In a tweet, criminal defense blogger Norm DeGuerre refers to an article by Michelle Alexander that asks,

What would happen if thousands of people charged with crimes refused to plead out?

Norm then asks

Bringing the system to its knees is in your clients’ best interest. Why aren’t we doing it?

And in a blog post, Mark Bennett gives the standard response that every thoughtful criminal defense lawyer gives when confronted with the “take every case to trial” idea:

The answer is simple: because we do not serve our clients’ best interest. We serve our client’s best interest. And what is in the clients’ best interest has nothing to do with what is in the client’s best interest.

What Mark’s getting at, once you sort through his very specific use of apostrophes — and assuming I’m not totally crazy here — is one of the more interesting game-theoretic aspects of criminal defense: The ethics of legal representation require lawyers to act in each client’s best interest (in the context of legal representation), and they are not allowed to sacrifice the client’s interests to achieve their own goals, including their goal of acting in the interests of other clients.

Thus, when making decisions about how to proceed for a particular client, they are not allowed to take into account the effects of their decisions on any other client of theirs, now or in the future, nor are they allowed to pursue social goals that might benefit other clients of theirs or other lawyers. For example, if a lawyer represented several people accused of committing a crime together, he would theoretically be obligated to make independent decisions about each client — including whether to recommend testifying against his other clients, in which case he might find himself racing to the prosecutor’s office on behalf of two or more clients at the same time!

No lawyer could possibly handle a conflict of interests this severe without at least the appearance of impropriety, so the ethics of legal representation wisely prohibit a lawyer from representing multiple clients in the same case (or whose interests otherwise conflict). Consequently, when several people are accused of committing a crime together, each defendant gets to have a separate lawyer. In practice, this means they would also have to be from separate law firms (except apparently in some public defender’s offices.)

If lawyers somehow cooperated to implement a “take every case to trial” strategy, the justice system would be overburdened, which would mean that prosecutors would probably be willing to offer really amazingly good deals to some defendants in the hope that they will plead out and reduce the trial load. It might be in the best interests of all clients considered as a whole to go to trial, but it could also be in the best interest of any single client to take the really great deal he’s been offered. Since defense lawyers are required to act in the best interests of each client, they would each be obligated to advise their client to take the deal. But when enough clients take the deals, the burden on the justice system is relieved, and the “take every case to trial” strategy collapses back to plea bargaining as usual.

As a consequence, the “take every case to trial” collective strategy would fall apart almost immediately as long as lawyers continued to obey the ethics rules. Consequently, no ethical criminal lawyer would seriously consider attempting this strategy. Which is why, no matter how unpleasant it is in the aggregate, lawyers continue to correctly advise their individual clients to take good plea deals rather than risk being found guilty at trial.

Civil law is more flexible, and several parties to a lawsuit will often consent to representation by the same lawyer in the interest of simplicity and cost savings if they consider themselves to be on the same side — e.g. all sued by the same plaintiff. This is especially likely to be the case if a single party such as a common employer has agreed to pay all costs. Since all the damages are coming out of the same party’s pocket, the lawyer is effectively representing a single client.

In criminal matters, the same is true of the prosecution. There may be victims, but the prosecution is carried out on behalf of the government, so all prosecutors are working for the same client. They are free to make any tradeoffs they want between cases, such as offering deals to some defendants to testify against others, and they can use their discretion to pursue broad policy goals, treating some crimes lightly in order to free up resources to come down hard on others. This flexibility is one of the fundamental differences between prosecution and defense strategies.

I should emphasize that none of this is intended to impugn Norm DeGuerre’s ethical standards for bringing this up. Subsequent twitter exchanges make it clear that he understands the ethical issue, but he nevertheless laments the resulting harm to clients.

However, being after all a lawyer, he does seem to be trying to skirt the ethical issues when he tweets,

And who knows, maybe we would be better at trials if we accepted our clients’ decisions and DID more of them.

Clients often say they want a trial even in cases where it would be a really bad idea. Ultimately, the decision is up to the client, but a good lawyer is supposed to try to talk them out of doing dumb things. However, if the lawyer didn’t try very hard, and the client still went to trial, the client would get what he wants, and going to trial would put pressure on the justice system to not take other cases to trial, so clients as a whole would conceivably benefit. This would benefit clients in general at the expense of specific clients, but if it’s what the specific client wants…maybe it’s ethical?

(I think probably not, because lawyers have a duty to give good advice, but I’m in over my head here. Lawyers are experts at finding tricks in systems of rules, so there might be situations where this is completely ethical.)

Norm also seems to think that a significant number of criminal lawyers are trial averse — due to either fear or laziness — and discourage their clients from going to trial more often than they should, which hurts all criminal defendants by easing the trial load on the prosecutors’ office. (Norm apparently loves going to trial. As he puts it elsewhere, “As a public defender, a client telling me, ‘I didn’t do shit!’ is enough of a reason as any to take his case to trial.”)

In another post, Mark Bennett takes that idea in an interesting direction:

[F]or the sake of the system it’d be better if more lawyers had pathologically rosy outlooks, because then fewer defendants would plead guilty. In fact, one way that we might get more defendants to refuse to plead guilty is to get lawyers to believe more in their ability to win more cases. If our concern is the clients’—rather than the client’s—interest then we want to encourage criminal-defense lawyers to view trial more optimistically, whether or not that optimism is merited.

How might we encourage criminal-defense lawyers to view trial more optimistically? One way would be to pretend to teach them to be better lawyers—to teach fake CLE, and pretend to give them more tools to use to win their trials.

This neatly skirts around the ethical issues of legal representation. The folks teaching the fake CLE classes are deceiving the lawyers by pretending to teach them skills that don’t work, but if the ultimate result is to bring the plea bargaining system to its knees, then it could produce a net benefit for clients. And the lawyers teaching the classes have no ethical obligations to any individual client, so they are free to seek to maximize the clients’ aggregate welfare. In fact, since bringing down the system will probably end with prosecutors charging fewer people, this will even help people who are never the clients of any lawyer.

This is the logic of many public health initiatives — the flu vaccine kills a few people every year, but the vaccination program saves thousands. It is also the logic of many public interest activist groups, which may engage in activities intended to improve society, even at the expense of some members of society.

(Mark goes on to say that fake CLE classes might not be such a good idea, and that a much better solution would encourage lawyers to be more optimistic about trials by actually teaching them better trial skills.)

Interestingly, I think the article that got Norm DeGuerre excited in the first place may also avoid the ethics issue. The way I read it, Michelle Alexander isn’t encouraging lawyers to crash the system, she’s contemplating the possibility of the clients themselves doing it:

After years as a civil rights lawyer, I rarely find myself speechless. But some questions a woman I know posed during a phone conversation one recent evening gave me pause: “What would happen if we organized thousands, even hundreds of thousands, of people charged with crimes to refuse to play the game, to refuse to plea out? What if they all insisted on their Sixth Amendment right to trial? Couldn’t we bring the whole system to a halt just like that?”

Great change often involves sacrifice. If thousands of black people in Montgomery could boycott buses for a year, if the boycott leaders could be arrested and jailed, if black people could risk beatings and arrest for sitting at whites-only lunch counters, if slaves could risk their lives escaping, and thousands of people could fight and die in a civil war…then perhaps today enough people would be willing to risk lengthy jail sentences to bring down the system of mass incarceration.

“I’m not saying we should do it. I’m saying we ought to know that it’s an option. People should understand that simply exercising their rights would shake the foundations of our justice system which works only so long as we accept its terms. As you know, another brutal system of racial and social control once prevailed in this country, and it never would have ended if some people weren’t willing to risk their lives. It would be nice if reasoned argument would do, but as we’ve seen that’s just not the case. So maybe, just maybe, if we truly want to end this system, some of us will have to risk our lives.”

It would be better to wind down the system of mass incarceration through moral suasion and peaceful change, but if that’s not working, maybe something drastic will be needed.

