Revenge of the Deplorables

A Lorain County, Ohio, jury awarded Gibson’s Bakery $44 million this month in its defamation suit against Oberlin College.

In November 2016, the owner of a store near the campus apprehended a then-19-year-old black student for shoplifting wine. In response, about 150 students staged protests in front of the store, accusing its owners of racism and racial profiling. This month, a jury said Oberlin’s handling of the incident would cost it $11 million in compensatory damages and $33.2 million in punitive damages (which is $11 million more than Ohio law permits).

WSJ columnist Dan Henninger writes:

What happened at Oberlin is a parable for the politics of our times. Its lesson is that you may end up paying a high price for your facile political assumptions about people with whom you don’t agree.

Barack Obama didn’t pay a price for his remark about people who cling to guns or religion, but it proved too much to swallow when Hillary Clinton recast his condescension as the “basket of deplorables.” She paid an unimaginably high price for the increasingly common impulse to say any slovenly thing that comes to mind.

Wow, didn’t she. From almost a shoo-in against arguably the most “deplorable” candidate her base could have imagined, she lost.

colleges and universities across the country are learning that letting the political left run wild across their campuses without adult supervision may be more trouble, and more costly, than it is worth.

One would presume that university professors and administrators would be adults. It seems that the professoriat is populated with those stuck in adolescence.

One shouldn’t need a multimillion-dollar liability judgment against a college to define recognizable boundaries of common sense. But given the intensity of political animosities these days, maybe that’s what it takes.

The Foundation for Individual Rights in Education (FIRE), an organization of which we support and contribute to, has won a number of suits against colleges that deny free speech to students. None the size of this, though.

Read the full column at https://www.wsj.com/articles/oberlins-44-million-mistake-11561589414

 

VP Stakes. Haley makes a Winner?

Andrew Stein founded the Democrats for Trump in 2016. As odd as that might seem, it shows that there is still some sanity in the Party that in recent years has been living up to its symbol/mascot. Stein observes:

• President Trump’s pro-growth policies have revived the stagnating U.S. economy, and he deserves a second term. But to have the best chance of re-election, he should replace Vice President Mike Pence on the ticket with Nikki Haley.

He says he means no disrespect for VP Pence but –

• Mr. Trump’s greater obstacle to re-election comes from politically moderate suburban women, many of whom see him as divisive.

• It’s too late for Mr. Trump to revamp his political personality. But with the 2016 election in the past, Nikki Haley on the ticket could tamp down the antipathy for Mr. Trump that seems to afflict so many moderate and Republican-leaning women.

Stein has a point here. Contrast Haley with Elizabeth Warren, whose whining delivery makes one expects her to burst in tear any minute. Or the other two most prominent females (who are polling in single digits—Harris’ high point appears to be 7%, while Gillibrand barely reaches 1%, if that).

I fear that the Dems might actually nominate Biden with one of the aforementioned triumfeminate (or is it triummulierate? Gary B. might have the answer) as VP in the hope that age or the Grim Reaper catches with him during his tenure. Rather macabre, I admit, but wouldn’t put it past them.

