Month: January 2022

Most courts take the view that “if a trial court reaches the right result, but for the wrong reasons, it will be upheld if there is any basis which would support the judgment in the record.” But Florida courts are unusual in that they call it the “tipsy coachman rule.” (Thanks to Jenny Wilson for the pointer.)

The rule apparently emerged from a Georgia case, but the label didn’t stick as much in that state. Here’s the explanation from what seems to be the font of the rule, Lee v. Porter (Ga. 1879):

It not infrequently happens that a judgment is affirmed upon a theory of the case which did not occur to the court that rendered it, or which did occur and was expressly repudiated. The human mind is so constituted that in many instances it finds the truth when wholly unable to find the way that leads to it.

“The pupil of impulse, it forc’d him along,
His conduct still right, with his argument wrong;
Still aiming at honor, yet fearing to roam
The coachman was tipsy, the chariot drove home.”

The passage itself is from the poem Retaliation by Oliver Goldsmith, apparently written as part of a 1770s rap battle, where a group of writers who knew one another roasted each other with epithets. This one appears to have been aimed at William Burke, a Member of Parliament, perhaps a relative of Edmund Burke, and “one of the supposed authors of Junius’s Letters.”

The immediately preceding epithet, by the way, was for Edmund Burke himself, and began:

Here lies our good Edmund, whose genius was such,
We scarcely can praise it, or blame it too much;
Who, born for the universe, narrow’d his mind,
And to party gave up what was meant for mankind:
Tho’ fraught with all learning, yet straining his throat
To persuade Tommy Townshend to lend him a vote;
Who, too deep for his hearers, still went on refining,
And thought of convincing, while they thought of dining;
Though equal to all things, for all things unfit;
Too nice for a statesman, too proud for a wit;
For a patriot, too cool; for a drudge, disobedient;
And too fond of the right to pursue the expedient.

To go further down the historical connections rabbit hole, Tommy Townshend likely refers to the MP after whom Sydney, Australia was eventually named. Coming soon: Lin-Manuel Miranda, Appellate Procedure: The Musical.

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Upon election to office, politicians come to believe that they have the wherewithal to solve the world’s toughest problems. They usually mishandle the nuts-and-bolts chores they’re charged with addressing, yet dream of altering the Earth’s climate and eliminating enduring human conditions such as inequality and poverty.

Most pols view themselves as the second coming of John F. Kennedy, Abraham Lincoln, or even Ronald Reagan, when most of us just want public servants who make sure the potholes are filled, the streets are marginally safe, the government budget balances, the trash gets picked up on time, and homeless people aren’t defecating in our local park.

The latest example of such governmental hubris comes from the county of Los Angeles which, you know, can’t even put an end to alleged gangs among the ranks of its own highly paid deputy sheriffs nor figure out how to run its child-protective services agency in a competent and humane manner. Now county officials want to “solve” the crisis of loneliness.

Before Christmas, the county Board of Supervisors “took on a problem that is typically private and put it in the public eye,” The Los Angeles Times reported. “They voted unanimously to ask staffers to research how residents are affected by loneliness and isolation and how the county can help—particularly during a pandemic where in-person contact has been off-limits.”

Loneliness is a serious mental-health scourge, but the last part of the above sentence provides insight into the main reason for the current bout of isolation. Governments want to study why we feel lonely and disconnected, but government pandemic rules limited the ability of Americans to socialize with one another as we approach two years of mandated social-distancing rules.

“Loneliness and social isolation can be as damaging to health as smoking 15 cigarettes a day, researchers warned in a recent webcast, and the problem is particularly acute among seniors, especially during holidays,” according to the Health Resources and Services Administration. You probably didn’t even know that there is a federal agency with such a name, but I digress.

“A Harvard University survey conducted in October 2020 found that feelings of social isolation are on the rise during the pandemic, and that those hardest hit are older teens and young adults—61 percent of respondents felt ‘serious loneliness,'” noted a Boston University report. “And social media, where young people live and breathe more than any previous generation, is not helping.”

Say it ain’t so. I’m not sure what Los Angeles County staffers will add to the debate, but the board might have thought about that scenario when it previously embraced draconian shutdowns rather than more reasonable and flexible pandemic-related restrictions. This is such a government phenomenon—create a crisis, then vow to solve it for us.

Fortunately, the county isn’t planning on repeating its mistakes as the Omicron variant emerges, at least not as of this writing. I don’t mean to be too hard on county supervisors, who at least acknowledge the pandemic-related policy causes of the Great Alienation. Their intentions are good, but you know what they say about good intentions.

“We didn’t mean to do it,” Supervisor Sheila Kuehl said during the board meeting. “We don’t mean to cause isolation. But we are, in some cases, a part of the problem.” Indeed. Government officials don’t mean to cause many of the problems they do cause, which is good reason to at least show skepticism next time they want to save us from something.