Finally, while the ethical barriers to a “take every case to trial” strategy depend on the nature of lawyers’ obligations to individual clients, a more fundamental requirement is that there be a trial tax: If going to trial isn’t particularly likely to be worse than taking a plea, then taking cases to trial becomes the dominant strategy. If the justice system treats defendants terribly even if they accept plea bargains, and if the prosecution comes to depend on plea bargains so much for certain types of cases that they lose the organizational capability to convict people, then all hell can break loose.

You know how we worked? We put the state on their heels with our crazy volume of cases.  At the height of our “reign” it was a full nine months from the time somebody demanded trial until their first trial setting.  The state was so overwhelmed that they were only getting subpoenas out a week to ten days before the trial.


When you force the state to actually prepare for trial on every damn arrest the cops make, you’re going to win a lot of cases. Like, almost all of them. They were having to drop cases as quickly as we set them. We’d be crazy to change anything.

Although, as the author of that post eventually discovers, the system has ways of defending itself. It’s one thing to gum up the works, and it’s another thing to cause lasting positive change. It may not be possible to overthrow mass incarceration with cool legal stunts.

It seems I’ve been taking a lot of shots lately at muddled thinking on the left, so I thought I’d try to balance things out. I often grab my craziest liberal nonsense from Addicting Info, and now I needed to find a similarly addled site for right-wing content. Fortunately, there’s the Conservative Tribune.

The site is mostly clickbait nonsense, but this article displays an attitude I’ve encountered before — it’s a why-aren’t-people-outraged piece — and I wanted to try to come up with a response.

Our nation’s police officers are under attack. Between last week and this week, three police officers have been gunned down in cold blood. Yet there are no protests. No buildings are being looted. The president isn’t saying that one of those officers could be his son.

What exactly would people be protesting? More to the point, who would they be addressing their protests to?

Officer Gregg Benner, a Rio Rancho, N.M., police officer, was shot on Monday night. The 49-year-old Air Force veteran had been with the police department almost four years. He was survived by his wife and five adult children. His killer has been brought to justice.

The protests in Ferguson and Baltimore broke out because people felt they weren’t getting the justice they deserved. What exactly should people be protesting here? The shooter, Andrew Romero, has been arrested, he’s been charged with murder, and he’s is being held on a $5 million bond. The FBI is also taking an interest. The system is working. There’s no one to protest against.

Instead, Rio Rancho residents have been showing support for the Benner’s family and the police department. The memorial at the site where he was shot is covered in flowers and flags.

Officer Kerrie Orozco was murdered in Omaha, Neb., on Wednesday by Marcus D. Wheeler, a 26 year-old black male. Wheeler was killed during the shootout with Orozco.

Again, why should there be protests? The person who murdered Officer Orozco is dead. You can’t get much more justice than that. What would protesters be protesting for?

Rather than protest, people gathered to mourn the loss. Hundreds of people attended Kerrie Orozco’s funeral, and thousands lined the streets along the route.

And on Sunday, Officer James Bennett Jr. was shot and killed in his patrol car in New Orleans. A manhunt is underway for his killer (H/T The Gateway Pundit).

Three unnecessary deaths all within a week of one another. Three lives cut short, yet no one from our government seems to care. This is disgusting.

One killer arrested, one shot dead by police, and one the subject of a massive police manhunt. I’d say people from the government care rather a lot. The criminal justice system comes down very hard on cop killers. You don’t need fiery speeches from politicians and protesters when the system is working.

All across the country, police officers are under attack by the very criminals they are trying to protect us from. Killing a cop used to be a line that almost no one would cross. Now, it seems like every other day we read about another officer down.

Actually, the number of police officer killings has been fairly steady lately, and it’s down quite a bit since the high point of police killings in the 1970’s.

President Barack Obama, Al Sharpton, and the rest of their race-baiting ilk are directly responsible for these atrocities. Through their efforts to criminalize the police force, they have created an open season on police officers.

It would be nice to offer some evidence for a claim like that. The three examples in this article certainly don’t appear to have been the result of a generalized anti-police sentiment. We don’t yet know why Officer Bennett was shot, but both of the other officers were shot by people with long criminal records. Wheeler shot at cops trying to arrest him, and Romero was trying to avoid arrest.

Police officers are out there every day trying to keep us safe. They aren’t perfect. None of us are. However, they represent law and order in this country, and when you attack them, you are attacking everything this country is built upon.

Uhm…actually…this country was kinda founded on fighting against British law and order…so maybe that’s not the best argument…

Yet there have been no mass protests. There have been no riots demanding justice for these slain officers.

You know what kind of people have protests and riots? People who feel they have no other way of being heard, no other way of attracting attention to their needs, no other way of getting justice.

The police don’t have that problem. One of the perpetrators has already been arrested, and another is dead. The third is still at large, but it’s not because nobody cares about the officer he killed. Nobody’s protesting over murdered police officers because the police don’t need protests to get justice.

The Volokh Conspiracy blog has finally made the move behind the Washington Post paywall, and that led to an interesting comment on Twitter by conspirator Orin Kerr about the change in audience from being an independent blog to being part of a major media outlet:

I think we’ve gained some and lost some. I’m worried we lost the law nerds and gained general interest readers.

As Roger Ford adds,

Skimming down the site now, it sort of reads like “Eugene Volokh explains the legal news for lay readers.”

The original Volokh Conspiracy site had long been a source of intelligent discussions about legal theory, but with its new larger and more varied readership, it has apparently become less focused. Scott Greenfield at Simple Justice explained the change in more detail:

Forgive me for digressing, but my thoughts are best expressed with some context. While VC historically highlighted legal scholarship from a somewhat conservative libertarian perspective, it did so with a touch of realism, in connection to real world events, that made it relevant to what practicing lawyers do, as well as judges who decide such matters. VC was the nexus between theory and practice.

SJ is written from the criminal defense lawyer perspective, which meant that it tended to be too rough and vulgar for academics. From my perspective, the critical audience was fellow CDLs; that others, from lawprofs to civil lawyers to non-lawyers, didn’t really matter.  To the extent I was concerned about other people’s views, it was the views of my colleagues, my brethren.

That VC has abandoned its effort to connect academic theory, even with its libertarian tilt, with real world practice, and instead sees its future as persuading the groundlings to embrace its theories, makes no sense to me at all.

Does that mean the ridiculous drivel dished out by Paul Cassell will be the norm?  Does that mean Eugene will no longer offer First Amendment analysis of any depth?  Does that mean Orin will only use small words and abandon trying to explain the mosaic theory?

That’s a common area of tension that shows up in many fields, including the sciences: There are people who are important in their field, and there are people who are experts at explaining their field. There’s not much overlap.

Some of the explainers achieve a degree of fame, but when you look at their scientific contributions, they haven’t usually made major contributions to their field. Carl Sagan was not one of the world’s greatest astronomers, and Neil deGrasse Tyson is not one of the great astrophysicists. Much the same can be said of Richard Dawkins and Steven Pinker in their fields, and Bill Nye The Science Guy is more of an engineer and inventor than a scientist.

I’m not saying these people are idiots or fakes. I’m sure they all did their jobs very well, and they’ve usually contributed something original to their fields, and all of them by definition are good at science education of some kind. Nevertheless, they usually aren’t among the top experts in their fields in the opinions of other experts in their fields.

The real experts are rarely well known to the public. Except for major historic figures like Isaac Newton or Charles Darwin, most of us wouldn’t recognize the names of important research scientists unless they have stuff named after them like Heinrich Hertz and Alessandro Volta or because they have entered popular culture, such as Erwin Schrödinger, known for his cat, and Werner Heisenberg, known for his uncertainty principle (and now for also cooking crystal meth). In their time, however, they weren’t well known to the public.

(Because the major contributors to scientific fields are generally not known to the public, I’m pretty much guaranteed to have characterized someone as an explainer rather than a major contributor because I am unaware of their important contributions to a field other than my own. Sorry.)

By way of example, my background is in computer science, and I think I can come up with a few very important contributors to computer science that you probably never heard of, such as Edsger Dijkstra, Donald Knuth, C.A.R. Hoare, Fred Brooks, Grace Hopper, and Niklaus Wirth. You probably know Noam Chomsky, but for his politics rather than for his influence on computer science, and everyone seems to have heard of the Turing Test for artificial intelligence, but that was not Alan Turing’s most important contribution to computer science.

