Affirmative Action Is Down (but Not Out?)

If you were surprised when you saw this news, you haven't been paying attention to the Supreme Court for the last, oh, 15 years or so. Yesterday, in a 6-3 decision (bet you can't guess which 6, and which 3!) in the case of the University of North Carolina, and 6-2 in the case of Harvard—Justice Ketanji Brown Jackson recused herself because she had been a member of Harvard’s board of overseers—the Court significantly curtailed the use of race as a factor in college admissions.

Obviously, "significantly curtailed" is not the same as "eliminated." The extremely verbose 237-page decision contains two exceptions to the general rule of "no consideration of race." The first of those is that the service academies are allowed to continue using race-based admissions, just as they were before yesterday's decision, because of the academies' "potentially distinct interests." We concede that we don't understand the motivation here, unless it's just "Anything the military does is automatically good."

The other exception is that while universities are no longer allowed to weight a student's race as a distinct factor, "nothing in this opinion should be construed as prohibiting universities from considering an applicant's discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise." What that means is that, for example, Harvard cannot decide that it's going to admit 100 Black students this year no matter what, but it can read a Black student's essay that talks about discrimination they have faced, and can use that as part of their admission decision.

Such essays are exactly why carve-out #2 was written into the decision. If admissions were required to be entirely color-blind, then it would be nearly impossible for universities to require essays, and it might possibly forestall letters of recommendation, too. Heck, it might even be necessary to keep the names off the applications. There's just no pragmatic way to keep the student's racial background completely out of the equation.

The responses of the politicians yesterday were entirely what you would expect. Let's start with Joe Biden, who was furious about the decision. "This is not a normal court," he said. "The truth is, we all know it, discrimination still exists in America ... today's decision does not change that." He said he would work with the Department of Education to develop new ways of incorporating diversity into admissions decisions.

And now let's turn to the Republicans, starting with Donald Trump:

This is a great day for America. People with extraordinary ability and everything else necessary for success, including future greatness for our country, are finally being rewarded. This is the ruling everyone was waiting and hoping for and the result was amazing. It will also keep us competitive with the rest of the world. Our greatest minds must be cherished and that's what this wonderful day has brought. We're going back to all merit-based—and that's the way it should be!

Good to see that the former president is such a fan of merit-based admissions. After all, his admission to Penn was undoubtedly 100% merit-based, right?

And now, Mike Pence:

I'm grateful to see that the conservative majority, that we helped build on the Supreme Court, bring an end to most of affirmative action. Look, we want to live in a color-blind society. And I will tell you—there may have been a time, 50 years ago, when we needed to affirmatively take steps to correct long-term racial bias in institutions of higher education. But, I can tell you, as the father of three college graduates, um, those days are long over. And I'm grateful today that the Supreme Court took us one step back to that America that will judge every man and woman on the content of their character and their own achievement, and leave race out of consideration for admission to institutions of higher learning.

We are not sure what causes us to roll our eyes harder, the notion that Pence had anything to do with seating those three conservative justices between 2017 and 2021, or that the whitest man in the country would presume to declare that we now live in a post-racial world.

And finally, one more, from Sen. Ted Cruz (R-TX):

Today, the Supreme Court upheld the 14th Amendment rights of Asian-Americans and ruled that Harvard and the University of North Carolina's explicit and egregious policies of racially discriminating against Asian-Americans and other students are unconstitutional.

We have two things to say here. First, either Cruz does not read the statements sent out under his name, or he does, and yet he—an alleged super genius—doesn't know that Asian American is unhyphenated when used as a noun, and hyphenated only when used as an adjective (i.e., "Asian Americans make up the majority of enrollees in Asian-American history courses."). Second, while we do not doubt that many Asian-American activists legitimately opposed Affirmative Action in admissions, anyone who thinks that Cruz or any other high-ranking Republican was motivated by their interest in justice for Asian Americans is fooling themselves. The Senator is fighting the culture wars on behalf of his white constituents, and is using Asian-American people as an excuse to make that socially acceptable.

Please note that our disdain for the Republican talking points does not mean that we are some sort of Affirmative Action fanatics. We are well aware that some number of highly qualified students are left on the outside because there are only so many spots available at desirable universities. We are similarly aware that Affirmative Action admissions sometimes subject students to academic challenges for which they are not fully prepared, leading to disproportionately high dropout rates. That said, when thinking of Affirmative Action, we often think of the observation about democracy used (but not originated) by Winston Churchill: "It is the worst form of Government except for all those other forms that have been tried." In other words, Affirmative Action is the worst solution to educational diversity, except for all the other solutions that have been tried.

