A Citizen's Guide to Indiana

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School Grading Philosophy

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I was reading a book on school grading metrics, as one does on a Sunday. The book is “On Your Mark: Challenging the Conventions of Grading and Reporting” by Thomas Guskey. Warning to the reader: I read the book pretty quickly and this is some stream of consciousness on my part. So any mistakes are likely on my end and not on the author’s.

One issue is that the use of a single grade is often an amalgamation of potentially confounding variables that, ultimately, makes it difficult to tell what a grade represents. One example he gives is two “C” students. One is diligent, grinds away, participates in class, turns everything in on time but ultimately what the student produces is unremarkable. The other is not terribly diligent, turns work in late, has attendance problems, but what he does produce is excellent, demonstrating good understanding of the material and penetrating insights.  These are very different students but the grade is the same. Some systems — I think Canada was referenced — deal with this by giving separate marks for product, process, and progress. In the example I gave, the first student would have a good process grade but a mediocre or poor product grade. The second student would be the reverse. Progress would tell you more about the impact the class had had on the student’s knowledge.

Another issue is a sort of illusory precision we give our grades that can have some pernicious effects. Categorizing student achievement in five broad categories has its challenges, but is doable. Something along the lines of excellent (A), decent (B), acceptable (C), poor (D), and unacceptable (F). The difference between 83% and 86% is going to be arbitrary, dependent on a bunch of variables and teacher idiosyncracies. There is really no foundation showing that these metrics are telling us what we want to know. The author points out that by making the scale 100 points and setting the “D”/”F” line at 60%, you’ve now created 60 points of failure on the scale with only 40 points of passing work. You’re using up a lot of real estate on the failing end of the scale that’s not really helping anyone. Combine that with the confounding process variable I mentioned above, and you potentially end up with something like a late assignment being given a 0 — more than half a grading scale away from a passing grade; you know nothing from this about the student’s substantive knowledge of the subject matter; and the student is in an academic hole that is a great deal deeper than it would be without this illusion of precision.

And maybe the biggest issue is that we have grades working at cross-purposes. What are we trying to do with these things? Is the purpose of our educational system to develop academic proficiency or to identify and select the best and the brightest? If you’re trying to develop academic proficiency, you will ideally develop a system that gets all of your students to the desired levels of proficiency. If that’s the case, you’ll end up with a bunch of kids at the highest end of the spectrum. On the other hand, if you’re looking to rank, filter, and sort the students, then you’ll implement a grading system that exaggerates the distinctions to make things easier for university admissions officers and whatnot. (Part of that “whatnot” includes a cultural sense that there can’t be meaningful success without the failure of others. This, in turn, I think comes from a sort of Manichean idea that there is no good without evil. But, I certainly digress.)

This final bit is more me than the author, but poking at our grading system and questioning why we do what we do, you can see some of the accretions from bygone years. There are echoes of the 19th century when education was more of an aristocratic thing, used to justify and entrench privilege. There are echoes of the industrial revolution where we tried to standardize and mechanize everything. There are echoes of the Progressive Era, seeking some kind of objective perfectability of people and the related drift into eugenics.

Our reaction to change is probably going to reflect some of that entrenched privilege as well. When a high socioeconomic status area embraces the idea of designing a system where almost everyone is able to attain the academic objectives, it seems plausible and everyone getting As and Bs doesn’t seem as objectionable. When this happens in a low socioeconomic school system, you’ll get more of the protests about grade inflation and participation trophies. The aristocracy is to be nurtured, enhanced, and preserved. The masses are to be goaded and culled for their own good.

Like I said, this was all a bit stream-of-consciousness for me. So, I don’t have any strongly held opinions here. I just thought there were some interesting ideas to chew on.

The Expensive Lesson of ILEARN

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Presumably filled with ILEARN money leaving the state.

The State of Indiana is paying $40 million to the American Institutes for Research for a test that reaches the conclusion that 40% of West Lafayette Community School Corporation students lack proficiency in English and/or Math. I was hoping the ILEARN vendor contract had a “you get a refund if our product turns out to be bullshit” clause in it. Because that could have been useful.

I’m not shy about bragging about the West Lafayette school system. We have a bunch of smart kids from educated families and a test that says 39.5% of them are below proficiency in math or English is pretty clearly garbage. This is why it’s important that West Lafayette and schools like it take the lead in opposing the testing grift that has taken root in Indiana. It would be dead easy for our school system to cheer on the testing regime and reap the benefits from leading the pack when it comes to test results. When a school in the back of the pack makes these critiques, it looks like sour grapes and opens the school up to criticism that if they just did their job better, their students would test better. West Lafayette is largely immune from those lines of attack.

