The Indiana Court of Appeals today reversed a trial court decision adverse to Founder’s Insurance in a 2-1 opinion with Judge Robb writing the majority opinion and Judge Mathias concurring with Judge May writing the dissent. The case was Founders v. May (pdf). Founders insured a vehicle owned by May. Coomer took the vehicle without May’s permission (and without a valid driver’s license) and got in an accident with Hoke, killing him.

Founders filed a declaratory action requesting that a court recognize that its insuring contract imposed on the company no duty to defend or provide coverage for the accident. The insurance policy excluded coverage for a person operating the vehicle without a reasonable expectation that they were authorized to use the vehicle and also excluded coverage for a person operating the vehicle without a valid license. Hoke’s estate objected because Hoke was an innocent third party who wouldn’t be compensated if Founders wasn’t compelled to pay for the damages caused by the accident. The trial court granted summary judgment to Founders with respect to May and Hoke but denied as to Hoke’s estate. The Court of Appeals does not explain the trial court’s rational, if one was articulated.

The general argument in favor of tagging Founders with the bill seems to be that the fact that automobile insurance is compulsory in Indiana means the General Assembly recognized the danger of automobiles and that individuals who suffer loss due to the tragedy of accidents ought to have some means of recovery. But, as the majority recognized, this is not the same as “a social policy to guarantee compensation to all victims of motor vehicle accidents.” Founders had no relationship to Coomer. She took the vehicle without permission and without a license — both exclusions under the policy. Why look to Founders? If the policy is a generalized one to provide recovery to every innocent person hurt in an automobile accident, why not impose liability on the State or on every insurance company? Just because Founders would have provided insurance if May had been driving doesn’t mean they signed up to compensate everyone who crossed paths with that particular automobile. If May had satisfied the State’s financial responsibility requirements by posting a bond rather than buying insurance, would his bond be forfeit even if he had no involvement with the accident?

The majority lists some other practical difficulties with the trial court’s decision:

The trial court’s determination raises several practical questions, such as, if Founders has no duty to defend or indemnify May or Coomer, from where does a duty to Hoke’s Estate arise? How exactly
would the action proceed if Founders has no duty to defend May or Coomer? Does Founders appear in Hoke’s Estate’s lawsuit against May and Coomer and defend itself? Does Hoke’s Estate institute a direct action against Founders if it should succeed in its lawsuit against May and Coomer?
Could Founders assert the terms of the contract of insurance as a defense in any such action? What would be the limits of Founders’ liability to Hoke’s Estate if the contract is unenforceable as
to May or Coomer? If the exclusionary provisions of the contract are unenforceable, are the limits provisions nonetheless enforceable, and would that be a matter of judicially picking and choosing which provisions of the contract may be enforced and which may not? Because of our resolution of this case, however, we need not answer these questions.

The dissent acknowledges some of the difficulties raised by the majority but reasons that these are outweighed by good public policy which would provide for recovery by an innocent victim of an automobile accident. “An innocent victim’s ability to recover should not depend on an automobile owner’s income level.” The dissent does not believe non-motorist victims of automobile accidents should be at a disadvantage when compared to motorist victims. (That disadvantage, I believe, being that motorist victims have the opportunity to purchase uninsured/underinsured motorist coverage for when they are driving their own vehicles whereas bicyclists and pedestrians are not provided with an opportunity to buy such coverage.)

If we decide that the general public should have financial options if they are victims of automobiles — no matter who is driving or whether that driver contracted for insurance or paid premiums — that such victims don’t have if they are victims of most other hazards in the world, then, in my mind, we shouldn’t rely on insurance to do it. At that point, we’re talking about a need for general taxation.

The problem about writing a blog for a decade or more is that sometimes you forget stuff. I had seen some discussion about an academic named William Bradford and his outlandish article bloviating about the perils of pro-Islamic academics giving aid and comfort to the enemy. He suggested treating U.S. scholars as “enemy combatants.” The name seemed vaguely familiar but not enough for me to try to figure out why.

Fortunately, the Indiana Law Blog forgets very little and posted a reminder about Prof. Bradford’s less than graceful exit from Indiana’s academic legal circles. That jogged my memory. I too had a brief piece about Prof. Bradford about 10 years ago entitled, “Sometimes they just don’t like you because you’re a wanker:”

Ruth Holladay has a column entitled Truth comes out about professor’s background. Professor William C. Bradford resigned after being revealed as a fraud. Apparently he had promoted himself as a war veteran and Silver Star recipient. He was neither. He held himself out as a conservative persecuted by the liberal elites of academia because fellow professors voted against Bradford receiving tenure. Sometimes it’s not your politics or philosophy. Sometimes it’s just you. Good riddance.