In any case, as with Dobbs, a decision that is ostensibly the "final word" from the Supreme Court is going to be far from the final word, and one of these days this is going to end up right back in the Supremes' lap, in one form or another. To start, the Biden administration realized this day was coming, and he actually already had the Dept. of Education and other federal bureaucracies working on alternative ideas for how to promote diversity in education.

Further, the universities themselves have been known, on occasion, to employ some clever people. There are many ways to use admissions to promote diversity, even if race is not an explicit factor. For example, studies have shown that a student's family's net worth—information that universities already have, due to financial aid—is a pretty good indicator of whether the student comes from an underserved community. Looking at things like ZIP Codes, whether the applicant is a first-generation student and whether the applicant is a first-generation immigrant, also helps to create a diverse student body. It won't be as easy as it was before yesterday's ruling, and colleges will surely be less diverse overall, but SCOTUS' decision isn't going to completely upend things, either.

Meanwhile, civil rights groups are getting ready to take on a rather different form of affirmative action, namely legacy admissions. It's not a secret that the children and grandchildren of graduates, particularly at Ivy League universities, get preferential admissions treatment. It's also not a secret that this is primarily to keep alumni donations flowing. The civil rights activists argue that if minority students aren't allowed preferential treatment, nobody should be allowed preferential treatment. Assuming the Supreme Court takes the inevitable case, it will be interesting to see what, for example, Brett Kavanaugh (Yale Class of '87), grandson of Everett Edward Kavanaugh Sr. (Yale Class of '28), has to say about that.

On the other side of the equation, right-leaning legal activist groups are likely to seize on Thursday's victory in order to take the war to other fronts. For example, there are many laws and policies that were not designed to be discriminatory (or that were, but the people involved deny it). Often, the way these laws and policies are challenged in court is to ignore intent, and instead to demonstrate a racially disparate impact. Conservative legal groups are eager to put an end to that line of legal action.

Anyhow, that's the news out of the Supreme Court for the day. It's expected that they'll be announcing decisions on student loans and websites for gay weddings today, so that the justices can then hightail it out of Washington and let others pick up the pieces. (Z)

DeSantis Wants to Shutter Four "Agencies"

Gov. Ron DeSantis (R-FL) is trying desperately to create contrasts between himself and Donald Trump. And the Governor believes that what Republican voters really want is a president who will push for far-right policy changes. Yesterday, he was on Fox, and was asked if there are any federal agencies he would like to abolish. DeSantis, who was clearly expecting the question, said there are four of them. And, to his credit, he even remembered which ones: Education, Commerce, Energy and the IRS.

Two of these are not a surprise. Conservatives in general, and DeSantis in particular, believe that the Department of Education is somehow responsible for indoctrinating millions of students into... something. Socialism, Critical Race Theory, Satan worship, something like that. Its real job is to collect data on how well the nation is educating its students and to oversee the disbursement of various forms of aid. It's worth noting that DoEd is also the smallest of the Cabinet agencies, and its budget (around $100 billion annually) is roughly 10% of that of the Department of Defense (nearly $1 trillion annually).

Meanwhile, many conservatives seem to believe that the Department of Energy has something to do with fighting global warming. That's woke, and so it's bad. It's also not what the DoE actually does; as we have noted many times, the primary job of the DoE is to oversee the nation's nuclear stockpile. We assume that DeSantis knows that, and that he's just pandering to those who are ignorant of the Department's true purpose. We also assume that DeSantis does not intend, if he becomes president, to leave the nukes unsupervised. Ipso facto, even if Congress went along with plans to kill the DoE (it wouldn't), then it wouldn't be a meaningful change. The job would just be placed in the hands of some other agency.

As to Commerce, we admit we do not understand what conservatives' beef is with that agency. Its job is to promote American business interests, both domestically and abroad. It was created in the early 1900s, and it was fleshed out by the very conservative and very pro-business Herbert Hoover, who served as secretary for nearly 8 years. This would seem to be something that the pro-business party would approve of, but Commerce was also on the list of agencies that Rick Perry wanted to shut down. Clearly there is something about it that right-wingers don't like; if any reader knows, we'd appreciate the information.

And finally there is the IRS. That's not really an agency, it's a subdivision of the Department of the Treasury. It's not a secret that Republican politicians are anti-IRS because the donor class is anti-paying taxes. It's also the case that, right now, Republican politicians have succeeded at making the IRS a part of the culture wars, basically because Joe Biden and the Democrats gave the IRS more money to go after rich tax cheats, and anything Biden and the Democrats do is socialist, anti-American, woke, etc., so the IRS is now the antichrist.