The division between contributors and explainers often occurs within academia, in the split between teaching and research. Economist Steven Landsburg illustrated the difference between these groups by analogy to a cocktail party involving two groups of people: The researchers are like a group of people in the center who are talking to each other about all the interesting things they do, whereas the educators are are all standing around the edges, talking about what the group in the center has been up to. (I may have mangled this a bit.)

Landsburg asked readers which group they’d rather talk to: The interesting people in the center or the people at the edges who talk about what the folks in the center are doing. To him, the answer obvious answer was that you’ll want to talk to the people in the center, and that’s why students are better off joining academic departments that do research.

I think that misses an important point: Talking to the group in the center is only the best choice if you can understand what the people in the center are talking about. A student new to the field is unlikely to benefit from discussions that assume half a decade of education in the field. More to the point, there’s a difference between understanding complicated subjects, and knowing how to break down complicated subjects into simplified component bits of knowledge that can be taught to students.

One of my introductory calculus classes was taught by a professor who was one of the most important researchers in the math department. It was a terrible class. I have no doubt he understood the subject, but he had no idea of what it was like to not understand calculus, and he was consequently incapable of explaining it to us. Rather than using carefully crafted examples to illustrate how calculus works, he would make up ad hoc problems that required us to spend a lot of time thinking about ancillary issues. The homework problems would be straight out of the lesson plan, which was not always what he had been teaching us. The disconnect was especially bad on the test questions — I’m convinced that some of them required us to know things he didn’t realize he hadn’t taught us yet.

There’s also the question of whether the people in the center will be willing to talk to people who know very little about the subject. After all, they also want to learn the cool new stuff, and that means they have little time for newcomers who can teach them nothing interesting. Serious research professors are known for having crappy office hours.

Switching back to my own field, software development, as an experienced software engineer, I would probably have trouble figuring out how to teach an introductory course in computer programming. For example, when I approach a programming problem, I might think about many aspects of it at once — algorithmic correctness, efficiency, resource consumption, parallel processing, network traffic, database architecture, interface design, scalability, generalizability, separation of concerns, layering, composability, opportunities for refactoring, testability, and so on. I’m not trying to brag. Those are all things that pretty much any experienced software engineer will keep in mind, and they are things that all developers should learn about.

However, it would be a mistake to try to teach someone computer programming from the ground up by teaching them about all those things at the same time. A good teacher would probably start with some foundational skills such as expressions, control structures, and basic class design before moving on to details of the language and the runtime library and then some of the bigger-picture organizational concepts.

Every field needs both kinds of members — those who do it well, and those who explain it well. Those who do it well sometimes look down on those who teach it, especially since the teachers often lack the detailed knowledge of the practitioners, and they often make mistakes. These errors and omissions are a problem, and they should be corrected, but when it comes to teaching a field of knowledge, a skilled teacher who gets some parts wrong can still impart more information to an audience than a skilled practitioner who knows everything but doesn’t know how to explain it.

For example, in discussing the weather, we refer to the relative humidity of the air. The basic idea is that air has a temperature-dependent maximum capacity for moisture — the higher the temperature, the more water the air can hold — and relative humidity expresses how much water is in the air as a percentage of the maximum theoretical capacity.

This concept explains thinks like why items in the refrigerator frost over when you leave the door open — the warm room air cools down, which reduces the water carrying capacity below the amount of water already in the air, forcing the excess water vapor to be deposited as “sweat.” This is also why air conditioners always have to drain off water: The suddenly cooled air can’t hold the water and deposits it on the evaporator coils.

This model also explains why we run humidifiers in winter — your furnace warms the air, which increases it’s water vapor carrying capacity, but your furnace doesn’t actually add water to the air. Since relative humidity is the amount of water vapor in the air divided by the maximum capacity, and only the capacity is increased, your furnace reduces the relative humidity of the air, and it feels too dry. A humidifier adds water vapor to bring the relative humidity back up to comfortable levels.

Further, the human body’s cooling system relies on sweat evaporating from the skin to carry off heat, but if the air is already near its carrying capacity, there’s no “room” for the sweat to evaporate, so your body doesn’t cool enough. This is why dry heat is more comfortable than hot and humid weather. It’s also why we set out thermostats warmer in winter than in summer: The heated air is drier, so evaporative cooling makes us feel chilly unless we bump the temperature up a bit.

This “carrying capacity” model of humidity is widely known, it makes sense of a lot of things we observe about the world, and it is routinely taught by school teachers. And yet it is almost completely wrong. The real explanation of what’s going on is considerably more complex and harder to understand, unless you are used to thinking about systems in equilibrium and know some basic physics of gases.

To be sure, the correct explanation is much better. It can be expressed analytically, and you can use it to solve real-world engineering problems, where it will give accurate answers across a broad range of scenarios. And yet most people can get by with the simple but wrong explanation, because it’s good enough. And in this case, good enough is easier to teach.

Understand, I’m not defending teaching people things that are wrong. That’s always a bad outcome, and in fields like medicine or law, it can be dangerous. What I’m saying is that often someone who’s good at explaining things can be a better educator, even if they make some mistakes, than someone who gets everything right, but can’t get it across to anyone else.

And sometimes it’s not so much that they can’t explain it as that they won’t explain it or they don’t have the time to explain it. We can complain about some of the questionable neuroscience in Carl Sagan’s Dragons of Eden, but most real neuroscientists are busy doing real neuroscience, and they don’t have time to answer your questions or write a popular science book. We can poke fun at law professors who reveal their lack of practical knowledge when they go on talk shows, but most experienced trial lawyers are too busy practicing law to answer questions about the latest trial in the news. In both cases, as long as they don’t actively make people stupider, we’re better off with them than without them.

As for the Volokh Conspiracy, I don’t read enough there to follow what’s going on, but if they are changing their target audience from “law nerds” to general interest readers, that’s going to disappoint the nerds, but maybe it will bring a smarter, more rigorous explanation of the law to lay readers.

I am not Charlie.

Honestly, until this shit happened, I didn’t know a damned thing about Charlie Hebdo. I don’t have a clue what Charlie Hebdo stood for, so I’m not about to identify myself with them or support their editorial agenda, whatever it is.

Besides, in my mind, “I am Charlie” links to the scene in the 1960 film Spartacus where rebellious former Roman slaves refuse to identify their leader Spartacus by all claiming “I am Spartacus!” thus consigning themselves to be crucified alongside him. That’s real dedication to a cause. And as Matt Welch points out, Charlie Hebdo was run by badasses. Their own government went after them for offensive speech and they fought back and won. Muslim extremists firebombed their offices, and six days later they responded with this:

Love Is Stronger Than Hate

(“Love is stronger than hate.”)

By comparison, I’m publishing this blog from the middle of the United States of America which is still — despite all the problems detailed here on a regular basis — a bastion of free speech. The worst that’s ever happened to me for something I wrote is that people left nasty messages in the comments or said mean things about me on their blog. The worst that’s ever likely to happen to me is that I have to find another job because my employer doesn’t like something I wrote. If someone shoots me, it’s more likely to be my wife than terrorists.

Look, whatever Charlie Hebdo stands for — I don’t know or care what it is — I stand by their right to believe it and say it and publish it. It’s insane to kill someone for drawing comics and saying mean things. The gunmen who shot the Charlie Hebdo writers and artists are a bunch of terrorist assholes, and I want them all to die in a fire.

But my saying so doesn’t get me any points for bravery. I’ve got it easy. I realize that many of the people posting “I am Charlie” don’t mean it this way, so this is not a knock on them, but to me “I am Charlie” feels like trying to portray myself as having courage on a level that is simply not required for what I do. My world is not that dangerous. I am not Charlie.

One of the implicit assumptions I make here is that the criminal justice system is not exempt from the general principle that social institutions enforce social norms. In a society hostile to minorities, giving authorities another law to enforce is giving them another way to punish minorities. Even a law intended to help minorities can end up hurting them if the intended effect is overwhelmed by oppressive enforcement.

