordans. I could now see that he had almost finished creating a portrait of Michael Jordan from intricately-cut pieces of the man’s shoes. He told me that the picture would also have a basketball, which he was going to create by cutting up pieces of a real basketball. I asked if he sold his art, and if so, where. He said that he did sell his creations and was going to do so on an app that was not yet functioning. I asked if he was often in this park. He said, gesturing at the building to the north, “Yes. My son goes to school there.”  I looked again at the work in progress and said, “That’s cool,” but embarrassed myself a bit by adding, “man.” He, however, just smiled, looking pleased when I said that I would see him again.

First Sentences

“To my surprise some years back, I began to hear people outside of my home state, Texas, talk about, and actually celebrate the holiday ‘Juneteenth.’” Annette Gordon-Reed, On Juneteenth.

“When we were new, Rosa and I were mid-store, on the magazines table side, and could see through more than half of the windows.” Kazuo Ishiguro, Klara and the Sun.

“There are silences in American history.” Peter S. Canellos, The Great Dissenter: The Story of John Marshall Harlan, America’s Judicial Hero.

“An entire day had passed since George Walker had spoken to his wife.” Nathan Harris, The Sweetness of Water.

“By any traditional measure, James Buchanan was one of the best qualified men ever to hold the presidency.” Fergus M. Bordewich, Congress at War: How Republican Reformers Fought the Civil War, Defied Lincoln, Ended Slavery, and Remade America (2020).

“Wanda Batton-Smythe, head of the Women’s Institute of Nether Monkslip, liked to say she was not one to mince words.” G.M. Malliet, Wicked Autumn.

“I’ve referred to America as Fantasyland, but it was always also Tomorrowland.” Kurt Andersen, Evil Geniuses: The Unmaking of America, A Recent History.

“In the wings, behind a metal rack crowded with bundles of cable and silk flower garlands and the stringless lutes from Act 1, two black dachshunds lie in a basket.” Maggie Shipstead, Astonish Me.

“There had seemingly never been a better night for baseball in Cleveland than on August 20, 1948.” Luke Epplin, Our Team: The Epic Story of Four Men and the World Series that Changed Baseball.

“Something was wrong.” Jo Nesbo, The Bat.

“It was the middle of the night.” Lynne Olson, Madame Fourcade’s Secret War: The Daring Young Woman Who Led France’s Largest Spy Network Against Hitler.

“Penelope Kite stood at the door of her dream home and wiped her brow with the back of her hand.” Serena Kent, Death in Provence.

“Toward the end, as at the beginning, he lived only on milk.” Edmund Morris, Edison.

“’If there’s one thing wrong with people,’ Paul always said, ‘it’s that no one remembers the shit that they should, and everyone remembers the shit that doesn’t matter for shit.’” Gabriel Bump, Everywhere You Don’t Belong.

“I am a copy editor.” Benjamin Dreyer, Dreyer’s English: An Utterly Correct Guide to Clarity and Style.

The Future of America–Tennis Edition

          President Trump imposed tariffs on specialty steel products. A recent news story indicated that this action had benefited a Pennsylvania mill, which had added thirty or so workers and raised the question of whether President Biden would continue the tariffs. Meanwhile, the protection measures had increased the price of the steel and made it harder to get for American manufacturers, and this may decrease employment at some companies. I have no more than an Economics 101 understanding of macroeconomics, but all this made me think back to lectures on free trade that indicated such trade was good and that it increased wealth across the globe.

Assume you and I both raise cotton and make farm implements, but I am not in a good cotton-growing region and you are. You will grow more cotton than I will for the same effort. If you give up the tool business and devote yourself to the bolls, you could produce more cotton than you and I could together. I can devote myself to the hoe business, and we can both trade the fruits of our labor. The world is richer. It has both more cotton and at least the same number of hoes than without the trade.

That, of course, is the basic idea behind free trade. If each country does what it does best, and we can freely trade our outputs, then total productivity increases. Moreover, if the supply of cotton increases, then cotton should cost less, and those who purchase cotton have money left over to buy other things, increasing demand for more goods, benefiting the makers of other products as well.

          Cotton can be grown in some places more efficiently than in others because of natural conditions, but different factors are at work for the efficient production of cotton fabric, if by efficient we mean cost per unit of cloth. Manmade factors now become crucial. Local wages, the costs of safety measures and pollution controls, local electricity costs and so on can determine efficiency. Although other factors will come into play, whoever pays workers the lowest wage will most efficiently produce cotton cloth. Since the wages in Bangladesh are less than at North Carolina mills, the cost of products from Bangladesh will be less than products from North Carolina. We consumers benefit. I may pay a half dollar less when I buy, in a somewhat ludicrous attempt to be cool, those patterned socks made in Bangladesh compared to those made down South. With fewer people buying their product, North Carolina workers will lose their jobs. Even so, if we add up all those fifty-cent consumer savings, it may be a greater amount than the monetary losses suffered by the workers. Seen as a whole, American society is better off. But, then again, I don’t want to be the one to tell those who lost their jobs, “Buck up. Your loss was worth it for the rest of us.” With free trade, we often get small winners, the consumers, and big losers, the laid-off workers.