In the end, the current anti-IRS shtick requires a fair bit of sleight of hand, and also requires Republican-leaning voters not to pay too much attention to the facts of the situation. The problem is that it's one thing to say "we need to take back the money Joe Biden gave to the IRS." It's another thing entirely to say that the IRS should be shut down, since taxes have to be paid somehow. DeSantis has a solution to that, however: A flat tax.

Of course, presidential candidates have run on a flat tax in the past, and have gotten nowhere with it. Eventually, even most of the folks who are on board with the Republican Party in general figure out that a flat tax means that rich people pay less, which in turn means that non-rich people pay more. None of the other flat taxers have been able to sell the idea, and there's no reason to think DeSantis is any different.

And that brings us to the ultimate point of this item. We haven't the faintest idea who DeSantis thinks he's impressing with these proposals—proposals that, by the way, have zero chance of getting past Congress, even if he becomes president. Maybe the flat tax bit is a bone for the surviving Koch, in hopes that he will back DeSantis (see below). But in general, the Trumpy voters that DeSantis is trying to attract care little about wonky stuff like getting rid of the Department of Energy. And the more that the Governor lays out his agenda, the more it becomes clear that he doesn't really understand what drives Trumpism. (Z)

Sleaze Report, Part I: Ron DeSantis

Several times, we have pointed out that one reason it is necessary to hold Donald Trump to account is that politicians are learning, and have learned, the lesson that if the president does it (or the wannabe president does it), it's not illegal. Case in point: Ron DeSantis.

DeSantis is not president yet, and is not particularly close to becoming president. And yet, the list of legal and ethical breaches is already quite long:

• He accepted the gift of an expensive golf simulator from a wealthy supporter.
• He transferred money from his state campaign PACs to his federal campaign PACs, in contravention of campaign laws.
• Similarly, he is making a mockery of rules that prohibit coordination between candidates and super PACs.
• The day after launching his campaign on Twitter, he signed legislation that will benefit Elon Musk.
• He is using staffers paid by the state of Florida to raise money and handle PR for his federal campaign.
• He is using state funds for stunts meant to promote his presidential bid (e.g., the immigrant flights)
• He has been accused of tying discretionary funding in Florida to presidential endorsements. In other words, state legislators who endorse DeSantis for president get extra money, whereas those who endorse Donald Trump get their funding slashed.

Can there really be any question what will happen if DeSantis actually ends up in the Oval Office? If Donald Trump is held accountable for his misdeeds, then at very least it will give future shady presidents some pause, while empowering the DoJ and other authorities to do what they need to do when and if action is required. (Z)

Sleaze Report, Part II: Biden's Iran Envoy Suspended

Rob Malley is the U.S. special envoy on Iran, at least for now. However, he has been suspended without pay and his security clearance has been temporarily revoked, pending an investigation. At question is Malley's alleged mishandling of classified materials. During the suspension, Abram Paley is serving as acting Special Envoy for Iran.

There is virtually nothing else known about the case, including whether Malley is facing any sort of criminal liability. Malley claims to be in the dark about what he might have done wrong, and says that he is confident he will be exonerated. Of course, if you don't know what rule(s) you broke, it's rather hard for you to say for certain you didn't break those rules.

Time will tell how this process plays out, but it certainly appears to be evidence that the system is working. That is to say, Malley did... something, and that something was brought to the attention of the State Department. State shut down Malley's access, to make sure no further damage would be done, and launched an investigation. It will either prove to be much ado about nothing, or it will be found that Malley blew it and he can't have his clearance or his job back. He might even suffer some sort of civil or criminal penalty.

That said, there is zero chance that the enablers of Donald Trump do not glom onto this. If Malley is cleared, the line will be: "See? Two-tiered system of justice." If Malley gets popped, it will be: "See? Everyone does it." Making things even easier for the Trump apologists is that Malley's alleged misbehavior not only involves classified documents, it involves classified documents about Iran—i.e., the subject of the now-infamous conversation recorded at Bedminster.

Of course, if Malley is indicted, tried, convicted, and imprisoned, Trump's apologists will have a harder time claiming: "When other people did what Trump is accused of doing, nothing happened to them."

In any event, everyone is going to be keeping an eye on the outcome here. Meanwhile, consider how things might have unfolded if Donald Trump was in the White House. Would there be an investigation? If so, would we know about it? Doubtful on both counts. (Z)

Sleaze Report, Part III: Trump SPAC Investors Charged

Readers will recall that the circumstances under which Donald Trump's boutique social media platform was financed were dubious, to say the least. The brief version is that people gave money to a special purpose acquisition company (SPAC), Digital World Acquisition Corporation, with the normal understanding that the SPAC would seek out the best vehicle for the funds. However, it appears that Digital World had a secret arrangement all along to buy Truth Social at a much higher valuation than supported by the platform's fundamentals. That's not legal.