So, when the State spends $40 million to get a test that suggests 40% of West Lafayette students lack proficiency, it’s pretty clear the State just pissed away a lot of money. No grift can last forever, and maybe this one is falling apart. Fifteen years ago, Doghouse Riley wrote that ISTEP and similar requirements were “designed to prove that inner-city schools are failures right before we slash their funding, put the students in a lottery to attend schools run by the private sector, and call the whole thing off before it affects too many white people.” (The Washington Post history on Indiana school privatization suggests the ball really started rolling back in 1996.) My take has been that the push for vouchers and charters has been designed to subsidize religious education, break the teachers’ unions, and financially reward friends and well-wishers of the privatization advocates.

If Doghouse was right that the tests were intended to prove that the wrong sorts of schools were failures, the ILEARN is even more of a debacle. Having a test that makes good schools look sketchy might open people’s eyes to the possibility that the metrics were questionable all along. Combine that with the fact that we now have decades of data showing that charters and vouchers don’t improve outcomes. Throw in a particularly egregious smash and grab like the Indiana Virtual Schools, and suddenly the advocates of privatization as a market-based savior for the plight of underprivileged students trapped in “failing schools” start to look pretty silly. The man behind the curtain is becoming more obvious.

Delts at Miami suspended until 2034

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The Daily Beast and any number of outlets are reporting that Delta Tau Delta at Miami University has been suspended for 15 years due to hazing. I’ve mentioned before, by way of explaining that Paul Ryan never really had a chance to get my vote, that my fraternity did not hold the Delts in high esteem back when I was in college. So, I’m experiencing a fair bit of schadenfreude at the news. The fraternity had apparently had disciplinary problems in the early 2000s and were put on probation in 2016. Then along comes this incident where, among other things:

“Call 911. I feel like I’m going to die,” said John*, laying in his dorm room at Miami University in Ohio.

In the early morning hours of March 17, 2019, John had just escaped an alcohol-drenched violent hazing at the school’s Delta Tau Delta chapter, which featured a spiked paddle, according to a report released by the university last spring.

This month, the university informed the fraternity that it would be suspended for 15 years—until March 2034—because of that night, which resulted in John’s hospitalization with a blood-alcohol level of .231, according to the report. (For reference, the law considers an individual legally impaired at 0.08.)

. . .

That night, John said he was thrown on the ground, had liquid poured on him, was slapped in the face and then forced to do pushups while being kicked on both sides by multiple people.

In the police report, John noted that at some point after he began crying over the pain from being slapped with the spiked paddle, he said, “I am not going to be a part of this. I’m leaving,” but that the whole room went silent and it scared him.

“I was then told by an unfamiliar voice, ‘You will be okay. The first one hurts the most but now you are numb,’” John told the officer.

Why does this kind of thing continue to happen? My own fraternity had abandoned hazing when I was there in the early 90s. The worst I got was being told to Xerox the bottoms of my feet and have ten girls sign the copy. I had to find an out of the way copier, figure out how to get the bottoms of my feet copied, and then embarrass myself walking up to strangers at the library. But it was also kind of fun and nobody got hurt. The girls mostly laughed and none of them seemed put out by the request. I think there were maybe a couple of other things that I don’t remember, but they would have been mild and didn’t involve drinking or pain. Even so, they seemed to serve their purpose as a rite of passage.

But, almost 30 years later, we have the Delts using a spiked paddle, getting their pledges dangerously drunk, and beating them. One of the texts in the Daily Beast report has one of the fraternity brothers saying that it “turns boys into men.” That’s toxic nonsense. There’s nothing manly about letting people abuse you, particularly for no useful purpose.

My Dad told me a story about his fraternity in the early 60s. He and some of the other brothers were talking about getting rid of hazing. There was a fair amount of resistance to this idea based primarily on the notion that they  had to go through it. New pledges should have to suffer the same way. Beyond the “I had to do it, you should to,” I think there are also parallels to corporal punishment. People resist evidence that spanking and other corporal punishment doesn’t lead to better behaved kids and more responsible adults because their own parents spanked them. The idea that the beatings they suffered at the hands of their parents was useless and avoidable is emotionally painful. So, they want to imbue their suffering with meaning. If hazing doesn’t “turn boys into men” or tighten the bonds of brotherhood or whatever, then it’s just your older friends being needlessly cruel to you. And that’s emotionally painful.

Maybe in 2034, the Delts can kick the habit.