          Our free trade conversations now seem to center on those who have been harmed with little discussion of the benefits. To save the North Carolina cotton mills, we could put a tariff on those Bangladeshi socks, but while the tariff may be imposed on the foreign company, it really means that consumers will be charged more for the socks. If the tariff is high enough, the North Carolina mill will be competitive and will not have to shut down. Jobs are saved. But, of course, now consumers pay more for the product and have less disposable income for other stuff. If the country overall was better off economically when the foreign socks came in without a tariff, keeping them out with a tariff must mean overall the country is now worse off. 

          Besides a tariff or its equivalent, we should be discussing other ways to ameliorate the problems of those who have been the big losers to free trade. We should be thinking of a social net—health care, training, relocation assistance, infrastructure jobs, education incentives–if not generally, at least for those whose jobs have moved abroad. But this discussion is generally off the table. Such a social net is “Big Government,” and, goodness knows, we can’t have that. Meanwhile, a tariff–for reasons that have a mystifying logic–is somehow not considered to be Big Government even though it, in effect, is a widespread tax on consumers, a tax, like most consumer taxes, that is regressive leading to more income inequality.

          A discussion of how to help workers who lose their jobs because of systemic societal changes would be valuable since it would apply to more than just those workers who have lost out to free trade. So, for example, coal miners face unemployment not because of NAFTA or other such trade agreements. President Trump had suggested that declining mining jobs would come back once those Big Government regulations were rescinded. Perhaps some work would, but, of course, just as tariffs impose costs on the larger society, the deregulatory approach also imposes widespread costs. Many of those “regulations” are protections against industrial accidents and water and air pollution that impose costs not only on hurt individuals but on society in general. However, the removal of such protections is not going to bring back many of the mining jobs. Better technology has made competitors to coal more efficient, and better technology has led to the more efficient extraction of coal. Fewer miners are needed to mine the same amount of coal as were needed a generation ago, and natural gas competes better against coal than it did in the past. No matter what, all the coal mining jobs are not coming back.

          The coal industry is in illustration of an important fact: many jobs are not lost because of free trade or government over-regulation, but because of new technologies. Most of us do not see the dramatic effects of technology on employment, but in a minor way it was on display for millions in the recently completed U.S. Open tennis tournament. This sport has employed many officials for each match. In addition to the chair umpire, four officials make calls on the sidelines, one or two for the center lines, two for the baselines, two for the service lines, and one for calling lets when a serve clips the net…or, at least, it did. Through the years, an electronic device has replaced the human for let calls, and electronics were used when a player challenged a human’s line call. The Open, however, went further and dispensed with all human officials except for the chair umpire. All the in and out calls were determined not by people but by an electronic sensor and an electronic voice that sounded more human than Siri’s. This won’t make a huge difference in our employment statistics; the tournament lasts only two weeks. But a great many line callers lost their jobs.

          I may not have thought of technology changing employment in tennis tournaments until recently, but the fact that technology affects jobs in all parts of our economy has been apparent for quite some time. Another minor example, this time as-seen-on-TV: In a segment of the show This Old House, plans were shown for a house with intricate, curved, intersecting roof beams. The viewers were taken not to an old-fashioned woodworking shop, but to a modern factory that had Computer Numeric Control machines. The CNC devices, after some programming, quickly cut the beams and fabricated the complex joints. Norm, a carpenter on This Old House, was duly impressed and noted that it would have taken him days to produce one such beam, while one person operating a CNC machine for a few hours could make all of them. This technology may have had the benefit of making the costs lower for spectacular building designs, but, of course, fewer people with old-fashioned skills will be employed in the fashioning of some roof beams.

          Jobs are lost for many reasons, including international trade deals and technological advances. At least some of the time, I benefit because of lower costs. I have done nothing to deserve the benefit of free trade’s lower sock prices or roof beams made cheaper by technology. (On the other hand, the elimination of all those tennis lines people did not seem to translate into lower ticket prices. If the costs of the tournament were less, where did that money go?) And, of course, the mill worker, the carpenter, and the tennis line callers have done nothing to deserve a job loss. And this should lead to the societal question we don’t much discuss: Should I surrender at least part of my undeserved benefit to help those who got the punch in the gut?