Yesterday, the feds arrested three men who are alleged to have been part of the scheme—Michael Shvartsman, Gerald Shvartsman and Bruce Garelick. Between them, they are accused of collecting more than $22 million in illegal profits. They were arraigned yesterday afternoon, and are reportedly dead to rights.

Thus far, there are no charges against Trump, and there's no public evidence he knew about the scheme. That said, if he is eventually charged with wrongdoing here, it won't be too much of a surprise. After all, as the "author" of The Art of the Deal, he should have had some awareness that there was a noticeable odor emanating from this whole arrangement. And if he didn't bother to check, one might argue that is negligence to the point of being criminal.

But thus far, at least, Trump is in the clear. And he might also be done with Truth Social in the near future. As part of the deal, he promised exclusive rights to his utterances for a period of time. However, that window of exclusivity expires soon, and Trump insiders say he might well return to Twitter in the near future. He may not be the shrewdest mind in the history of American capitalism, but he certainly knows enough to be able to tell that 86.5 million followers (Twitter) is more than 5 million (Truth Social). Needless to say, if he leaves Truth, it will not survive for long thereafter. (Z)

I, The Jury, Part VI: More on Courtroom Behavior

Today we present some more reader-juror experiences focused, in particular, on the behavior of people in the courtroom.

C.J. in Boulder, CO, writes: I'm certain what my experiences were will just be echoes of others, but I can't resist.

So, point 1: Attorneys are far too often narcissistic idiots. I was empaneled on a civil jury in Boston long ago. While the civil case was state law, the case was being heard in a federal courtroom as sort of overflow. We had the judge who had presided over Boston's school desegregation case. The case was medical malpractice: A fellow with a 6th-grade education agreed to spinal surgery unaware (he claimed) that he had been warned he might be impotent afterwards. So the plaintiff's attorney gets up and wheels over a model of the spine and nervous system and starts to lecture on medicine. This only went maybe a minute before the judge called on counsel to approach the bench. He clearly gave a pretty stern warning to this attorney that he was to let his expert witnesses talk about medicine and not for him to grandstand based on his readings on spinal surgery. Chastened, the attorney came back, rolled his display back away from the jury, and then gave a far briefer introduction to his case.

Second example: I had the privilege of serving in a jury pool in federal court in L.A. (downtown). Back then, you were in the pool for a month unless picked on a jury, and most days that month I had to drive down the Pasadena freeway to park near Olvera Street to get to the courthouse. It so happened that a fellow I met in the jury pool was a scientist working at JPL (I was a postdoc at Caltech); it seemed like we ended up going to all the same jury selections. One was a case of age discrimination. The plaintiffs' attorney had already blown through all save two of his peremptory challenges when I came up. "What do you do?" "I am a postdoctoral scholar at Caltech." A couple other questions, and he looked pained. The next fellow up was... the guy who was a scientist at JPL "What do you do?" "I do scientific work at the Jet Propulsion Laboratory" "And what did you do before that?" A small smile crept across his face: "I was a postdoc like that other guy." The attorney gambled and used those last two challenges to kick us off, and he was rewarded with a couple of blue-collar jurors. But I was kind of annoyed (after all, if I was not picked for a jury, I'd be coming downtown for a few more weeks). The next day I saw this attorney going out for lunch and I ran after him. "Why did you kick the two of us off the jury?" He launched into a story about how he lost a case where an engineer had been the foreman. He questioned the foreman after the verdict to see how he had lost and said that the foreman recounted some of the evidence. "But what about XXX?" asked the attorney. The foreman supposedly slapped his forehead and said "You're right! We forgot about that." The attorney's view was that therefore engineers were untrustworthy. My view of his story was a bit different: This lawyer didn't know how to lay out his case so that the salient points were clear.

Somehow the possibility of an egomaniac representing Trump seems plausible... and that might not go well.

As an aside, it is very clear to me, and I suspect most jurors, that the attorneys do not want juries to explore possibilities; they want a black-or-white choice.

Point 2: Juries need an adult in the room. I think a few folks have kind of mentioned that, but here goes my experience. This was the civil case involving spinal surgery. The judge read off a list of points that had to be cleared for us to find for the plaintiff. OK, off to the jury room. We walked in, chose a foreman, and immediately everybody was wanting to vote on finding for the plaintiff. I objected—we had a series of questions to answer. A lot of blank stares. We asked the bailiff if we could get a written version of the instructions. Nope; we marched back into court where these were read to us again (and we were not allowed to take notes in this courtroom). So our deliberations got a bit more solid once this was laid on us a second time, and one of those points proved to be impossible to agree to, so the defense won.