See WSJ  https://www.wsj.com/articles/trump-haley-in-2020-11561316951

Not Our (Founding) Fathers’ Liberalism

Recent years have seen various political labels bandied about by media commentators, bloggers, Internet trolls and scolds, and even academics and public officials. What is progressive, conservative, liberal, libertarian, neocon, populist, left-wing, right-wing, or other wing? Or what counts as democracy, authoritarian, socialist? Do labels have any real meaning?
Books, newspaper and other print media expostulating ideology and political stance are aplenty— mostly saying “hooray for our side” as the 1960s song observed.
Speaking of the 1960s, The Wall Street Journal this past week featured a column by one Robert Blechman, a confessed “liberal” from that era, complaining about how that label, and his values, have been corrupted.
Before going into his analysis, some word usage discussion is appropriate.
Words can change meaning, or acquire multiple meanings. A word in one context can also mean different in another, even in the same sentence. Words can also be changed or varied by culture, or even by those who have control of the communication facilities or media. Language can be the tool of despots, in the manner which George Orwell described in his essay “Politics and the English Language” and demonstrated horrifically in his dystopian novel Nineteen Eighty-Four.
Definitions and usage of “liberal” takes up seventeen pages in the Oxford English Dictionary and reports multiple meaning, some inconsistent, for example:
5. a. Supporting or advocating individual rights, civil liberties, and political and social reform tending towards individual freedom or democracy with little state intervention.
or
4. a. Free from bias, prejudice, or bigotry; open-minded, tolerant; governing or governed by relaxed principles or rules; (Politics) favoring social reform and a degree of state intervention in matters of economics and social justice; left-wing.
In the present milieu, especially in the United States, the 4.a. definition is the commonplace adjectival definition. The 5.a. one is often used as the definition of “libertarian” or, oddly enough when considering literal meanings, applied to many avowed conservatives.
Blechman recounts his “liberal” activities as a young man in the ‘60s and early ‘70s and observes as follows.
• At some point, however, the liberal ideal of equality of opportunity gave way to a progressive program to give certain historically disadvantaged groups overt preferences in education and employment. This is the opposite of judging people based on their character. Liberalism somehow made a U-turn when it morphed into contemporary progressivism.
• Another core liberal belief of mine is that proper justice depends on due process—which includes a presumption of innocence. Yet in 2011 the Obama Education Department sent a “dear colleague” letter to colleges and universities, threatening to cut off federal funding unless the schools changed their procedures to make it easier to discipline students accused of sexual assault. As a result, many students were stripped of their rights to counsel, cross-examination of their accusers and discovery of the evidence against them. Those procedures were re-examined by the current secretary of education, a step that was bitterly criticized by progressives because it may make it more difficult to punish the accused—the price of all due-process protections.
• A presumption of guilt replaced the presumption of innocence, and progressives seemed unconcerned. I can imagine a #MeToo version of “To Kill a Mockingbird,” with Mayella Ewell as the heroine, Atticus Finch condemned for “toxic masculinity” and the lynch mob cheered as an engine of popular justice.
• [T]he idea that every defendant, however unpopular, is entitled to legal representation. This year, however, Ronald Sullivan, a Harvard Law School professor, became the object of student protests after joining disgraced movie mogul Harvey Weinstein’s defense team
• In the McCarthy era, one often heard of professors and screenwriters being forced out of their jobs for expressing far-left views. Today it’s conservative professors that are an endangered species on campus. Progressive students have become expert at forcing the dismissal or resignation of professors who allegedly display insufficient sensitivity about racial or gender issues. All too often, such students are able to keep anyone they disagree with from even speaking on campus. Once again, progressives have become the most visible enemies of a core “liberal” value.
• [P]rogressives today are riding roughshod over much of what liberalism once stood for. I hope that old 1960s liberals like me will stand firm, not be shamed into silence, and call out those who challenge our core values, whether from the left or the right.
All this is to say that liberalism, at the core of which is liberty, has been stood on its head. The word has certainly come to mean, for most of us, as statist and antithetical to individual liberty. Many in our political class, academia, as well as poorly informed middle class—Lenin’s useful idiots—buy into the modern liberalism.  At its end, it is left-wing authoritarianism and even totalitarianism masquerading as benevolent governance.
Robert Blechman’s essay is The Wall Street Journal, print addition (June 20, 2019) or on line at https://www.wsj.com/articles/liberalism-isnt-what-it-used-to-be-11561069996?mod=searchresults&page=1&pos=1

The Great Crusade at 75

The pleasant town of Bayeux in northern France is famous for its eponymous tapestry depicting the events leading to the Norman Conquest of England in 1066. Across from the railway station there is a café that serves cold beer and the apple cider the region is also famous for. That establishment bears a sign in English “Welcome to our liberators.” The sign might appear to be incongruous to some of us, except that ten kilometers to the northwest is a bluff overlooking a sandy expanse along the English Channel that for the past seventy-five years has been known to the world as Omaha Beach.
Many words will be written and spoken on this 75th anniversary of D-Day, the beginning of what General Eisenhower called the “Great Crusade” to end the Nazi occupation of Europe, and ultimately win World War II. Today, the word “crusade” is politically incorrect in some circles as being offensive to those who have vowed to kill us and actually have achieved some success in doing so. And we have become accustomed to euphemisms, direct and to the point speech being too harsh for our sensitive ears. That is just as well. The loudest, and most eloquent, statements to be made come from the 10,000 American graves at the top of the cliff and the sound of the waves below.