What We Didn’t Learn from 9/11 (concluded)

The political and policy discussions after 9/11 immediately centered on security. We needed a larger military, more intelligence, more monitoring of potentially dangerous people, stricter border controls. We needed to kill bin Laden. We need to wipe out al Qaeda. These thoughts were understandable even if many of the actual responses were not justified or wasteful or simply wrong. We had little discussion, however, of what should have been evident from 9/11—the importance of a strong, efficient, creative government in non-militaristic area

On September 11, 2001, my office was eight blocks from the Twin Towers. I had come to work at eight to prepare to teach a law school class later in the morning. I took a break to go to the bank and heard the first plane go over my head and crash. I saw the hole on the upper floors of the Tower. Mesmerized, I realized that I was watching people dying. I decided that I wanted to see what the Tower looked like from the other side. As I got two blocks from the World Trade Center, the second plane hit the far side of the other Tower and flames shot out in my direction. I walked back to my office amidst crying and wailing people. I called the spouse to tell her I was ok, but the call got cut off when the first Tower fell. I decided it was time to get out of lower Manhattan.

I had driven to work. My usual routes home to Brooklyn were over the Brooklyn or Manhattan Bridges, both a few blocks from my office, but I knew they were closed. Picking up and dropping off people along the way, I drove to the next bridge over the East River. I was in line to cross the Williamsburg Bridge, with but two cars in front of me to get on the span, when traffic officials signaled that the structure was now closed. I went to the next crossing; got in line; and had it close just in front of me. And the next. There was no way to drive to Brooklyn. I turned around and headed south. I parked my car on a Chinatown street and walked with hordes of others over the Manhattan Bridge roadway to Brooklyn. (The mind operates on curious levels. Although I had driven over that span many times, I found myself thinking in the midst of the horror and shock of that day about the only other time I had crossed it on foot. In those days, no walkway on the Manhattan Bridge was open to pedestrians, but I once ran in a “Courthouse to Courthouse” race. It started by the Manhattan federal courts, went over the Manhattan Bridge, which had been closed to vehicles for the event, wound on local streets to a Brooklyn courthouse, and then reversed course to Manhattan. It was not a long race, but a tough one, all uphill or downhill. Now, on 9/11, it was not an organized run of a few hundred, but a solemn trudge by the tens of thousands, as if we were extras in a Biblical epic, except this was all too real.)

 In mid-afternoon, a news report stated that some East River bridges were again open. I walked a mile from home to the Manhattan Bridge where one bus stood to ferry passengers over the river. I got to my car and quickly doubted the accuracy of the news report since I kept finding bridges closed. About to give up again, I found I could cross the Tri-Borough Bridge into Queens, which, of course, abuts Brooklyn, but then I found my usual way home from that Bridge was closed. Normally I would merge off the Bridge on to the Brooklyn-Queens Expressway, but traffic officials were blocking the entrance to the expressway. An officer told me that I would have to take local streets. I prided myself on knowing my way around much of New York City, but Queens was always mysterious. I literally drove in circles, seeing one particular building at least three times. Finally, I came upon a familiar intersection because it was one I sometimes passed when I took the NBP to tennis on Roosevelt Island. I finally knew a route home. In my wanderings, which were less than twelve hours after the first attack, I passed many entrances to elevated roadways. Every one of them was blocked, I presume out of security concerns, by government officials.  I can’t imagine how many such entrances there are in New York City, but I thought what an amazing logistical feat it was to have closed every one of them in such short order. It took a good government, a strong government, a large government (which in New York City was largely a unionized government) to accomplish this. We pay a lot of taxes in New York, but it seemed more than worth it on the night of 9/11 for the response that I saw.

Of course, this was one of the many feats, and one of the more minor ones, that New York City quickly accomplished in response to the terror. When I had gone to my car, I could see that Manhattan south of Canal Street had been effectively cordoned off—once again, a remarkable logistical feat. And in the coming days, I would learn about the efforts and coordination of emergency medical personnel and school guards and sanitation workers and firefighters and housing officials and welfare workers and much more. Volunteers stepped forward as New Yorkers pulled together, but New York would not have recovered as well as it did without the effective performance at all levels of government. And this was not the work of bureaucratic drudges. The situation required new coordination among different government branches. It required creativity. It required dedicated service.

Mayor Rudy Giuliani got lots of praise because New York performed so well after 9/11, but a salient fact was overlooked. The City government as a whole performed marvelously. Plans had been drawn for emergencies, and they went into effect. And what put them into effect was Big Government. Liberals and conservatives both praised Rudy, but the importance of all levels of governments should also have been stressed. Would other cities where the mantra is against government have performed as well? We, luckily, do not know, but a story that should have come out of that tragedy was not just the performance of an individual, but how important a strong, dedicated, and creative government can be. If that strong, dedicated, and creative government had not been there, Giuliani would not have been effective and not have been a hero. In those unusual times when New York City was generally admired (Do you remember that accurate Onion headline: “Rest of Country Temporarily Feels Deep Affection for New York”?), besides the discussions about national security, lessons should have been given about the worth of the kind of government conservatives rail against. Reagan’s anti-government rhetoric was not heard in those days. It had been proved false.