Point 3: Juries can surprise you. In that same case, while we found for the defendant, we were also pretty annoyed that the doctor had clearly failed to communicate with his patient. So we asked the bailiff if we could have a statement read into the record. He wasn't sure, but said to write it out and he'd take it to the judge. After we gave our verdict, the bailiff gave the judge the note. The judge looked at it, handed it back to the bailiff and told him to read it aloud. So we got our opportunity to point out the flaw in the doctor's behavior... which, being in the record, might have had an impact down the road should that doctor face another similar case.

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W.L. in Pasadena, CA, writes: About 25 years ago I served on a criminal jury in downtown L.A. and the trial had an unusual situation. A young man in his twenties was accused of stealing a car in Hollywood, leaving the scene of an accident after hitting a van, fleeing an officer, and possession of drugs and drug paraphernalia.

The biggest surprise was that the defendant had chosen to represent himself. At the start of the trial the judge told the jury that a public defender was seated in the courtroom and would remain throughout the trial. If at any point in the trial the judge decided that the defendant could not (or should not) represent himself, then he would have the public defender take over. As it happened the judge did not intervene and the defendant continued to represent himself to the end of the trial. In my opinion it was a big mistake for the defendant as he did not understand the role of a defense attorney, did not ask good questions, nor give a cohesive summary argument as to his innocence.

A second surprise was that I was selected for the jury at all as I had stated that I had a Ph.D. in Physics and was a scientist at a local well known institution. I really thought this would disallow me as it had on prior and later jury duty calls. Usually I was dismissed by the defendant's attorney, but in this case I think the defendant did not understand my educational background. However, ironically, I believe my selection played a role in deciding in his favor one of the four charges. The witnesses were the owner of the car, the driver of the van, and the police officers who made the arrest, and, of course, the defendant. The actual courtroom trial presentations took about a day and a half and the jury met on the third day.

My fellow jurors were from all walks of life and all backgrounds, as is typical in very diverse L.A. County, only a couple had a college degree, and none a graduate education. We deliberated for a few hours and agreed that he was guilty on three of the counts—it was obvious that he was in the stolen car when caught, the van driver witnessed him fleeing after the accident, and the police officers identified him as the person they chased and arrested. However, most of the jury thought he was also guilty on the charge of possession of drugs and drug paraphernalia. In the trial it was stated that these items were in a bag in the car. Most jurors believed that having a bag in the car made him guilty. I argued that it had not been proved, as neither the police nor the prosecutor had provided any evidence that it was his bag (it had no ID nor were fingerprints or DNA—this is pre-DNA analysis—presented). It could well have belonged to the owner of the car. Although the car owner stated that it was not his bag, he might have lied. After a bit more discussion the jury voted in favor of not guilty on the drug charge.

The lessons from my experience are: (1) do not defend yourself, (2) do not assume that a highly educated person is a poor choice for a juror, (3) if you are obviously guilty, seriously consider a plea bargain, and (4) jurors (and therefore juries) are not always logical—but from other stories printed on this site this last point seems obvious.

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S.B. in Los Angeles, CA, writes: I am a veteran prosecutor in a large metropolitan jurisdiction in California. One of my first cases was unlawful possession of cocaine base. The judge and the defense attorney had been assigned to the same court and knew each other pretty well. During the trial the judge started sustaining defense objections that were simply wrong. (I'm not being partisan, I looked it up after the trial!)

At one point the judge sustained a defense objection when I asked the police officer if the amount of cocaine base recovered from the traffic stop was a "usable amount." I was dumbfounded because that's actually one of the listed elements the jury has to find before they can convict on this charge. I was young and still working on my poker face so the judge saw my look as I paused trying figure out a workaround. Before I could proceed he then said in front of the full jury, "Mr. XXXXX, would you like me to take a recess so you can go down to your office and ask what you should do next?" Again, still working on my poker face, I scowled at the judge and said "No!" and finished what I could with the officer. Unbeknownst to me at the time, the bailiff had called the assigned Calendar Deputy DA (DA supervisor) for that courtroom and told her the judge was beating up on the "baby DA" in trial there. At the break, outside the presence of the jury, she came up with the California Jury Instructions Code book and followed him around showing him usable amount was an actual element that had to be proven. He got mad but finally relented loudly exclaiming, "Fine! Do whatever you want!" When the trial resumed, I asked my one question to the recalled officer and he was able to answer that, yes, it was a usable amount.