 

When visiting the beach even this long after the fact, it is not difficult to picture the horror and chaos experienced by the soldiers and sailors who stormed ashore that day. The Germans had fortified nearly the entire coastline of France, as well as the coasts of other occupied countries, into what was called the Atlantic Wall. Various barriers and obstacles had been placed in the water offshore to prevent landing craft from reaching dry land, and to channel invaders into killing zones covered by machine gun bunkers dug into the 100 feet high cliffs above. This required the assault to be made at low tide, leaving a 300 yard open expanse of sand to traverse before the slightest natural cover could be reached. Above the high tide line is another 50 yard stretch of loose sand. Walking unencumbered on loose sand can be difficult; running with 60 pounds of weaponry and equipment, all the while facing withering small arms and artillery fire, has to have been a nearly superhuman feat. Many of the invaders did not make it; that so many did is a credit to the quality of the military training and preparation, as well as the fortitude and power of the survival instinct of the troops. The actual film footage in the Normandy episode of the Victory at Sea documentary demonstrated some of the difficulty, but the bloodiest parts had to have been edited to make it suitable for a 1950s home audience. The fictional first 24 minutes of the film Saving Private Ryan might more accurately portray the horror and difficulty of the assault, but still may be an understatement.

 

Eisenhower said in his address to the American, British, and Canadian service members who were about to land on the beaches: Your task will not be an easy one. Your enemy is well trained, well equipped and battle-hardened. He will fight savagely. They were about to discover that he got that right.

 

It could have been worse. A major part of the plan was to deceive the defenders as to where and when the attack would be made. As previously mentioned, the entire coast-line was fortified. The defending German army was battle-hardened, and exceptionally well-led by Field Marshals Gerd von Runstedt and Erwin Rommel. Their main problem was manpower and munitions. Five years of war, and the continuing demands of the Russian front in the east made critical to the defenders the knowledge of the place and time of the landings. The deception, with some cooperation from the weather, worked. The German defenders were caught off guard at Normandy, and were unable to bring the full weight of their forces to bear until a beachhead was established. But in spite of the withering fire and the obstructions, even Omaha Beach was taken by day’s end. The Americans didn’t get much farther that day, though, and the casualties were huge. This beachhead, established by those soldiers, whose ranks are now thinning day by day, made it possible to end the war in Europe. Nazi Germany unconditionally surrendered eleven months and two days after D-Day. Those few that are left, and those who passed before them, merit the gratitude of us all.
For every victor there is a vanquished. So it must be added that within five years of the victory, the United States, and to some degree Great Britain and France, have become allies, if not friends with Germany during forty years of Cold War, and beyond. There was no doubt then, or today, that the German Army was fighting on behalf of evil masters and a bad cause. Soldiers, most of whom in World War II were not fighting because they wanted to, can nevertheless fight honorably for an ignoble cause (or dishonorably for a good cause, for that matter). Soldiers know this, and once the fighting is over, they are often more inclined than the civilians far from the horrors to let bygones be bygones.

A poignant story related in a British history magazine relates the ordeal of two soldiers, an American and a German defender who shot him at Omaha Beach. Both survived the war. Heinrich Severloh manned a machinegun in a bunker in the cliff. He estimated that he fired over 12,000 rounds before he ran out of ammunition for it, and then picked up his carbine to continue shooting at the attacking Americans. Three of Severloh’s rounds hit David Silva, as he and other GIs were scrambling for cover on the beach. The German was later captured and held in a POW camp until some time after the end of the war. He was repatriated in 1946 and took up farming. After reading Cornelius Ryan’s book The Longest Day, published in 1959, Severloh learned that he was the one shot Silva. In 1963, the two former adversaries met each other in Germany. Silva, by that time had taken Holy Orders as a Catholic priest. The two formed a friendship, as former soldiers who fought honorably for opposing sides are often known to do, and corresponded for many years. They both suffered of the circumstances that attend the fog and maelstrom of war.