This especially applies to laws against hurting people’s feelings, such as laws that punish “bullying” or offensive (but non-violent) behavior, or even laws that increase the punishment for “hate crimes.” Although these laws are nominally intended to protect the powerless, they are part of a system that tends to protect and support the powerful, often harming the powerless in the process. That latter effect can swamp the intended purpose of the law and do more harm than good.

I think I first really understood this after hearing about Canadian anti-pornography laws premised on the feminist theory that pornography was a form of hate speech which harmed women. Among the first people to be prosecuted under these laws was the owner of a gay and lesbian bookstore — no doubt to protect women from the inherent misogyny of the materials sold there.

I’m  bringing this up because of a recent proposal for extending the federal hate crime law:

Violence against police officers that is motivated by anti-police bias should be prosecuted as a hate crime, the nation’s largest police union is arguing in a letter to President Barack Obama and Congressional leaders this week.

“Right now, it’s a hate crime if you attack someone solely because of the color of their skin, but it ought to be a hate crime if you attack someone solely because of the color of their uniform as well,” said Jim Pasco, the executive director of the National Fraternal Order of Police.

I’ll bet supporters of hate crime legislation didn’t see that coming. It never occurred to me that in the face of increasing complaints about police militarization and rough treatment of citizens, police unions would agitate for greater punishment of people who attack them.

I’m not sure it even makes sense to talk about “anti-police bias.” I know they mean someone who hates cops, but it’s not as if cop is an innate human attribute like race or gender, and it’s not a system of belief or a group you can join like a religion. Cop is a job description. There’s nothing wrong with criticizing either the requirements of a public service job or the way particular employees perform at it.

“Enough is enough! It’s time for Congress to do something to protect the men and women who protect us,” Chuck Canterbury, the president of the union, said in a statement Monday. The group has long lobbied for harsher punishment for those who harm law enforcement officers.

Indeed they have, and very successfully. Anyone who kills a police officer is already subject to the harshest possible punishment, which is often the death penalty, and that’s only if they live long enough to be captured. So what do the union bosses really want?

I assume much of it is just grandstanding for the rank-and-file. That tends to explain a lot of bombast by the heads of any organization. But I think there’s probably more to it.

The FOP newsletter mentions several murdered police officers, and some dodgy news coverage talks about treating “killing cops” as a hate crime, but the language used by the union bosses talks only about “violence” and “attacks.” Furthermore, as near as I can tell, the federal hate crimes laws apply to a pretty broad range of aggressive acts that fall far short of murder, and some hate crime laws apply even to relatively minor property damage (to address things like spray painting swastikas on a synagogue). It sounds like even minor crimes against police could be treated as hate crimes if there was evidence the offenders didn’t like cops.

To me, this seems pretty clearly targeted at protesters. There’s certainly nothing wrong with charging them when they do something violent or destructive, but it’s important to keep a sense of proportion. With the proposed changes, if the laws are interpreted broadly enough — and you know police will interpret the laws broadly — every thrown object, every shove at a riot shield, and maybe even every vandalized patrol car could be charged as a hate crime, subject to the same kinds of harsh punishments we intended for Nazi skinheads and Klansmen who burn crosses on people’s lawns.

Over at Defending People, Mark Bennett is explaining to lawyers how to decide when to reject a potential new client, and what to do about it.

I have developed, and I suspect that most criminal-defense lawyers develop, an intuitive sense for when we shouldn’t take cases. I get myself in trouble when I ignore that intuition. So I listen to it.

As Mark points out, this is also good advice for avoiding trouble in other areas of your life. Your intuition about bad situations isn’t always going to be correct, but it’s always based on something that triggered it, and it’s not acting in anyone’s interests but yours.

His advice about what to say is also spot-on:

There had been one unfortunate incident after another, and even with prompting he was unable to explain the logical connections between the incidents and his immediate need for a lawyer. My “spidey sense” tingled. I told the caller: “I’m sorry. I can’t help you with that.”

That is all the explanation that should be needed. You don’t owe anyone a justification for not taking his case… If you tell someone, “I’m sorry. I can’t help you with that” and he demands an explanation, be glad that your intuition has been confirmed.

This is great advice for every area of your life. There are no rules of social behavior or good manners that require you to explain yourself when you reject an offer from a stranger. Whether it’s the salesman who just spent 30 minutes showing you a new car or the guy at the bar who wants you to leave with him, you rarely owe them anything more than some variation of “I’m sorry, but I simply can’t.”

That’s not to say you couldn’t explain more if you want to, especially if you have a good specific reason for your decision and you want to help the other person understand it. So if you’re a criminal lawyer and the client has a matter of civil law, go ahead and explain. If you’re at the bar with your husband when a man offers to buy you a drink, go ahead and tell him you’re married. But if your reason for declining an offer is because your intuition is screaming “No!” then remember that you don’t have to explain anything.

Think of it as a form of rhetorical self-defense. By not offering an explanation, you’re keeping them from getting a grip on you. If you offer explanations and equivocations out of a desire not to seem rude, you’re just opening yourself up for them to take advantage of you. It’s one of the tools that manipulative people use against you.

Salespeople, for example, are taught to get reluctant customers to explain their concerns so they can offer counter-arguments. If you really want to know more about what they’re selling, go ahead and enter into this discussion. But even after they’ve addressed all your concerns, you can still say “no” and you still don’t have to explain yourself.

I’ve had salespeople get angry at me when I do that. I can kind of understand that. To them, it seems like I’m being childishly unfair and not playing by the rules. I’ve also heard of guys swearing at women who decline their advances without offering an explanation. Again, I can kind of understand. It feels a bit rude. Nevertheless, people who get angry because they think strangers owe them explanations are probably going to be unreasonable about other things.

(Some manipulative people will try to trick you into offering explanations by implying that you have  disreputable motives. Maybe the prospective client will accuse you of not wanting to help people of his ethnicity, or the pushy guy at the bar will tell you that, “I can see you’re uncomfortable letting yourself trust people.” A less obvious variation that you’ve probably seen is the salesperson at a high-end store who subtly implies that a person of your station in life wouldn’t appreciate what they have to offer. Don’t fall for these tricks by offering an alternative explanation. When someone tries this on you, it’s just more proof that you should stay away.)

Note that I’m not saying you should be rude to strangers when you turn them down. You should be polite. Maybe even excessively polite. But your politeness should not take the form of explaining your decision.

“Oh, I’m so sorry, but I simply can’t.”

If they press you for an explanation, just keep repeating your apologetic refusal.

“No, really it’s just not possible.”

They’ll usually get the message. And if they don’t. Well, then you can be rude.

I’ve read several articles about the Texas school district being sued for their policy of forcing students to use an ID card embedded with “tracking” technology. The religious freedom angle seems dubious at best (though in Texas you never can tell), but I was surprised by the number of people worried about technology to “track” school children and the supposed dangers of the technology. I’d like to demonstrate how such concerns are overstated with this particular system.

Most of the people discussing this issue seem to have little to no understanding of this technology, so I’m going to try to clear things up a little from the technical perspective and explain how this is a very poor tracking system at best.

The ID cards in question contain an RFID chip, which is an acronym for Radio Frequency ID. There are several different flavors of RFID, and most people have interacted with it in one of several forms for many years now. The most common use over recent decades has been for product theft detection using a simple passive one-bit RFID circuit.

OK, I’ll try to explain what a “passive one-bit RFID circuit” actually is. First let’s cover the “RFID” part.

It’s a simple (yet ingenious) electronic circuit which has a couple of capabilities. At a minimum an RFID chip must have circuitry to store some information in binary format (zeros and ones or possibly just a single “on/off” state), and contain a two-way radio of some kind, including an antenna.

There are active and passive RFID systems. An active RFID uses some sort of power source directly attached to the circuit (such as a battery) to power the circuitry. A passive RFID contains no local power source. Instead it uses the energy in the radio waves coming from the radio transceiver in the reader. That’s the ingenious part in my opinion. As you can imagine, that’s a very tiny amount of power to work with, so passive systems have extremely limited range.  The range of such passive systems can be from a few inches to several yards depending upon the size of the receiving antenna in the reader and the sensitivity of the receiving radio and its ability to discern signal from noise. But it’s mainly all about the size of the receiving antenna.