After closing arguments during deliberations, the jury sent out one question that was read outside their presence, "For Count One what is a usable amount?" Whew! Judge blew his top again and as he stormed back into his chambers yelled to the clerk, "Tell them to refer to the instructions!" After the response was sent into the jury room, they came back with a guilty verdict about 10 minutes later. In California courtrooms, the prosecutor sits closer to jury box because we have the burden of proof. In that particular courtroom the jury had to walk out the front end of the jury box and past my table to exit the courtroom. As they walked past several made sure to make eye contact with me and one even patted me on the arm as they walked by.

At the end of jury trials, judges give final separation instructions to the jury including that they can now talk about the case if they want and that they can wait in the hall if they want to talk to the attorneys. When I went out, alone, to the hall, I found my entire jury panel out there waiting to talk to me. (It's very unusual for all 12 jurors to hang around like that.) When I asked them if they had any questions I could answer for them they asked, "How did the judge like our question?" My mouth dropped open and they all broke out laughing. They explained that they clearly saw what was happening and did not approve. They sent out that question to mess with the judge!

I did make sure that they convicted based on the evidence, but I must confess it was nice to see they had my back. It was a valuable lesson that sometimes jurors are smarter than lawyers think or are aware. Also, they watch the judge, for good or for bad.

Hopefully, this all comes together for a just result in Mr. Trump's many trials.

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R.E.M. in Brooklyn, NY, writes: I've served on two trial juries, a criminal one in Manhattan state court and a civil one in the SDNY. As a lawyer, I came away very impressed with my fellow jurors and how seriously they took the case. It was also a fascinating experience watching the lawyers try the case—better than any Continuing Legal Education class I've ever taken.

In the state case, New York had just abolished all the professional exemptions from jury service, so in addition to me there also were a corporate lawyer from a top firm, a chief resident from a big-name hospital, a history professor from Columbia, and also a guy who drove a truck for UPS—altogether a true cross-section of Manhattan residents (as I was at the time). I was surprised that I got picked. The defendant charged with armed robbery (knife) was a Black man, and the complainant was a gay, white man. I figured the prosecution thought that as a white professional, I'd be on the side of "law and order." I speculated that the defense attorney (an older woman who obviously had done criminal defense for decades, likely starting at a time when few women practiced law) thought I understood "reasonable doubt" (the main issue was identification by the complaining witness) and the "presumption of innocence." She was right. We ended up agreeing (on my suggestion) that even if the defendant probably did it, the prosecution had not proved it beyond a reasonable doubt.

The federal civil trial taught me that a lawyer could actually blow his own case despite having the law and facts on his side. Ostensibly the question was whether an individual was a stockholder of the company so that it was a fiduciary for him. He wasn't. But the company was clearly insolvent, and the individual was clearly a creditor, and thus there was a fiduciary relationship for that reason. I convinced the other jurors to send out my question about whether we could find insolvency and to request the judge give us legal instruction on the implications. The jurors were all focused on getting the verdict right. After 15 minutes or so, we were called in, the judge said the case was tried and his instructions stood. As we went back to the jury room, he said in a loud stage whisper, "This is why I hate having lawyers on juries!"

So we returned a verdict for the plaintiff because the defendant hadn't proven the fiduciary relationship, which it could have done had its lawyer taken the insolvency lifeline I had thrown them. I learned from the clerks that there had been an argument about the question, and defense counsel had finally accepted not responding to my question. Idiot.

I'm sorry some of the other commenters here had bad experiences. I fully believe in the "collective wisdom" of the jury system, particularly after experiencing it twice.

Next week, we'll have reports focused on the impact of the judge's instructions. (Z)

In Texas, the Results Are In

We often get questions about the impact of the Texas abortion law, the one that incentivizes Texans to tattle on folks who "aid and abet" an abortion. There have certainly been some suits filed, but it's not entirely clear how many, and there certainly hasn't been time for them to reach a final resolution. So, it's hard to answer questions about the legal impact of the Texas law.

What is considerably more possible to answer, at least at the moment, are questions about population effects. A team at Johns Hopkins Bloomberg School of Public Health decided to tackle that subject, and they have just released their preliminary findings. Using some fairly sophisticated data crunching, they estimate that between April and December 2022, there were 9,800 live births that would not have occurred but for changes in the state's abortion laws.

It could not be clearer that the Texas government bears responsibility for those children, having compelled their mothers to carry them to term. Consistent with that, then, the state government surely has a duty to make sure those children are properly cared for in terms of healthcare, nutritious food, postpartum medical care for the mothers, etc. Will the administration of Gov. Greg Abbott (R-TX) be stepping up its commitment to newborns, particularly those born to parents living under the poverty line? Shockingly, Abbott's office has had no comment thus far. In fairness, he's been very busy calling the legislature into special session, so they can eliminate all property taxes.