 

But the story of Severloh and Silva’s later relationship is only an aside. The honor today goes to Silva and his fellow servicemen who stormed the beaches on the fateful day. They we salute.

Crashes and Causes

The two fatal crashes within months of each other of Boeing 737-MAX aircraft is not the first situation where a new category of airplanes entered service with a dangerous design flaw. In 1952, the De Havilland Comet, introduced by the British Overseas Air Corporation (BOAC) as the first passenger jet, had three fatal incidents shortly after its introduction. The airplane was soon grounded and investigation determined that the structure was not sufficiently strong to withstand the cyclic pressurization and depressurization required to fly at high altitudes. The investigation and remedies took nearly six years before the Comet would again fly, but by that time Boeing’s 707 had gone into service and eclipsed the British aircraft.

The one-time U. S. aviation leader Lockheed designed and built the Electra L-188, (known as the Electra II, as it had a 1930s model of the same name), in the late 1950s. The Electra II was a turboprop, using gas turbine, rather than conventional piston, engines. It was kind of a hybrid jet-propeller, considerably more powerful than the piston-props, like the Douglas DC-7, then in wide use in the United States.

In September 1959, a Braniff Airways Electra came apart in mid-air in a thunderstorm near Buffalo, Texas on a flight from Houston to Dallas. All of the passengers and crew were killed. There was no immediate explanation for the crash. A few months later in early 1960, a Northwest Orient Electra suffered a similar fate near Tell City, Indiana, on a flight from Chicago to Miami. Again, there was no apparent reason, though by then air turbulence was suspected as a contributing factor. The aviation industry and flying public became concerned and calls were made to the FAA to ground the Electra.

At the time, few Americans used flying as their mode of long distance transportation. Private railroads still had passenger trains, though they were slowly fading from the long distance scene. The Interstate highway system was significantly reducing travel time by automobile. The airline industry was growing, but many, if not most travelers were unconvinced flying was altogether safe. There was no Twitter, and even national television news was in its infancy, and sparse. No public groundswell demanded grounding the Electra. Because of the suspected turbulence factor, experts believed that ordering speed limitations on the airplane would provide a sufficient margin of safety while the CAB (forerunner to the NTSB), Lockheed engineers, and other specialists sought the probable cause. The FAA Administrator Najeeb Halaby (whose daughter Lisa later became Queen Noor upon marrying the King of Jordan) agreed and issued speed restriction but declined to ground the Electra.

It did not take long for the investigators to find the probable cause. An obscure law of physics, known as whirl-mode flutter, was the culprit. The propellers on the turbine engines caused flutter, not unlike the wobbling of a spinning top. The propellers of a piston engine would do the same thing, but the turbines were much more powerful. The wobbling was compensated by the stiffness of the engine mounts to prevent imparting it to the wings. When flying into turbulence at a speed that caused the wings to flex at a frequency that coupled with that of the engines’ flutter, a phenomenon called harmonic coupling, the stress would cause metal fatigue and the wings could snap off. The solution was to stiffen the engine mounts. Lockheed modified all of the Electras in service and designed newer ones accordingly. No other Electra went down as a result of this cause.

The fix did not do Lockheed much good, however. The airlines and passengers lost confidence in the airplane, and pure jets, like the DC-9 and Boeing 707, much better transportation in numerous ways, were rapidly coming into service. Turboprops were passé, except for short-haul and cargo purposes.

What about the 737-MAX issue today? Well, I am not about to second guess the FAA. Grounding the aircraft may be overly cautious, but they know vastly more about the facts and circumstances surrounding the accidents than the general media and public know. A Southwest Airlines pilot, who must remain anonymous, has opined that Southwest’s pilots knew about the software problem, and how to compensate for it. Whether the pilots of the Indonesian and Ethiopian air carriers had the same information has not been disclosed as of now. One factor that could have affected those pilots’ appreciation of the issue is language. The international language of aviation is English. Manuals for aircraft manufactured in the United States are written in English. Idioms and nuances do not always translate well. Anyone reading the instruction for consumer electronic devices manufactured in Japan has seen some strange phraseology.