That’s why there is a large pair of antennae not too far apart near the exit doors of stores which use passive RFID systems for theft control. If the circuit is in an on state, the RFID circuit responds telling the alarm to sound. The circuit can be switched to an off state using the pad on the checkout counter.

By adding to the complexity (and cost) of the circuit, you can store and transmit more than just an on/off state. The more you store and transmit, the more complexity, so most systems just store enough binary information for a short unique ID number.

Most people use an active RFID system when traveling on tollways. The transceiver stuck to your windshield is an active RFID system. Because it uses a battery, it has a much longer range (dozens of yards when combined with large antennae around the toll plazas). That RFID contains a unique ID number which the tollway authority uses to associate with your car and payment information in a database.

Anyone who has been issued a company ID card with and RFID chip used as a key is familiar with the type of chip used in the school district. It’s a passive system (no battery in the card) and the range primarily depends upon the size of the antenna in the reader. If it’s a small antenna (like the one in the block next to the door you need to unlock), you need to get the card very close for the system to work. That’s why you need to do the Backwards Door Jump to get your card to work while it’s still in your back pocket. It stores an ID number which the database associates with your credentials (such as which doors you should be able to unlock).

If you increase the size of the antenna, you can get the system to work at longer ranges (in the several feet to several yard range before the size of the antenna becomes ridiculous).

So, what does this mean to our school children?

First of all, it’s not like a GPS tracker on your phone. The RFID chip has no clue where it is. The only way it can be used for tracking purposes is by setting up a series of readers and sorting through the data collected to find time stamps for when the chip passed near enough to a reader to communicate. In school I could see where you could place readers at every door to actually track students as they passed through them. If a student were, however, kidnapped, there would be no way to find them unless you managed to get within a few yards of them, and they still carried their ID card.

You wouldn’t even be able to ask the tollway system to look for them since they are only designed to work with the active RFID chips. You just couldn’t reasonably get a big enough antenna to be able to activate the passive chip and actually read the ID in a car passing at a high speed.

I haven’t found anywhere just how the system is being deployed at the schools in question, but I did see they implemented it so they could know when a student was in the building, but wasn’t recorded as being in attendance in a particular class for the purposes of getting federal money. (I guess they get money for the student being in the building no matter where the student is.) They don’t even need to track students within the building, so I suspect they didn’t go to the expense of setting up readers at every door to do so. Placing one at each entrance to the building would do the trick.

Secondly, the RFID chips contain no personal information themselves. If someone were to query that chip by using a portable reader, which they would need to do from a very close range (a few feet unless they carried around a huge antenna), they would simply get a number. To parlay that into a home address, for example, they would need to hack into the school database. Of course if someone did that, they would have every student’s home address and ID numbers. I’m not sure why anyone would first want to read the RFID or how that could be used by an Evil Person out to do evil to the student.

I suppose there could be some student hijinks by creating duplicate ID cards (you can order programmable RFID cards and the radios to read/program them for only a few hundred dollars), but I don’t see how a sexual predator, for example, could use RFIDs for tracking or identifying victims.

Do I like the idea of being tracked? No. I have often discussed the pros/cons of systems which can be combined to create tracking information (such as the tollway RFIDs) with my students. But that’s another topic for another time. I see no reasonable way such a system could be used to track students outside of the school.

For homework, I’d like you to think about the number of RFID chips you have. ID card from your employer? Library card? Tollway box in your car? Public transit card? Are you eager to have a Near Field Communication system in your next phone? (That’s just another RFID standard.)

Did you remember to add your car keys to that list? Most automotive keys have an RFID chip in them which your car talks to when you put it in the ignition. If you want to test that, wrap the top part of your key tightly in aluminum foil, sealing it as best you can around the base, then try to start your car.

I wonder if that student in Texas ever plans on owning a modern car…

Congratulations are due to Democrats and various big government liberals now that the Supreme Court has now given its approval to the most controversial parts of the Patient Protection and Affordable Care Act (Obamacare).

Of course, none of this would have been necessary if the Democrats had been honest enough to pay for affordable care with a tax plan instead of the silly mandate scheme we’re all going to be stuck with. It’s the equivalent of some city deciding to build a new baseball stadium and promising citizens it won’t be paid for out of tax dollars, only to require every citizen to buy a season ticket.

Now, since our elected leaders never worry about the consequences when power passes on to the other team, in a few years when the Republicans are in charge, I don’t want to hear any complaints if there’s an oil slump and they decide to prop up the petroleum industry by setting a 50-gallon per month minimum fuel purchase requirement, with just a tiny penalty/tax if you fail to meet it. Also, there will be the requirement for poor, young, inner-city men and women to buy contraceptives or pay a fine, which is totally not to be confused with a eugenics program. And then there’s the Homeland Security requirement for every American to buy an AR-15 and shoot at least 1000 rounds of ammo per year…

(Headline allusion explained.)

I’m pretty sure the anti-vaccination crowd is seriously deluded. Some of them are so scared of vaccines that they prefer to give their children immunity to diseases the old fashioned way: By giving them the disease itself.

The usual way to do that is with a “pox party”: Wait until one child in your circle of anti-vax fanatics gets the chicken pox, and then bring all your kids over so they’ll be infected too. It’s okay, you know, because it’s natural.

But what if you don’t have any friends who have the disease? Via Radley Balko, the AP’s Erik Shelzig reports:

Parents fearful of vaccinations are being warned by a federal prosecutor that making a deal with a stranger who promises to mail them lollipops licked by children with chickenpox isn’t just a bad idea, it’s against the law.

Jerry Martin, U.S. attorney for the Middle District of Tennessee, said he was spurred by reports this week by KPHO-TV in Phoenix and WSMV-TV in Nashville about people turning to Facebook to find lollipops, spit or other items from children who have chickenpox.

“Can you imagine getting a package in the mail from this complete stranger that you know from Facebook because you joined a group, and say here, drink this purported spit from some other kid?” Martin told The Associated Press.

If you’re thinking this might be a good idea, let me see if I can change your mind. Maybe you’re not daunted by the fact that it’s illegal. (It’s a crime to send chickenpox through the U.S. mail for the same reason it’s a crime to send anthrax through the U.S. mail.) And maybe it doesn’t bother you to intentionally infect your child with a disease. And maybe you’re not going to concern yourself about other people who might catch the disease from your deliberately disease-ridden child. Heck, maybe you don’t even mind the fact that doctors say it won’t work — after all, they’re the ones who wanted to vaccinate your kids, right?

In that case, let me see if I can still head you off by telling you what I think the U.S. Attorney is hinting at when he dropped the word “purported” into that sentence: When a stranger on the internet sends you lollipops so that your child will lick them, it’s because he jerked off all over them. And now he’s jerking off at the thought of your child licking them.

I know that’s a disgusting thought, and probably only a handful of perverts are sick enough to get off on something like that. But by now, every single one of them has a website offering free lollipops.

One of my more useful sources of things to blog about is Ethics Alarms, where professional ethicist Jack Marshall regularly blogs about a variety of current events from sports to politics to economics. This alarms some of the lawyers who read my blog, because they say that contrary to what he’d have you believe, Marshall knows nothing about legal ethics.

My own opinion has been mixed. Sometimes I think Marshall has a good point, other times I think his reasoning is a bit muddled, and every once in a while, he says something that strikes me as downright hateful or xenophobic. A couple of days ago, however, he posted something that is, well, just horrifying.

The post is about killing civilians in a war, and it’s called Are Citizens of Warring Nations “Innocent”?

“Innocent” and “civilians” apparently go together like a horse and carriage, if one is to believe the cliché used with increasing regularity by journalists, bloggers and even elected officials[…] The exoneration of civilian citizens for the acts of their governments is a relatively new phenomenon, one happily endorsed by the habitually politically correct. It is untrue, and it is time to blow the whistle. Ethics foul.