And as long as we are on the subject of abortion-related studies, there's also a new one from the National Bureau of Economic Research (NBER). It confirms something that is surely obvious, namely that if low-income, uninsured women are given access to free birth control, the number of unplanned pregnancies and the number of abortions will drop. To put a finer point on it, NBER says that such an initiative would reduce undesired pregnancies by 5.3%, birth rates by 3.9%, and abortions by 8.3%. Further, because rubbers are way cheaper than rubber baby buggy bumpers, this would actually produce a savings of $1.43 billion for the federal government in terms of healthcare costs.

Inasmuch as the stated positions of the Republican Party include cutting government spending and reducing/eliminating abortion, we can only assume that Speaker Kevin McCarthy (R-CA) will be taking up a bill to implement NBER's recommendations with all due haste. Surely there's no reason not to do so, right? (Z)

Is Charles Koch a Fool?

We ask that question because of the old line about how a fool and his money will soon be parted. Yesterday, Koch announced that he and his network have committed $70 million to electing a non-Trump Republican as the next president of the United States. And note that the emphasis here is on "he," as $50 million of the $70 million comes from Koch himself.

Here is one of the ads that Koch and his pals plan to air heavily in early primary states:

In case you don't care to watch it, the ad makes two points: (1) Donald Trump is a crook, and (2) Joe Biden is a far-left radical.

Perhaps you see the problem here. Koch and his network have not settled on an alternative to Trump, other than "someone who is not Trump." We are very skeptical that, if Koch & Co. put all their resources behind one candidate, it would make much of a difference. Maybe, but we doubt it. However, "We don't like Trump, but even we can't decide who might be a better alternative" is definitely not going to move the needle in any meaningful way, no matter how much money Koch blows through.

Koch's been at this a long time, and has had a fair bit of success, albeit more on issues (global warming is a sham!) rather than on specific candidates. So, perhaps he has a plan here, and it's just not immediately apparent. On the other hand, maybe the departed David Koch was the brains of the political operation. (Z)

This Week in Schadenfreude: Tucker's Ablaze

When Bill O'Reilly was unceremoniously dumped by Fox, thanks to his habit of sexually harassing female staffers, he promised that his voice would still be heard and that he would remain a media force. That was roughly 6 years ago (he was cashiered on Apr. 19, 2017). When, exactly, was the last time that O'Reilly did or said something that was newsworthy? Could you, without using a Google search, say with confidence exactly how he's delivering content these days? YouTube? Twitter channel? Private website? Some other option? We certainly couldn't answer that without checking.

When Tucker Carlson was unceremoniously dumped by Fox, at least in part due to his habit of sexually harassing female staffers, he promised that his voice would still be heard and that he would remain a media force. He quickly pivoted to Twitter, and his very first "show" (monologue? rant?) was reportedly seen by 100 million people. Very impressive, right? That's way more people than watched his show on Fox.

Maybe not so impressive, actually. On Twitter, "views" does not mean "times the content was watched by someone." No, it means "times the content was put into someone's Twitter feed." Since Carlson is buddies with Elon Musk, and since Musk wants very much to make the platform into an alternative right-wing media outlet, Carlson's first production was given extremely preferential treatment by Twitter's servers. Since then, however, the former Foxer is being left primarily to his own devices. His latest drop attracted just 14 million "views." Given the conversion rate on Twitter, that means that it's likely that something like 350,000 people actually watched the clip.

You can't be a media force when you're reaching a tiny fraction of the American public, and when nobody is giving any attention to your utterances, even if you dial the crazy up to 11. And so, Carlson is now rethinking his whole approach, and is taking meetings about creating his own content platform. That's not to say that he is going to create a new social media platform, merely that he wants to build a pay-access website for all things Tucker.

In other words, Carlson is following the exact path that O'Reilly did (we googled him after writing the above paragraph) and the exact path of yet another guy who was broomed by Fox, namely Glenn Beck. Do "The No Spin News" (O'Reilly) and Blaze Media (Beck) make money for their owners? We assume so. Do they make $35 million/year, which was Carlson's salary at Fox? We doubt it. And does anyone give a tinker's damn about what they have to say about... anything? It does not seem so. There are lots of right-wing talkers who get plenty of coverage (Jesse Watters, Greg Gutfeld, Laura Ingraham, Mark Levin, Clay Travis, Ben Shapiro, Hugh Hewitt, etc.), but we cannot recall the last time we saw a story about Beck or O'Reilly.