But there is a more basic issue. How much should computer software and the so-called “artificial intelligence” take over the judgment of trained and experienced human beings, particularly when lives and valuable property are at risk? A 2006 article in Scientific American, “The Expert Mind,” showcased a study that becoming truly expert in any discipline took ten years of experience. Airline pilots are required to have 1,500 hours to obtain an Air Transport Pilot (ATP) license and around 5,000 hours (more than 6 years minimum or around 20 hours in the air per week) to be a captain for a long haul aircraft. Computers can help with many tasks but ultimately, they are only a tool.

It appears aviation has come to a point where computers can fly a plane, from take-off to landing, making pilots redundant other than as system monitors. There are other disciplines were this phenomenon is occurring, often to our detriment. It is a point too far when bad software can actually prevent pilots from taking the stick and flying the airplane, and those pilots rely on the program to make decisions until it is too late. If it is determined to be what happened in the recent 737-MAX plane crashes, it should be a lesson for the aviation community.

Logic and the Presumption of Innocence

I recently listened to an interview on the Dallas NPR radio station KERA with author Eugenia Cheng. Dr. Cheng is a British mathematician who, interestingly enough, is currently Scientist in Residence on the faculty of the School of the Art Institute of Chicago. Her recent book the Art of Logic: How to Make Sense in a World that Doesn’t. Dr. Cheng was articulate, logical (of course), and interesting. Most points she made were apt and helpful to anyone interested in the operations of discourse and persuasion. Those abilities are part of the stock in trade of lawyers, as rigorous logic is the stock in trade of mathematicians.

Dr. Cheng mentions the phenomenon of a paradox in mathematics and its application in human interactions. One situation she considers paradoxical is prominent in recent events: Whether to presume the accuser or the accused in a sexual misconduct charge. The paradox is that, on the accused is presumed innocent, the accuser is presumed to be untruthful. The accuser is the put to the burden of reliving the trauma in proving that she (usually a “she”) is telling the truth. If it is wrong to make an (alleged) victim prove her case, the presumption of innocence for the accused fails. She doesn’t directly say this, but Dr. Cheng gives the impression, and she’s certainly not alone, that in sexual misconduct allegations, the accuser should always be presumptively believed. This is so because sexual impropriety is so traumatic, the fact that one comes forward with an accusation is seen as a courageous act that deserves respect. Or, “why would she if it wasn’t true?”

The presumption of innocence is the “golden thread” that runs thorough our jurisprudence. It’s based on the principle that it is better that 10 guilty persons get away than one innocent person be convicted, and that the burden of proof is on the one who asserts an accusation or a fact. The first principle is ancient in the common law; it was articulated by William Blackstone in his Commentaries on the Laws of England and affirmed by the courts of the United States and most nations in today’s world. John Adams, in his defense of British soldiers accused in the Boston Massacre, explained the rationale, and the logic, underlying the principle:

“It is more important that innocence be protected than it is that guilt be punished, for guilt and crimes are so frequent in this world that they cannot all be punished.

“But if innocence itself is brought to the bar and condemned, perhaps to die, then the citizen will say, ‘whether I do good or whether I do evil is immaterial, for innocence itself is no protection,’ and if such an idea as that were to take hold in the mind of the citizen that would be the end of security whatsoever.”

Yet another pertinent adage is that “One might as well be hanged for a sheep as a lamb.” At English common law refers the penalty for any theft of any livestock was execution by hanging. If there is no difference in the penalty, one might as well steal a more valuable wool-bearing mature sheep as a lamb. There’s no point in going half-way. This is one reason the case law and statutes evolved and settled on a graduated scale of penalties depending on the seriousness of the offense.

The Supreme Court has recognized that “the standard of proof [at a minimum] reflects the value society places on individual liberty.” When the punishment of a crime or cause of action poses a greater threat to a person’s interest, that crime or cause of action must be adjudicated with greater due process protections to the accused.

Applying these notions to cases of sexual harassment and sexual assault one can see why a presumption of innocence is a good policy even if the paradox were to create “presumption of guilt” for the accuser until she/he proved the accusation. The accuser suffers no penalty for making an accusation she cannot prove, unless the accusation is demonstratively frivolous, in which case the burden of proof shifts to the accused.