Do a Google search of “loneliness epidemic” and you’ll find multiple news stories, government statements, and academic reports—some even pre-dating COVID-19. A well-known book from 22 years ago, “Bowling Alone,” spotlighted the crisis in connectedness caused by trends in family, work, and media.

I don’t minimize this issue, but my wife offered my kids the best advice: Get together with friends. Turn off the TV. Log out of Facebook. Perhaps I should put her in touch with county brain trusts. Some issues are beyond the pale of government intervention. Sometimes we have to take control of our lives.

We all play along with the notion that politicians can solve all of our problems, even though we know better. I don’t know anyone who has heard, say, Gov. Gavin Newsom’s soaring rhetoric and come away thinking he’ll really change the Earth’s climate—even as he fails to keep his own Employment Development Department from sending billions of dollars in unemployment funds to scammers.

It’s not a Democrat vs. Republican thing, either, as GOP politicians have suddenly discovered the supposed crisis of masculinity just as they have long bemoaned troubles in the American family. Politicians are adept at mining votes by identifying societal shortcomings, but their solutions always involve giving them more money and power.

I eagerly await Los Angeles County’s report on loneliness, but I still wish county supervisors would spend more time filling the potholes.

This column was first published in The Orange County Register.

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Okay, you’ve got a quintet of action chicks and you need to save the world. What do you do first?

It depends, of course—save the world from what? After nosing around a bit, you learn that somebody somewhere has a computer drive with an algorithm on it that can bring the planet to a complete stop. Planes will fall from the sky, lights will go out all over the place, and writers of shopworn action-chick movies like The 355 will find their checks suddenly failing to clear.

The movie was apparently a passion project for its star, Jessica Chastain. She wanted to make a globe-girdling, Bourne-style adventure film fronted by women, and why not? It’s a better idea than appropriating an already extant male franchise for some sort of lame “Jane Bond” project. But despite its predictable sojourns in places like Paris and Shanghai and Marrakesh, The 355 has its own problems. (The number, by the way, was the code name for a still-unknown female member of George Washington’s Culper spy ring during the Revolutionary War—a pointless cultural nudge for unknowing viewers.)

The story is snoozingly simple. The action chicks are of course all kickass operatives drawn from the world’s elite intelligence agencies. Chastain’s character, Mace, is CIA. Diane Kruger’s icy blonde Marie comes from the German Federal Intelligence Service, known as the BND. Computer whiz Khadijah, played by Lupita Nyong’o, hails from the UK’s Secret Intelligence Service, the MI6. Penélope Cruz’s Graciela is a “skilled psychologist” with the, uh, Colombian Intelligence Directorate. And the mysterious Lin Mi Sheng (Fan Bingbing) is…let’s just say she’s Chinese and leave it at that. (The movie was made with significant input from Chinese production companies.)

Not all of these characters succeed in living up to their billings. Khadijah demonstrates her cutting-edge computer expertise by saying things like, “These algorithms are beyond anything I’ve ever seen.” And since it’s clear that Chastain’s Mace is supposed to be a rock of female self-sufficiency (“She works alone, lives alone,” says one of her teammates), it’s a little surprising to see her suddenly start lip-nibbling with her hunky partner Nick (Sebastian Stan), and then, milliseconds later, begin taking off her clothes (to the modest extent that the movie’s PG-13 rating allows).

Most of the film’s shortcomings emanate from its director, Simon Kinberg, a prolific producer and writer whose only previous directorial credit is for the 2019 X-Men: Dark Phoenix, a picture still deeply unloved in the Marvel movie world. Kinberg cowrote the script for The 355 with Theresa Rebeck and Bek Smith, and it’s a graveyard of DOA dialogue: “Trust no one.” “We can do it the easy way or the hard way.” “You were beaten by a bunch of girls.” One intel chief announces his old-school misogyny by telling a woman she has “daddy issues.”

Action movies can get by with so-so dialogue, but the action has to grab you. Kinberg and his cinematographer, Tim Maurice-Jones, don’t bring much flair to the action sequences we see here. The camera never seems to be situated anyplace interesting, and it doesn’t feel like anyone really cared. There’s an elaborate battle in a fish market, shot from the most uninventive vantages, that is dull nearly to the point of indifference.

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“Democracy is the theory that the common people know what they want, and deserve to get it good and hard,” H.L. Mencken once wrote. It’s a wonderfully cynical sentiment that rings true when you realize that many people currently trudging through air-travel misery think that ritualistically lining up to be prodded and groped by the Transportation Security Administration (TSA) is a worthwhile part of the ordeal. That would be fine if they reserved the experience for themselves, but they drag the rest of us through what evidence says is a pointless gauntlet. It’s a reminder that popular policy isn’t the same thing as wise and sensible policy.

Even as many would-be travelers remain stranded in airport purgatory, “79% of Americans say that airports should prioritize screening for security threats over saving travelers time and money,” according to recent polling by YouGov America. Can it be that these people actually relish taking off their shoes, surrendering water bottles and Play-Doh containers, and posing spread-eagled for electronic scanners?