In short, it would seem that Carlson needed Fox far more than Fox needed him. He's been off the air for about 2 months, and in addition to a huge financial hit, and a likely lawsuit for violating his non-compete, he's also well on the road to irrelevance. We cannot think of a better destination for him. (Z)

This Week in Freudenfreude: Goodbye, Farewell and Amen

On August 2, 1956, Albert Woolson passed away at the age of 106. His death was national news, enough so that President Dwight D. Eisenhower issued a statement about it, observing that "The American people have lost the last personal link with the Union Army." Note that Ike did not say "the last personal link with the Civil War." That is because there were three men still living, at that time, who claimed to be veterans of the Confederate Army.

Mathematically, it was rather unlikely that the last three survivors of the Civil War would come from the army that included roughly 35% of the people who served in the conflict. And today, it is generally accepted that the claims of the three "Confederates" living in August 1956 were false, prompted by a desire for attention or for a veteran's pension or both. So, Woolson is now generally regarded as the final living veteran of the Civil War.

That said, "generally regarded" is not the same as "universally regarded." It is not so easy to be sure who did, and did not, serve in the Civil War, for two main reasons. First, because "service" is an imprecise term. Do you have to see combat? Do you have to be formally sworn in as a soldier? What is the cutoff date for service in a war that is generally understood to have ended on April 9, 1865, but where there were troops still in the field as late as August 1865? The second problem is that record-keeping was sketchy in the 19th century, particularly when it came to the Confederate forces. In some cases, out of necessity for want of documentation, state governments adopted the standard that if someone would vouch they saw you fighting, that was good enough.

We bring this up because while it's easier to address questions of service for 20th century wars, it's still not possible to draw a bright-red line between "served" and "didn't serve." Sometime not too far off, in roughly the year 2040, the last living American to have served in World War II will shuffle off this mortal coil. And the last living members of various subgroups will pass before that—the last American to score a kill in aerial combat, the last American to fight in The Philippines, the last American to participate in the D-Day invasion, etc.

The smaller the subgroup, of course, the more quickly it is going to pass into memory. And one of the World War II subgroups that will soon be gone is the Tuskegee Airmen. That very famous, all-Black unit (because the armed forces were segregated back then) included 992 pilots and roughly 10,000 support personnel. Active from 1940-48, the Airmen earned three Distinguished Unit Citations and, thus far, 96 Distinguished Flying Crosses, 60 Purple Hearts, a Silver Star and 14 Bronze Stars. We write "thus far" because the Pentagon does sometimes go back and retroactively bestow or upgrade military honors. In particular, don't be surprised if one day that Silver Star, awarded to Benjamin O. Davis, Jr., who commanded the Airmen and saw them shoot down over 100 enemy planes, is upgraded to a Medal of Honor.

Davis, who was 30 when he took command of the Tuskegee Airmen, and who retired from the Air Force in 1970 as a full general, was never going to be the last living member of the unit. It's always someone who joined very young and very late. Someone like Homer Hogues, who was born in 1927, and so was 19 when he joined the Airmen as a mechanic. He remained with the unit until it ceased to exist in 1948, thanks to the integration of the U.S. military (a process where then-Col. Davis served as a key adviser to Harry S. Truman).

Hogues ultimately attained the rank of staff sergeant, and enjoyed a level of equality not generally available to Black men outside of the military at that time, up to and including marching in Truman's inaugural parade. Once Hogues left military service, however, it was time for second-class citizenship. Despite being an experienced aerial mechanic, he struggled to find work with the country's major airlines, excepting janitorial work. He did eventually find employment at a manufacturing facility, and hung on to that job for 40 years before retiring.

Meanwhile, in his off hours, Hogues participated in the Civil Rights Movement, and also spoke to countless groups about the Tuskegee Airmen, helping to keep that history alive. Well after his retirement from the labor force, he was invited to be part of a presidential inauguration for a second time. In this case, it was in 2008, as an honored guest of then-president-elect Barack Obama.

As you have presumably gathered by now, Homer Hogues died this week, at the age of 96. Every single obituary describes him as "one of the last surviving Tuskegee Airmen." Exactly how many others are left, and exactly who they are, is hard to say because of the fuzziness we describe above. It's entirely possible that, one day soon, Americans will look back and conclude that Hogues was, in fact, the last of the Airmen. And even if that does not prove to be the case, this is nonetheless a chapter in American history that will soon come to a close. Father Time is, after all, undefeated.

Given the Supreme Court's decision (see above) and the fact that this is the last Freudenfreude entry prior to the Fourth of July, this seemed an apropos choice of subject. Have a good weekend, all. (Z)

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