Uh Oh. I’m sure there are people who start out by explaining that they’re not politically correct who don’t go on to say something truly awful, but that’s not the way to bet. Marshall continues,

Governments are the agents of their populace, and when they attack other nations and kill human beings, the citizens of those governments share in the responsibility.

“Governments are the agents of their populace”? On what planet? Not on this one. Not for most of recorded history. The tribes, city-states, and nation-states of our history have for the most part been ruled by a fairly small fraction of their population, often just an authoritarian ruler and his loyal security forces. That’s still true in a lot of places today.

Innocence, used in the sense of an innocent bystander to an event that in no way involves him, cannot fairly be used to describe the adult citizen of a country engaged in violent or destructive acts unless these act are completely unknown and unknowable to the citizen and the rest of the public as well.

I don’t understand how mere knowledge of a government’s actions makes one responsible for them. Many U.S. citizens disagree with the actions of our government, and it’s absurd to hold them responsible for everything the government does. Wouldn’t it make a lot more sense to say that people are responsible for the act they control or encourage? It doesn’t make sense to hold people responsible for things that are beyond their control.

Responsible governments fight wars on behalf of their obligations to a nation’s populace–for security, safety, to protect resources and important allies, or for important cultural principles and goals.

That maybe be true for responsible governments, but how many of those are there in the world? More to the point, however, no matter how legitimate and responsible a government is, the people it’s protecting can have a wide variety of values. Lots of people in the U.S. have opposed our war in Iraq since even before it started, and it makes no sense to hold them responsible for the war.

As the intended beneficiaries of a war’s objectives, citizens cannot responsibly assume bystander status. Moreover, citizens support their battling nations in many ways, including, in most cases, financially, but politically and spiritually as well. They also contribute their sons and daughters to the battlefields, however reluctantly.

Of course civilians who voluntarily contribute materially to a war cannot claim to be innocent, but that still leaves most of the rest of the populace. And it hardly makes sense to hold taxpayers responsible for what is done with money taken from them by force.

Civilian citizens are also accountable for the governments they allow to use their nation’s name, honor, reputation and resources on their behalf, as well as the acts of those governments, domestically and abroad.

Surely the key word in that last sentence was “allow.” Millions of people voted against Barack Obama, just as millions voted against George Bush before him. It makes no sense to hold a president’s opponents responsible for his actions. It makes even less sense to hold a tyrant’s subjects responsible for the outrageous acts of the tyrant. Oddly, Marshall disagrees even with that:

This is obvious in the case of a democracy, but it is true of autocratic governments as well. The German people were culpable for supporting the government of Adolf Hitler; to its credit, Germany has acknowledged this.

German people who did not support Hitler’s German government bear no moral responsibility for Hitler’s crimes. That doesn’t change just because the German government says otherwise. If surviving Germans from that time wish to accept responsibility for their own actions, they are welcome to, but Hitler didn’t speak for everybody then, and the German government doesn’t speak for everybody now.

And what about the Jews? By Marshall’s argument, since the German people were culpable for Hitler’s actions, then the 160,000 or so German Jews murdered in the Nazi holocaust must have had it coming, since they were part of the German people, at least until they died.

The argument of the “innocent citizens” advocates that a totalitarian regime can operate without the acquiescence of its people is demonstrably false: when a regime becomes truly intolerable, citizens rise up and end it.

Actually, that a totalitarian regime can “operate without the acquiescence of its people” is the definition of a totalitarian regime.

The citizens of Libya were not sufficient outraged by their government blowing a passenger airliner out of the sky to throw out their government, but they are trying to end it now.

There has probably never been a time during his reign when some of the citizens of Libya didn’t wish to end the rule of Muammar al-Gaddafi, but they’ve always lacked the power to do so. And in point of fact, they still lack the power to do so, which is why they need our help.

The Soviet Union perpetrated horrible offenses against human rights for decades, and the Soviet public acquiesced. (When I was in Russia after the Soviet bloc’s fall, I was amazed at how many Stalin admirers there were there still.) If a nation’s public will overthrow a government it concludes is intolerable, how can they be “innocent” of the conduct of a government they tolerate? 

They are not. They are accountable.

By Marshall’s argument, not only were the murdered German Jews responsible for Hitler’s actions in World War II, but the 3000 people who died in the terrorist attacks of 9/11 had it coming because they didn’t stop the U.S. government from engaging in whatever foreign policy activities so enraged Osama bin Laden. For that matter, by Marshall’s argument, Afghan women are responsible for the crimes of the Taliban because they did not overthrow it.

Marshall addressed the 9/11 issue after someone challenged him in the comments:

But an attack on civilians outside the boundaries of war becomes murder, so 9/11 isn’t really on topic, rationale or not. An attack on civilian targets during war, or civilians who are killed in the course of attacks on military targets, are not murder.

Let’s untangle the logic here: Because the people who attacked us on 9/11 weren’t involved in a war, the people they killed were innocent. However, if the the exact same attacks had killed the exact same people, but it had come from a recognized nation in a declared act of war, then the people who were killed were not innocent.

In Marshall’s world, apparently, whether or not you are an innocent victim of violence depends on whether or not the State Department recognizes the legitimacy of the government that sent the people who killed you. Somehow, your culpability or innocence depends entirely on the actions of other people. Or else Marshall just tried to squirm out of admitting a glaring error in his argument.

Getting back to Marshall’s main post:

The convenient myth that the citizens of warring countries are innocent bystanders has an unstated agenda behind it, of course. Requiring the U.S. military to calibrate its activities to place as few civilians at risk as possible is part of the effort to make warfare itself impossible…at least by governments that care about civilian casualties. The fact that following the imposed subsidiary objective of treating citizens as innocents often has the effect of prolonging a costly and bloody conflict and costing more American lives in the process is, intentionally I think, ignored.

In other words, according to Marshall, the idea that wars kill innocent people is just a myth that has been spread as part of a dastardly propaganda campaign by anti-war activists. That may be one of the most fucked-up things I’ve ever read on the Internet.

(Which is saying a lot.)

One of the tests I use to judge whether someone is morally serious is whether or not they are willing to accept the bad consequences of their proposed course of action. To pick an unrelated example, consider that many proponents of the Democratic cap-and-trade carbon rationing program denied that it would hurt the American coal-mining industry. Yet the whole purpose of the cap-and-trade program was to reduce consumption of carbon-emitting fuels, which would certainly include coal. These proponents of the cap-and-trade plan were just posturing, and had no intention of discussing the issue in a morally serious manner.

Marshall is doing the same thing here. By refusing to admit that wars kill innocent people or that citizens in a totalitarian government have no control over that government, Marshall is refusing the contront the bad consequences of war. This is morally unserious and intellectually dishonest.

If Marshall wants to argue against protecting foreign civilians from the hazards of an American attack, he should honestly accept the consequences of this attack, and make his argument that the death of civilians is a necessary trade-off.

(If we were in a movie in which one character wanted to go ahead with an attack despite the fact that innocent people could be killed, he might coldly utter the phrase, “You can’t make an omlet without breaking some eggs.” That’s a harsh thing to say when real human lives are at stake, but Marshall’s going one step further by refusing to admit that any eggs are involved.)

Marshall even seems to understand this when someone asks him in the comments about the practice of using children as human shields. Here’s his answer:

You may not like my answer: non-combatants, innocents, and 100% the responsibility of the regime that uses them in that way. It is the most depraved of all war tactics…I assume it is a war crime; if it isn’t, it should be. But it’s a tactic that can’t be allowed to succeed, or it will just encourage more.

I am almost certain that Marshall is right about this. As painful as it is to think about, in some situations it could turn out that attacking the target and killing the children is the lesser of evils since not attacking the target will encourage our enemy to march ever more children into the war zone. Of course, the other consequence of that unpleasant logic is that when we are initially contemplating the decision to go to war, we should realize that once we are committed, we may find ourselves forced into a situation where we end up killing children.