The principle of J’accuse (which contrary to the belief of many, is not the law in France – the Reign of Terror taught the French a lesson in that regard) where an accused must prove their innocence, harkens to the time of the Medieval Inquisition and totalitarian and authoritarian states in the present and recent past. It can only be justified based on providing more efficient administration and enforcement of mores and laws.

Dr. Cheng mentioned at one point that the potential harm that could result from certain activities should dictate the harshness of applying certain rules. A corollary to that notion is the burden of proof standard. In law, there is a continuum. “Probable cause” means there is sufficient evidence that an offense has occurred and a particular person or persons have committed it. This is the standard for arrests and searches.

“Preponderance of the evidence” means more likely than not, or 51% likelihood. This is the general civil standard. “Clear and convincing” is somewhat amorphous, but it would apply when an important right or interest might be impaired. Obtaining an education is one of those interests. The “beyond a reasonable doubt” is the criminal standard when the state may take an accused’s life, liberty, or property.

An example Dr. Cheng suggested in her interview was, in the case of driving under the influence of alcohol, zero tolerance for exceeding a statutory blood alcohol limit is appropriate. Her reasoning was that the consequences of a wreck caused by and an alcohol-impaired driver were potentially so catastrophic. But that rationale could apply to any violation. Anyway, the blood alcohol limit, in most states, only creates a presumption which might be sufficient probable cause for an arrest. Presumptions can be rebutted. Beyond a reasonable doubt is still the standard, as it should be.

Regarding sexual harassment and assault, there has been a recent controversy about the appropriate burden of proof, and whether an accuser should be subject to cross-examination by an accused or the accused’s lawyer. And how much inappropriate behavior should be tolerated before reporting it and imposing substantial penalties. I agree that is a knotty problem.

In the case of forcible rape, severe punishment is appropriate because of nature of the harm to the victim. Somewhat milder sanctions for non-consensual sex occasioned by overreaching or cognitive impairment might lie, but any unwelcome touching is technically assault and battery, which can be both a criminal offense and a civil cause of action.

More problematic is allegedly offensive verbal conduct and sexual innuendo. Freedom of expression, as a Constitutional guarantee requires a narrow standard. The legal standard articulated by the Supreme Court is that to be sanctionable by state action, such conduct must be severe and pervasive. When that standard applies is a fact issue that depends on the circumstances. Mere rude comments, especially when isolated, meet that standard could not meet. The speaker of isolated lewd comments might be reported and cautioned. But zero tolerance often equals zero common sense.

Dr. Cheng makes a valid point that logic is not necessarily a persuasive vehicle. Few of us measure up to Mr. Spock. Emotions have a significant role and will often override the most reasonable and logical argument. Medieval universities taught the trivium whose subjects were logic, rhetoric, and grammar. Logic teaches how to systematically reach conclusions; rhetoric teaches how to persuade through emotions. Grammar teaches how to articulate with precision. Aristotle’s approach was similar: ethos, and pathos; that is, logic, authority, and emotions.

Jury trials, and to a lesser extent, trials by judges alone, is that persuasion is a two-step process. First, an advocate must cause the fact-finder want to find for his side, and then suggest a legal reason for doing so. The emotional appeal to a judge must be much more subtle, usually couched in terms of public policy, or fear of higher court reversal, but it is important. The legal authority and the logic of its application complete the argument.

Amazon not so Amazing

All of the hand wringing over Amazon’s choosing Washington D.C. and New York City over the Texas location for its HQ2 is misplaced. Jeff Bezos did not choose the location for his second headquarters because of access to a supposed pool of talent or quality of life for his workers. He chose it for money and political access. New York and D.C. essentially bribed Amazon to locate in their environs, but there’s really more to it than that. If history is any guide to the future, it won’t be long before Amazon faces a serious antitrust problem. Little over a century ago the railroad robber barons, the steel tycoons, and the oil magnates enjoyed the rapid growth and fantastic profits similar to those Bezos and other tech companies have today. Their success provoked antitrust legislation and the breakup of the huge trusts and monopolies. The laws that ended the hegemony of monopolies are still on the books. Bezos has ingratiated himself with, and poised his company’s location to secure access to, the big political donors and lobbyists to forestall antitrust action against his company. DFW is better off without Amazon. There are better ways the assembled and projected bribe money can be spent to improve our area.