Looks like Prof. Bradford is, again, forced to move along from his academic position, not because of any grand conspiracy, but because he doesn’t seem to have the right temperament for the job.

Niki Kelly, writing for the Fort Wayne Journal Gazette, has an article about the interim study committee meeting on Roads and Transportation from earlier in the week. The committee “recommended approving the renewal of the plate for the Indiana Native American and Indian Affairs Commission, as well as issuing group plates for the first time to the Indiana Golf Foundation; Indiana Recycling Coalition; and the Indiana Emergency Medical Services Association.” The committee recommended rejection of plates for the Indianapolis Children’s Choir and Memorial Hospital of South Bend as being too local, rather than statewide, in nature.

According to the article, there are currently 92 speciality plates in place with a statewide cap of 125. That’s just too many plates, in my opinion. It is supposed to be a tool for the state to register, identify, and otherwise regulate vehicles. They are turning into bumper stickers. The joke at LSA 15 years ago was that, sooner or later, every Hoosier motorist would simply design their own. We’re getting there.

A good article from a couple of days ago by Maureen Groppe on Indiana’s transportation infrastructure spending which is definitely worth a read if you haven’t seen it yet. (h/t Sen. Charbonneau).

Indiana spends less per capita on roads than most states and, the U.S. as a whole spends less than other countries and less than it used to:

Indiana, which already spends less per capita than most states on highways and transit, is not collecting enough gas taxes to adequately maintain its roads and bridges, much less pay for the new projects the state deems a priority.
. . .
Indiana is one of 21 states that have not raised the gas tax in more than a decade, even as revenues have declined in recent years.
. . .
Indiana ranked sixth from the bottom in per capita state and local dollars spent on highways and transit from 2008 through 2012, according to the Pew Charitable Trusts. That made Indiana more reliant on federal funding than most states, getting 37 percent of its transportation spending from Washington, compared with the national average of 25 percent.

Nationwide, the country is spending half as much on infrastructure as a share of the economy as it did in the 1960s, when much of the interstate system was built. The United States spends about 2.4 percent of its GDP on transportation and other infrastructure, compared with about 5 percent in Europe and 9 percent in China.

As Gov. Pence said, “If you’re going to be the Crossroads of America, you better have the roads to back it up.”

Partisan gridlock and an anti-tax fetish is not doing our infrastructure any favors.

I have touched on this topic a few times before, but it seems apropos in light of Labor Day and an article an acquaintance of mine shared about a battle in California with respect to the line between public and private beach areas and access to the public areas. He linked to the article and complained about the public beach advocates invoking the power of the State to the detriment of the private beach advocates. I read the article and was a little startled at how my take was almost 180 degrees different from his. To me, it was pretty clearly the private property owners who were invoking the power of the State to the detriment of the public beach advocates.

Now, I’m not naming the acquaintance and have not particularly inquired about his thinking, so the assumptions I make here should probably best not be ascribed to this individual. But, I speculate that my disagreement with what I assume he thinks comes from some very deep assumptions about the nature of property that I don’t share or about which I’m at least skeptical. And, I believe, it comes down to a notion that property is somehow independent of government. It’s not. Property is government. You’ll see arguments that property is a “natural right” — it’s in the Declaration of Independence, after all. How could it not be natural? But, from what we can tell about how humans have lived and conducted themselves for the 200,000+ years that homo sapiens has existed as a species, fixed, heritable, exclusive rights to land is very much not the norm as a matter of nature. We see the concept of property rights to land taking root roughly 10,000 years ago with the Agricultural Revolution — we’re looking at something like 95% of human history not involving real property rights. The point being, not that property rights are bad, just that they are an artificial construct, not “natural.”

And, those rights are inextricably dependent on government. Having real property rights means, as a general proposition, that the government will, on your behalf, exclude the rest of the world — by force if necessary — from using that patch of ground. A startling concept if you think about it. Here is a patch of dirt that, for thousands upon thousands of years was available for the use of anyone who could reach it (and, assuming a disinclination to share, was strong enough to fight off anyone else who happened to also want to use the area). Now, in a fairly dramatic shift, we are going to create a system of ownership, dispossess (usually by government force) anyone who isn’t part of our system (in the American case – the Native Americans), and, thereafter, use communal resources (including the military, the police, the courts, government surveyors and recording offices) for the benefit of the individual owner to exclude the rest of the world from interfering with the ownership rights the person enjoys under our system.

Again, these property rights are not bad. So much of the good civilization has achieved in recent millennia depends on them. All well and good, but so what? Why the history lesson and focus on semantics? Because it takes a huge blind spot to regard those private property rights as somehow not being government. And this has a real impact on modern political discourse.