Anyway, for some reason, although Marshall understands the logic of innocence when it comes to children, he seems unwilling to believe that it can ever apply to adults. The position Marshall is advocating is the same sort of moral unseriousness that leads people to say we should throw someone in jail “for their own good.” We don’t throw criminals in jail for their own good. We throw them in jail for our own good, because we want them to stop harming us. Jail still sucks for the criminals who have to be there.

Getting back to the main post:

Citizens of every nation have an obligation to make ongoing efforts to learn what their government is doing in their name, on their behalf, with the results of their labor and resources. If their government engages in evil, they cannot shrug their shoulders, go about their daily lives as if nothing is amiss, and claim innocence when accountability comes due. This is especially true of democracies, but it is true of all citizens of all nations.

Again, by this argument, Nazi-era German Jews and Afghan women were responsible for the crimes of Hitler and the Taliban. Here in the real world, however, both groups were among the first victims.

Look, paying attention to what your government is doing is probably a smart idea. As much as we’d all prefer to work at our jobs, take care of our families, and socialize with our friends, we should probably expend some effort to keep track of what our government is up to, and to prevent them from following dangerous and evil paths which might lead to our becoming some other country’s innocent foreign civilian casualties. In that sense, we do have some responsibilities. But it doesn’t mean we’re culpable for everything our government does in our name.

Perpetrating the myth of the innocent civilian aides and abets all varieties of bad governments–the incompetent, the corrupt, the profligate, the repressive, the brutal and the violent. It is a dishonest and unethical concept that does real, extensive harm. We need to stop pretending it is true, and to protest any time we hear or read someone claiming that it is.

It is dishonest, unethical, and morally bankrupt to pretend that war does not kill innocent people.

Unlike Marshall, the U.S. military has a pretty good understanding of this reality of war. The Marines in particular have done a lot of hard thinking about this problem, since they are often tasked with jobs such as feeding hungry children while simultaneously fighting guerilla soldiers trying to infiltrate their position.

One of the biggest problems they expect to face in the future is what they sometimes call the “strategic corporal,” which refers to the kinds of things that can go wrong when modern fast-tempo warfare takes place in the modern information age. Because there isn’t much time for soldiers in the field to pass decisions up the chain of command, the military is going to have to depend more and more often on low-ranking officers to make decisions that used to be made higher up. With modern weapons systems, this means that a corporal in charge of a squad could easily end up accidentally committing a monstrous atrocity.

In the modern world of Facebook, YouTube, and Twitter, word of that atrocity could be all over the planet in hours, changing public opinion, weakening the support of our allies, rallying our enemies against us, and triggering terrorist attacks. So although taking steps to avoid civilian casualties could endanger U.S. soldiers, not taking steps to avoid civilian casualties could also endanger American lives.

And sticking our heads in the sand by denying the reality of innocent casualties won’t do anything to help the situation.

Someone broke into our 12-year-old Dodge Neon. I can’t really say when. It’s our second car, and it’s been parked in the street for the last week or so. I just happened to drive by it yesterday morning and noticed the mess.

And actually, “broke into” maybe be overstating it. The driver’s side window was shattered, but I don’t think there’s anything missing. The radio was still there, and the glovebox seemed no more disorderly than before. There’s some crap in the car—empty boxes and a table lamp that I was moving—but it didn’t look disturbed. Maybe someone just threw a rock. Or maybe I should be hunting for a bullet hole…

Anyway, I put some cardboard on the seat to protect myself from all the glass and drove the car to the body shop I use, and they sent me to Inter Auto Glass near Central and Irving Park.

They found me a used window for $50, including installation. They even cleaned all the broken glass out of the passenger compartment, which I wouldn’t have considered part of the service.

I’ve been meaning for a while to start writing about some local businesses that I like, and these guys seemed like a good place to start.

Inter Auto Glass
5621 W. Irving Park Road
Chicago, IL  60634

I’ve been commenting on the President’s State of the Union address on and off for a few years now. I do it for three reasons: (1) to force myself to read the actual speech so I feel more involved in the civic process, (2) to pad out the blog, and (3) because everyone else is doing it (probably for reason 2). I’ve never bothered to look at the opposition response before, but blogging has been kind of thin this year, and picking apart another speech seemed like an easy way to get a little more content up.

So I Googled “state of the union republican response”, but all Google could find was last year’s Republican response. The new one hadn’t been indexed yet. Not a problem: I’ll just search one of the news sites…unless…

Seriously, does anybody really pay attention to the opposition response? It’s given by someone that the last election’s losers are hoping we’ll like better than the guy they ran for President last time, and nothing he says matters, because unlike the president, he’s not in a position to do anything about it. Most people probably don’t even know that Virginia Governor Bob McDonnell gave the speech. I know I wouldn’t if I hadn’t decided to write about it.

So…when I wrote my review of the Republican response to the State of the Union, I went ahead and used last year’s speech by Louisiana Governor Bobby Jindal. So far, no one has noticed.

(Probably because no one cares, and also because no one reads my blog.)

[Note: In retrospect, it was stupid of me to deceive my readers in order to test them. Sorry about that. I don’t think I’ll be doing that again…except maybe on April Fool’s Day.]

Anyway, here’s my review of the real 2010 Republican response to the State of the Union, as delivered by Governor Bob McDonnell and transcribed by CNN (as far as you know, because you really don’t care enough to check. I wouldn’t.):

Thank you very much. Thank you.

Good evening. I’m Bob McDonnell. Eleven days ago, I was honored to be sworn in as the 71st governor of Virginia. I’m standing in the historic House Chamber of Virginia’s Capitol, a building designed by Virginia’s second governor, Thomas Jefferson.

It’s not easy to follow the president of the United States. And my 18-year-old twin boys have added pressure to me tonight by giving me exactly 10 minutes to finish before they leave to go watch “SportsCenter.”


I’m joined by fellow Virginians to share a Republican perspective on how to best address the challenges facing our nation today.

We were encouraged to hear President Obama speak this evening about the need to create jobs. All Americans should have the opportunity to find and keep meaningful work, and the dignity that comes with it.

As I’ve said before, too much of a focus on jobs makes for bad economic policy. Jobs matter, but so do things like productivity and producing things people actually want.


Many — many of us here tonight — and many of you watching — have family or friends who have lost their jobs. In fact, 1 in 10 Americans is unemployed. That is unacceptable.

I usually let this sort of thing pass, but just for the record, 1 in 10 Americans are not unemployed. Unemployment figures are given as a percentage of people in the labor force, which is everybody who wants to work, whether they are working or not. Since about half of all Americans are too young to work, retired, disabled, institutionalized, or just don’t want to work, our current 10% unemployment rate means that about 1 in 20 Americans is unemployed.

Here in Virginia, we’ve faced our highest unemployment rate in more than 25 years, and bringing new jobs and more opportunities to our citizens is the top priority of my administration.

Good government policy should spur economic growth and strengthen the private sector’s ability to create new jobs.


We must enact policies that promote entrepreneurship and innovation so America can better compete with the world. What government should not do is pile on more taxation, regulation and litigation that kill jobs and hurt the middle class.

Man, the right wing really is obsessed with tort reform…

It was Thomas Jefferson who called for “a wise and frugal government which shall leave men free to regulate their own pursuits of industry and shall not take from the mouth of labor the bread it has earned.” He was right.

Today, the federal government is simply trying to do too much. Last year, we were told that massive new federal spending would create more jobs immediately and hold unemployment below 8 percent.

In the past year, more than 3 million people have lost their jobs, and yet the Democratic Congress continues deficit spending, adding to the bureaucracy, and increasing the national debt on our children and our grandchildren.

The amount of debt is on pace to double in five years and triple in 10. The federal debt is now over $100,000 per household. This is simply unsustainable.

The president’s partial freeze announced tonight on discretionary spending is a laudable step, but a small one. The circumstances of our time demand that we reconsider and restore the proper limited role of government at every level.


Without reform, the excessive growth of government threatens our very liberty and our prosperity.

In recent months, the American people have made clear that they want government leaders to listen and then act on the issues most important to them. We want results, not rhetoric. We want cooperation, not partisanship.


