Judge Posner has a column in the Harvard Law Review forum on the issue of statutory interpretation. Having drafted legislation and worked around judges for quite some time, I highly recommend it.

He makes the case that the articulated canons of statutory interpretation are, by and large, pretense. They depend on legal fictions about how the law is made and how the law is applied. In reality, a judge is going to do his or her best to understand what the legislature was trying to do and apply it to real world situations in order to obtain reasonable results. Human brains don’t function by programming in a set of interpretative instructions, then plugging in particular data. The rules of judicial interpretation — pick any one of them that strikes your fancy — have so much wiggle room that the decision can come first and the interpretative justification made to follow.

[I]interpretation is a natural process; we do it any time we hear someone speak and any time we read anything. Interpretation can be difficult but it isn’t made easier by bringing a formal apparatus to bear; it is made easier by familiarity with the texts to be interpreted. And cases must be decided even if interpretation is impossible and the judges must bluff their way to a decision — which is often.

This was an insight I was somewhat slow to grasp. More than once, I convinced myself that victory was certain because my legal logic was impeccable. Here is the law, here is how you have to interpret it according to the rules. Forget about the people involved and the consequences. The law is the law. Now give me my judgment.

But judges are real people operating in the real world. And the law isn’t some game. In a game, there is no existence outside of the rules. You play according to the rules and follow the rules to the dictated outcome. If it was a fun game, you play again. If not, you go do something else. Life and the law aren’t like that, and so you’ll find that judges more often than not get blind to the literal and even the obvious when the outcome is arbitrary or appalling. And, if they have the time and inclination, they can usually justify their seeming departure from the law with some rule of statutory construction or other.

I’m not saying this to disparage judges. I think, almost to a person, they are trying to apply the law in a reasonable and fair way. But I do tend to agree with Judge Posner that justification based on technical rules of construction tend to be something of a parlor game.

100 years ago, it was November 11, 1915. The soldiers of World War 1 had three years to go and an almost unimaginable amount of largely pointless slaughter to endure before the Armistice would be put in place on the 11th hour of the 11th day of the 11th month of 1918. That event was commemorated with Armistice Day which has now been renamed Veterans Day.

For a history of World War 1, I can’t recommend highly enough Dan Carlin’s Hardcore History podcast series “Blueprint for Armageddon 1 – 6. I don’t think any description can really do justice to the horrors of being a soldier in those trenches or trying to advance on the enemy trenches, but Carlin gives it a good effort. The horror is amplified by the ultimate futility of the war effort and the opaque reasons the war started in the first place.

This is a day to thank our soldiers — not as a way of glorifying war but as a way of reflecting upon its costs. War has sometimes been necessary, and often times it has not. But always a large part of the toll is paid by the soldiers; people who, frequently, had more in common with the soldiers on the other side than they did with the people making the decisions to fight the war. The case of World War I makes this abundantly clear. We honor not just those willing to fight and die for our freedom, but also those who are willing to do their duty when the policy goals were much more muddled.

Here dead we lie, by A. E. Housman

Here dead we lie
Because we did not choose
To live and shame the land
From which we sprung.

Life, to be sure,
Is nothing much to lose,
But young men think it is,
And we were young.

So, 2015 was a municipal election year. The elections have come and, mostly, gone. The top headline is probably that Joe Hogsett was elected mayor of Indianapolis. (Congratulations to Thomas Cook (former Blue Indiana blogger) for his role in that campaign.) The Marion County/Indianapolis City-County Council will apparently be controlled by Democrats by a one seat margin.

The thing is, the real importance of municipal elections, is often not primarily at the top headline level. There are lots of down ticket races that will have an impact on your daily life. Local government isn’t as eye catching or headline grabbing, but it makes the most difference in the life of the average citizen. Mayors, city clerks, council members, school referenda — they help shape your community. But, because these are relatively obscure; because the issues they face are often not easily boiled down to a “my team/your team” news narrative, they are over looked.

When you have good leadership in your city, it’s probably just fine to kind of ignore them and let them run the local government. The minutiae of the issues they consider is often technical and coma-inducing. People have their own jobs to do and their own areas of expertise, having neither time nor the inclination to attempt some kind of colonial town hall democracy where the citizens weigh in on every issue. However, when you have bad leadership, citizens would probably be better off if they were knee-deep in the muck, preventing the bad leaders from messing up the joint.

How to know the good leaders from the bad? Well, I suppose you have to be paying attention. You have to know – at least in general outlines – what the job entails and whether the leaders are doing it. Our civic education is lacking — particularly when it comes to local governance. We teach our kids early about the President and the Congress. They get some additional instruction about the governor and the state legislature and how a bill becomes a law. But that might be about it. Not much about mayors and city councils and county councils, appointments of city engineers and police chiefs, etc. etc. In some ways, it reminds me of law school. We come out of those schools knowing a lot about how appellate court judges write and operate, but precious little about the nitty-gritty guts of what street level lawyers do with their days. Maybe our schools should start with local government and, if there is time, work up to state level and national level.

I have seen belly-aching about the lack of local participation and tips and tricks to improve turn out. But, in my mind, none of that works or matters until people know what and who the hell they’re voting for.

I have been seeing a lot of posts about how Columbus was a horrible person who did terrible things generally and, in particular, that his voyage to the Americas triggered the beginnings of some truly awful times for the indigenous people who were already there. I think some of the vitriol is a little over the top for someone who has been dead for half a millennium. That level of emotional response strongly suggests that a person is using Columbus as a proxy for things they dislike about the present. The time was ripe for some European voyage of exploration to bump into the Americas. So, Columbus or not, I doubt the Americas would have been undiscovered by Europeans for more than another 50 years or so.