Advocates of “small” government are, in no way, proposing to limit government support for and enforcement of private property rights. That this is a legitimate function of government is taken for granted. Not even thought of as government, really. So the “small” government advocates can “Other” government and run against it without jeopardizing the huge infrastructure of government upon which they depend extensively. They don’t have to get into the messy business of arguing about why their government-backed policies are better than your government-backed policies. They can just rely on the fact that, by ignoring their government-backed, pro-property preferences and limiting or eliminating government involvement in other policy initiatives, their interests will be preserved. And they’ll be preserved without the need for haggling over whether their interests are better than yours. They aren’t self-interested. They are merely “against government” (if you ignore the extensive government required to create, define, preserve, and enforce property and contractual rights.)

Again, contractual and property rights are very, very useful. But there are costs and benefits to everything and, with this huge blind spot we have with respect to those sorts of rights, the people who benefit most from these particular kinds of rights are largely let off the hook when it comes to demonstrating the utility of the government support they enjoy.

To add some Labor Day flavor, think about the usual sorts of arguments we see when it comes to unions. Collective bargaining rights are seen as artificial and suspect — justified only if the public is very clear on their ongoing need. (See, e.g., the “Oh, sure, unions used to be necessary but things are better now, so we don’t need them anymore” argument.) It’s not uncommon to hear someone argue that labor laws constitute an artificial constraint on the market — let laborers and owners negotiate a price without government putting its thumb on the scale of the negotiations with these unfair labor laws that benefit unions and workers. Meanwhile, the property rights and contractual rights that give owners much or all of their leverage in negotiations are simply regarded as “natural” and government policy in creating and enforcing such rights are never questioned. The utility of property rights versus labor rights are rarely compared directly and weighed one against the other. And the reason such cost/benefit analyses are rarely conducted is because of this blind spot that takes property rights for granted and being somehow outside of government.

Property is government. Mostly it’s *good* government. But, government nonetheless.

A buddy of mine forwarded a story by Rachel Crane and Claudia Morales, writing for CNN, entitled “Science and Religion Fight Over Hawaii’s Highest Point.” At issue is whether a huge telescope is going to get built on top of Mauna Kea. Whatever the final outcome for the telescope, some excellent Mauna Kea protest music has been made. See, e.g.:

I became aware of the controversy when we visited Hawaii this past June. Generally speaking, Mauna Kea is up really, really high in an isolated pocket of the Pacific Ocean. Conditions for astronomy are, it’s my understanding, basically unparalleled. The problem is that the same geographic factors that make the mountain ideal for astronomy also, pretty much inevitably, made the mountain sacred to the people who first stumbled upon the Hawaiian Islands.

To native Hawaiians, the dormant volcano is the most sacred land in the entire Pacific. It is the point where the sky and earth meet. They believe it is the site of the genesis of their people, and it is the burial ground for their most revered ancestors. Considered a temple and a house of worship, native Hawaiians believed the gods created Mauna Kea for them to ascend to the heavens.

To scientists, the mountaintop is the best location in the world to observe the stars and study the origins of our universe.

“The summit of Mauna Kea may, in fact, be the darkest site anywhere in the world … which of course means you can see deeper into space,” said Doug Simons, executive director at the Canada-France-Hawaii Telescope. The CFHT sits with 12 other telescopes on top of the mountain.

There are battles afoot, both in the courts of law and of public opinion, to determine whether a new, enormous, 30 meter telescope will be installed. At first blush, to me, it’s a no brainer because – on the one hand – it’s not my religion and not my island, on the other hand, the advancement of scientific knowledge, particularly in the field of astronomy, is awesome. However, beyond my initial, personal priorities, there is more than a whiff of imperialism at work here with Western imperatives at odds with local preferences.

Maureen Hayden, writing for CNHI, has an article that appeared in the Trib Star (again – just an awful website design – way too busy) entitled “Some have high hopes for Indiana hemp crop.”

Hemp has apparently been illegal to grow since 1970 except that, in 2014, the federal government opened up the possibility of getting a waiver from the DEA to grow the crop for agricultural research. Purdue has obtained such a waiver and, yesterday, had a hemp field day.

The ban is part of the War on (Some) Drugs even though the hemp in question has a very low THC content and is, I’m told, useless in terms of getting you high. I’m speculating that the point of the ban is that this industrial hemp looks a lot like marijuana and, therefore, would make anti-marijuana enforcement efforts more difficult?

In any case, the Purdue researchers were successful in growing the hemp.

After just one growing season, in which the seed was planted late because of a permit delay and then drenched by record rainfall, [Purdue agronomy professor Ron] Turco sums up the research conclusion this way:

“It can grow in Indiana. We know that,” he said. “The rest of it is political.”