There is much common ground. All Americans agree that we need health — health care system that is affordable, accessible, and high quality. But most Americans do not want to turn over the best medical care system in the world to the federal government.

Republicans in Congress have offered legislation to reform health care, without shifting Medicaid costs to the states, without cutting Medicare, and without raising your taxes.

And we will do that by implementing common sense reforms, like letting families and businesses buy health insurance policies across state lines and ending frivolous lawsuits against doctors and hospitals that drive up the cost of your health care.

Allowing insurance to be sold across state lines is a great idea. It’s a good way to increase competition in the health insurance market, and it will cost very little to implement. Also—and this is a little unusual these days—it’s completely within the enumerated powers of the federal government since it’s a classic example of interstate commerce.

And our solutions aren’t 1,000-page bills that no one has fully read, after being crafted behind closed doors with special interests. In fact, many of our proposals are available online at solutions.gop.gov, and we welcome your ideas on Facebook and Twitter.

And still, no one has read them…


All Americans agree that this nation must become more energy independent and secure.

No they don’t. We don’t have to be energy independent any more than we have to be automobile independent, clothing independent, or consumer electronics independent.

We are blessed here in America with vast natural resources, and we must use them all.

Why should we use our own natural resource if we can get them cheaper from somewhere else?

Advances in technology can unleash more natural gas, nuclear, wind, coal, alternative energy that will lower your utility bills.

Here in Virginia, we have the opportunity to become the first state on the East Coast to explore for and produce oil and natural gas off-shore.


But this administration’s policies are delaying off-shore production, hindering nuclear energy expansion, and seeking to impose job-killing cap-and-trade energy taxes. Now is the time to adopt innovative energy policies that create jobs and lower energy prices.

Uh, I’m pretty sure we can’t increase the number of people working on energy production without raising the costs. If energy gets cheaper, someone’s going to be out of a job.


All Americans agree that a young person needs a world-class education to compete in the global economy. As a young kid, my dad told me, “Son, if you want a good job, you need a good education.” Dad was right, and that’s even more true today.

The president and I agree on expanding the number of high-quality charter schools and rewarding teachers for excellent performance. More school choices for parents and students mean more accountability and greater achievement.

Since the president opposes the charter schools in D.C., you might want to check back with him on that.

A child’s educational opportunity should be determined by her intellect and work ethic, not by her ZIP Code.


All Americans agree that we must maintain a strong national defense. The courage and success of our armed forces is allowing us to draw down troop levels in Iraq as that government is increasingly able to step up.

My oldest daughter, Jeanine, was an Army platoon leader in Iraq, so I am personally grateful for the service and sacrifice of all our men and women in uniform, and a grateful nation thanks them.


We applaud President Obama’s decision to deploy 30,000 more troops to Afghanistan. We agree that victory there is imperative for national security.

And we’ll know we’re victorious how? What would achievable victory look like?

But we have serious concerns over the recent steps the administration has taken regarding suspected terrorists. Americans were shocked on Christmas Day to learn of the attempted bombing of a flight to Detroit. This foreign terror suspect was given the same legal rights as a U.S. citizen and immediately stopped providing critical intelligence.

He’s not getting the same legal rights as a U.S. citizen, he’s getting the same legal rights we give to everyone who is accused of a crime. The only way it would make sense not to give him legal rights is if we weren’t going to put him on trial. I’m not ready to live in a country that summarily imprisons people without a trial.

Look, if they start attacking us with such fury and in such numbers that our justice system can’t keep up, then of course we can hold them without a trial. That’s a war. But one guy trying to kill some people? That’s not a war. That’s Saturday night in every big city in America. We handle those cases by the tens of thousands every year. The underwear bomber is just one more attempted murderer.

Also, “critical intelligence”? The terrorist leadership trusted critical information to a guy who was willing to put a bomb in his underwear?

As Sen.-elect Scott Brown has said, we should be spending taxpayer dollars to defeat terrorists, not to protect them.

That would be those 30,000 troops you mentioned earlier.


Here at home, government must help foster a society in which all our people can use their God-given talents and liberty to pursue the great American dream. Republicans know that government cannot guarantee individual outcomes, but we strongly believe that it must guarantee equality of opportunity for all.

That opportunity exists best in a democracy which promotes free enterprise, economic growth, strong families, and individual achievement.

Many Americans are concerned about this administration’s effort to exert greater control over car companies, banks, energy, and health care, but over-regulating employers won’t create more employment, overtaxing investors won’t foster more investment.

That paragraph is dead-on.

Top-down, one-size-fits-all decision-making should not replace the personal choices of free people in a free market, nor undermine the proper role of state and local governments in our system of federalism. As our founders clearly stated, and we governors clearly understand, government closest to the people governs best.

Correct again. Where were you during the previous administration?


And no government program can ever replace the actions of caring Americans freely choosing to help one another. The scriptures say, “To whom much is given, much will be required.” As the most generous and prosperous nation on Earth, it is heartwarming to see Americans giving much time and money to the people of Haiti.

Thank you for your ongoing compassion.


Some people say they’re afraid that America is no longer the great land of promise that she has always been. They should not be.

America will always blaze the trail of opportunity and prosperity. America will — must always be a land where liberty and property are valued and respected and innocent human life is protected.

Government should have this clear goal: Where opportunity is absent, we must create it. Where opportunity is limited, we must expand it. Where opportunity is unequal, we must make it open to everyone.


Our founders pledged their lives, their fortunes, and their sacred honor to create this great nation. Now we should pledge as Democrats, Republicans and independents — Americans all — to work together to leave this nation an ever better place than we found it.

As usual, I suspect that “work together” is politician-speak for “do it my way.”

God bless you, and God bless this great land of America. Thank you very much.

And that’s it. Next year, I won’t play games with the opposition response. Probably because I will forget they even have one.

Miami Criminal Defense Lawyer Brian Tannebaum asks us “Why do conservatives apologize for the government?”

But there is a more disturbing trend in conservative thought when it comes to criminal justice. Maybe it’s not a trend, just more visible with the advent of blogs and online comments on newspaper websites, but it appears that conservatives have abandoned their desire for limited government.

? That cracks me up every time I read it. Yes, Brian, the Bush Administration did not exactly make its mark by shrinking the government.Appears

I say this because more and more I read comments in response to innocent people being released, charges being dismissed, and not guilty verdicts that are written by conservatives apologizing for not rooting for the government.

“Hey listen, I’m a conservative, and I think they overcharged this guy.”

“I think the government went way overboard in this case and I’m a conservative.”

“I can’t believe the prosecutors are wasting their time with this case, and I’m a conservative.”

So, please, tell me, what am I missing?

That’s not an apology. That’s strengthening the credibility of their opinion by pointing out that it goes against their law-and-order predisposition. To see how this works, let’s try substituting a different political persuasion. Which of the following statements carries more rhetorical weight?

“Hey listen, I’m a conservative, and I think they overcharged this guy.”

“Hey listen, I’m a liberal wine-drinking criminal defense lawyer, and I think they overcharged this guy.”

The first one is surprising, and it gets your attention. The second one, not so much.

My understanding is that conservatives, while chest beating their “law & order” philosophy that has turned our criminal justice system into political talking points for elected officials, believe in limited government and believe that a government with too much power is a “bad” thing.

So why do conservatives apologize when they believe the government has gone too far in the criminal justice context?

Are they hypocrites, or am I confused?

Well, I don’t know about Brian, but I’m certainly confused. How is it inconsistent for conservatives who hate big government to lament clear cases of government going wrong?

I can’t speak for conservatives, but I think I might have an understanding of how libertarian conservatives see the situation, and why it confuses other people.

The key insight is that when (libertarian-ish) conservatives say they want small government, they don’t mean they want government to be smaller in general. Rather, “small government” is shorthand for a government that limits itself to a few critical tasks, such as national defense, crime prevention and criminal justice, and a civil court system for enforcing contracts and handling torts.

Libertarian conservatives are not offended when the government wields immense powers in the execution of these tasks because these tasks are the defining reason for having a government. If not for the need for national defense and criminal and civil justice (and a few other things), there’d be no need for a government at all.