The experience of the people indigenous to the Americas wouldn’t have been great no matter who arrived first. Among other things, even with the most egalitarian intentions (which wasn’t going to happen), first contact by anyone from Eurasia or Africa was going to mean the introduction of ravaging diseases. It’s my understanding that the mistreatment by the Spaniards, egregious as it was, paled in significance compared to the deaths caused by disease.

Causing Columbus to carry the baggage for the horrors of European society seems like a heavier load than he deserves. But, even if he was a decent fellow — a claim I don’t make — his feats of exploration don’t seem all that impressive, relative to some others you could point to. My knowledge of exploration is heavily white and European, so I apologize for my lack of familiarity outside of that narrow circle. But, Prince Henry the Navigator had Portuguese exploration accomplishing quite a bit prior to Columbus. Magellan’s voyage sailed around the world (though he did not — Enrique of Malacca may have been the first person to go around the world. Juan Sebastian Elcano should probably be credited with the first circumnavigation.) Sir Francis Drake completed the second circumnavigation and did so while in command the whole time and after capturing a bunch of Spanish gold in the process. (He also came back with over 1/3 of his crew, which wasn’t bad by the standards of the time.) And, if we’re talking about sheer feats of navigation, it’s tough to beat James Cook.

So, I’d happily dump Columbus Day as something we celebrate. But, I doubt it will have a significant impact on the social ills associated with Columbus and continuing observation of the day named for him. On the other hand, it might help a little, and I doubt it would hurt anything.

(This is a re-post of an entry I put up in December 2012 on what I’m afraid is an evergreen topic.)

In the wake of these tragic mass murders, firearm advocates, reacting to calls for gun bans, point out that lots of things kill people. Cars, for example, kill lots of people.

We mandate liability insurance for cars. Why not for firearms? Bring market forces to bear on this issue. More firearms make things safer? Insurance rates will go down (if true).

Anyway, what I envision is a requirement that a firearm owner obtain liability insurance that covers injuries caused by that particular firearm. (Runs with the weapon – provides an incentive for people to secure the weapon in a way that ensures, for example, kids don’t have access to the weapon.) I would also envision a policy surcharge used to subsidize coverage for uninsured losses, treatment of mental illness, enforcement of existing regulations, and safety education efforts.

Firearm advocates promote guns as critical for liberty and personal safety. Seems like the price of an insurance policy is a small price to pay for life and liberty. If, on the other hand, your attachment to your guns is more of a cultural affectation, the cost may make you re-evaluate your priorities.

It won’t happen, but it struck me as a compromise position that avoids confiscating weapons on the one hand or continuing, on the other hand, to sit on our hands while mass murderers with firearms gun down the innocent as we idly wonder why this keeps happening to us.

(An additional idea, not in the 2012 entry, is some kind of dealer’s experience account where the dealer has to pay in a certain percentage of the sale. The percentage goes into a firearm victim compensation fund which would pay out some capped amount for individuals injured by firearms. The amount of the percentage for any particular dealer would go up when the dealer’s firearm is found to have injured someone and go down when they have a below average incident-to-transaction ratio. The idea being to create a market incentive for dealers to sell responsibly and penalize those dealers whose transactions are most likely to lead to firearm injuries.)

The big news for the Indiana General Assembly yesterday was majority floor leader, Rep. Jud McMillin’s abrupt resignation. I have not been as careful a watcher of the legislature lately as I have been in years past, but a quick search of my blog shows a few hits for Rep. McMillin, probably most notorious of which was one of those proposals to require poor people to get drug tests before being eligible for welfare benefits and restricts the types of foods available through food stamps. On that, I posted at the time:

Other states have tried the drug testing for welfare recipients and have found it to be a waste of taxpayer money. The idea is, I suppose, that their poverty is the result of their poor moral choices, e.g., doing drugs. If they weren’t so drug addled, obviously they would be productive citizens. But, it turns out, not so much. The welfare population doesn’t seem to do illegal drugs at a higher rate than the population at large. The experience of other states is that it costs as much or more to test people than it saves by denying benefits to those few who test positive.

Speaking of poor moral choices, Rep. McMillin’s resignation does not appear to be due to, as the original press release indicated, his ardent desire to spend more time with his family. Rather, as Lesley Weidenbener reported for the IBJ, and Tony Cook and Chelsea Schneider reported for the Indy Star, there is something to do with sex and a phone. And Canada. From the Weidenbener article:

Sources close to the Republican caucus said someone obtained McMillin’s phone and discovered at least one video that showed the lawmaker involved in sexual contact. The sources did not detail who else was involved.

But before his resignation, McMillin sent a message alerting contacts that his phone had been stolen and to disregard any messages they had recently received from him. “I am truly sorry for anything offensive you may have received,” the text said.

From the Cook/Schneider article:

McMillin said in a text message last week, “My phone was stolen in Canada and out of my control for about 24 hours. I have just been able to reactivate it under my control. Please disregard any messages you received recently. I am truly sorry for anything offensive you may have received.”

The inference has to be that there is something about the sex video that goes beyond just sex that happened to be recorded. It’s not for everybody, but there is nothing particularly scandalous about couples choosing to record themselves. If McMillin and his wife had a video distributed without their consent, then they’d very much be the victims and there would be no reason for him to resign. So, I assume an extra detail or two will be forthcoming before too long.