Indiana lawmakers have been hesitant to move beyond the current constraints, fearful that by opening the door to legal hemp, legal marijuana might sneak in, too.

Disclosure: The Turcos are neighbors and family friends. From what I’ve heard, the bureaucratic challenges to growing the hemp were at least as significant as any technical challenges. Lawmakers should take a fresh look at the costs and benefits of the hemp restrictions to see if the restrictions continue to make sense (if they ever did.) There are apparently a lot of uses for such hemp (see the Wikipedia page), including as food, fiber, and building materials among other things. I don’t pretend to have any particular knowledge of whether the uses are economically compelling. However, if those uses are anywhere near as beneficial as its advocates claim, then lawmakers who support economic development and oppose burdensome, nanny-state government need to take a close look at this initiative.

So, the bridge is out on Northbound I-65 over the Wildcat in Tippecanoe County. According to the INDOT press release:

Structural engineers monitoring the I-65 northbound bridge over the Wildcat Creek noticed movement in the riverbank pier and ordered the bridge closed Friday afternoon. An estimated reopening date for the bridge will not be known until soils testing and analysis is completed. INDOT will work to provide updates as new information is available.

Chris Morisse Vizza and Hanna Smith, writing for the Lafayette Journal & Courier provide additional information:

What caused the bridge to drop 9 inches last week while construction crews worked to widen it has not yet been determined, pending further tests. Officials believe soil conditions and an underground artesian spring, in conjunction with construction work on the bridge, caused the structure to settle or sink into the ground, necessitating its closure.

Engineers apparently feel that using the Southbound bridge to provide one lane of traffic each way is not a viable option because the lanes would be too narrow. As of yet, there is no timeline for re-opening until the tests come back. “Closed until further notice” is an ominous phrase. Those of us in Tippecanoe County suddenly find ourselves discussing routes to and from Indy as assiduously as we normally discuss the weather and basketball.

I see pundits trying to fix the blame for this on Gov. Pence. I’m open to additional information on the subject, but for now, I’m not buying it. Certainly I don’t see eye-to-eye with the man on some of his policy preferences. The fixation on the surplus as a metric of government efficiency or economic health strikes me as a pernicious bit of modern day mercantilism. Economic health isn’t indicated by the amount of wealth a state is able to amass but, rather, (at least in part) by the velocity with which the money flows.

In a very real way, the velocity of money is tied to the velocity with which goods and people can get around. Your goods are going to cost more if you are paying truck drivers extra to sit in traffic moving stuff from the factory to the store. So, in that respect, $2 billion in the bank is less valuable that $2 billion invested in public infrastructure.

But, we need to be more concerned about fixing the problem than we are on fixing the blame. We need engineers to identify the problem and solutions for restoring the bridge to safety. We need construction companies and workers to implement the repair. We need to be more pro-active about identifying deteriorating infrastructure and spending the money necessary to fix it — preferably during economic periods where unemployment is high and interest rates are low. And, rather than railing against government, we need to learn from this problem and take a moment to appreciate the infrastructure we have and figure out how to improve and expand it.

On August 9, 1945, the U.S. dropped the second atom bomb, this time on Nagasaki. Hiroshima gets the most attention for being first, but Nagasaki was the one that ended the war. Initially, the Japanese city of Kokura, an important manufacturer of munitions, was the target. However conditions over Kokura made the bomb delivery difficult and the bombers went to Nagasaki as their secondary target.

The Japanese government had not reacted to the Hiroshima bomb on August 6. The war council still insisted on four conditions for surrender: the preservation of the Emperor, disarmament being the responsibility of the Imperial Headquarters, no occupation of the Japanese Home Islands, Korea, or Formosa, and delegation of the punishment of war criminals to the Japanese government. After Nagasaki, Japan dropped all of the conditions except preserving the Emperor, and he announced the surrender.

Probably it would have been better if World War II could have been ended without opening the Pandora’s box of atomic weapons. But, it’s difficult to say that their discovery would have been far off in any case. However, I have little patience for those who make the American decision to use the atomic bomb as unconscionable and try to paint Japan as a sympathetic victim. Japan was under the leadership of war mongers and, once that type gets control, it is difficult to dislodge them. Their treatment of conquered peoples had been deplorable, and their defense was tenacious. The bombs made victory swift and complete. Internalization of the defeat by the population and the resulting peace could be structured in a way that made pernicious “stabbed in the back” (post WWI Germany) or “Lost Cause” (post Civil War South) mythologies less likely to arise. This is to say nothing of the Americans who would not have to die invading Japan to end World war II.

The formal surrender of Japan would take place on the USS Missouri on September 2, 1945. We don’t need to be proud of the bombing at Nagasaki but neither, I think, do we need to be ashamed of it.