Nope. People may be freaky, but they’re not generally emulating Bill Murray’s overenthusiastic dental patient from Little Shop of Horrors. Adds YouGov, “over half of people who have gone through security in the past five years say the experience is somewhat (41%) or very (18%) inconvenient.”  

The problem is that Americans way overestimate the effectiveness of the TSA and overall airport security efforts at keeping them safe from bad actors. Truthfully, the fact that they think the TSA accomplishes much of anything at all beyond making air travel a bigger pain in the ass reflects a massive disconnect between what people think is a good idea and what actually has a positive effect on the world.

“Homeland Security conducted an investigation in 2015 which found that undercover investigators were able to successfully smuggle mock explosives and banned weapons through Transportation Security Administration checkpoints in 95% of trials,” YouGov helpfully points out. “In stark contrast to these findings … More than three in four Americans say it is very (37%) or somewhat (40%) likely that airport security would stop the person” smuggling a weapon onto a plane.

That the TSA is completely ineffective and an abject failure at everything it does was apparent long before we mourned its 20th anniversary last year. Experts have long emphasized that the TSA is geared towards assuring the public that Something Very Important is being done to keep people safe, even as money and energy is squandered on pointless activities and useless devices. Security expert Bruce Schneier dubs the TSA’s role “security theater” since it’s geared for public consumption rather than effectiveness.

“The TSA is failing to defend us against the threat of terrorism,” Schneier pointed out in 2015. “The only reason they’ve been able to get away with the scam for so long is that there isn’t much of a threat of terrorism to defend against.”

What set Schneier off in 2015 (though he has followed the issue for years) was that Homeland Security test mentioned by YouGov revealing a 95 percent failure rate to detect explosives and weapons. Two years later, the TSA achieved an identical 95 percent failure rate in a test at Minneapolis–Saint Paul International Airport. National tests that year were “in the ballpark” of an 80 percent failure rate.

Before then, former TSA head Kip Hawley had called airport security “hopelessly bureaucratic” and “brittle.” The real security improvements after 9/11 were dynamic and largely invisible.

“Never again will a terrorist be able to breach the cockpit simply with a box cutter or a knife,” he wrote in 2012. “The cockpit doors have been reinforced, and passengers, flight crews and air marshals would intervene.” 

But the TSA isn’t in the business of keeping Americans safe. It’s really in the business of catering to the fears of people who find all of the rigmarole at airport security reassuring.

To performative security measures we can add the federal public-health requirement that travelers keep their faces covered in airports, on aircraft, and in other forms of public transportation. American Airlines CEO Doug Parker and Southwest CEO Gary Kelly took a ration of flak for saying masks “don’t add much, if anything, in the air cabin environment,” but medical experts agree with them.

“Cloth masks are little more than facial decorations,” commented CNN Medical Analyst Leana Wen, a visiting professor of health policy and management at the George Washington University Milken Institute School of Public Health. 

“In terms of current protection against SARS COV2, the cloth masks would be considered highly ineffective,” agrees Stanley Weiss, an infectious and chronic disease epidemiologist and professor at Rutgers New Jersey Medical School. He suggests cloth masks be saved “for masquerade parties.”

Neither Wen nor Weiss are pandemic-policy minimalists; both favor wearing medical-grade N95 masks. But those masks require proper fitting and are very uncomfortable in extended use. Instead of pushing the public towards further discomfort, the TSA advises that “masks can be either manufactured or homemade and should be a solid piece of material without slits, exhalation valves, or punctures.”

Basically, anything that just looks like a mask gets a big thumbs-up, effectiveness not required. Public-health theater joins security theater as a means of assuring a fearful public that Something Very Important is being done to keep them safe from the threats that occupy their imaginations.

Mencken, it should be noted, also observed that “The whole aim of practical politics is to keep the populace alarmed (and hence clamorous to be led to safety) by menacing it with an endless series of hobgoblins, all of them imaginary.” Terrorists aren’t entirely imaginary, and neither is COVID-19, but it’s certainly possible to keep the public alarmed and clamorous by overstating dangers and peddling bogus snake-oil solutions, especially when people have convinced themselves that snake-oil is a cure-all. 

“Embracing a bit of risk could reduce the hassle of today’s airport experience while making us safer at the same time,” former TSA head Hawley commented back in 2012. He advocated a more-flexible behind-the-scenes approach that wouldn’t be so visible, or annoying, but might accomplish something.

But that wouldn’t be such a high-visibility approach, and it might not be as effective at convincing the public that something is being done as the ineffective security theater that wins such high approval. Popular policy and good policy aren’t the same thing, we need to remember, and government will almost always err on the side of whatever wins public approval.

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1/7/1972: Justices Lewis F. Powell and William H. Rehnquist take oaths.

 

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