 

Kauai Part III: Na Pali Coast

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Ready to launch

(This is part 3 of an account of our family vacation to Kauai in late May, 2019. I love the traveling, of course. But, I’ve found that having an account of the trip helps me to revisit these trips from time to time. So, while these posts are primarily for my own benefit, hopefully others might enjoy riding along with us, so to speak. Part 1; Part 2.)

On Sunday, May 26, 2019, I may have seen more beautiful things than I’ve ever seen in a single day in my life. It began at the cabins at Koke’e. An ambitious rooster woke me up at 2:30 a.m. I was able to go back to sleep and woke up for real at 5. We packed up and were ready to go at 6:30 a.m. (Recall that this was on the heels of a hectic schedule at home prior to vacation, a 24 hour travel day on Friday, and a good bit of hiking (with flat tire!) on Saturday.)

Feeling fantastic.

Among other things, we packed up the firewood we had bought for the cabins. It can get a little cool up as high as we were, but we had fairly warm nights and didn’t use much wood. This would come in handy later. The drive out of the park was tough. We were on a schedule, trying to make our catamaran tour before the boat left without us. We took a wrong turn, and then one of the younger boys threw up on the winding road. We had some anxiety about getting to the catamaran trip late, but ultimately we made it to “Captain Andy’s” on time. The vessel was comfy and the crew was good. There were about 49 people on board. I can’t remember our captain’s name, but he said he’d come out to Kauai because his mom was working in real estate there. He ended up pursuing his boating license and was now in charge of the catamaran up the Na Pali coast. Snorkeling and getting in the water on this trip is a little hit and miss, apparently. For us, it was a bit of a “miss.” We got in the water at one point, but it was a little choppy, and the visibility for snorkeling was limited. Doing cannonballs off the deck was fun though.

The boys had a slightly different experience.

With the choppy seas, about half of our party got sick. At one point, the girls all had their heads on a table at the back of the ship and looked like they’d been over served. Cole, on the other hand, had the time of his life. During the worst of it, he planted himself as far forward as the crew would let him and looked like a ship’s figurehead cutting through the water. He loved the bounce and the spray. Amy and Harper had a distinctly different experience. A pod of spinner dolphins swam alongside our boat, we saw flying fish, and towering over all of it were the otherworldly cliffs of the Na Pali coast. It’s as far west as I’ve ever been, and it was like the real world was giving way while we were on the Voyage of the Dawn Treader, headed for the far reaches of Narnia or something.

Ready for some saimin!

When we got back to shore, the girls made a quick recovery, and we made our way back east and north where we were staying in Princeville on the north coast. (The road doesn’t go quite all the way around Kauai, so to get to the north from the west side of the island, you have to go all the way back around via the east coast.) As we passed through Lihue, we stopped at Hamura Saimin. In general, we didn’t have as many successes with food as we had had on the Big Island, but Hamura’s was one of those great successes. Saimin is a Hawaiian noodle dish with Japanese, Chinese, and Filipino influences. It has noodles with broth and onions, fishcake, and spam or other meat products. Hamura’s is nothing fancy, just a lunch counter, with a few dishes, mostly saimin. It was terrific.

We finally made our way to Princeville and enjoyed some beers on the patio at the house we were renting.At the end of the day, we watched the sunset over Hanalei Bay from the grounds of the Hanalei Bay Resort. The popular site for watching the sunset was an immaculately groomed lawn at the top of a steep hill overlooking the bay. This was accompanied by what we’d come to call ‘sunset music’ – a few people would come out to the lawn of the resort overlooking the bay and play a tune on their guitar or ukelele as the sun went down.

Not really a good segue for this, but a few sidenotes: Keeping with our tradition from the last visit to Hawaii, we had the radio permanently tuned to the station playing island music. Harper quickly became the master of the island playlist – adding a song whenever we heard one that we particularly enjoyed. “Slippahs” by Kepa Kruse was my favorite. The three girls shared a room. Rather than sharing a bed, Harper decided to sleep in a chair with a footstool which she happily did all week.

Gallery:

Kauai Part II: Koke’e State Park

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(This is part 2 of an account of our family vacation to Kauai in late May, 2019. I love the traveling, of course. But, I’ve found that having an account of the trip helps me to revisit these trips from time to time. So, while these posts are primarily for my own benefit, hopefully others might enjoy riding along with us, so to speak. Part 1 is here.)

One of our cabins at Koke’e.

The morning of Saturday, May 25th began with mediocre coffee that tasted of onions. Probably had to do with the coffee maker in the cabin. The accommodations were pretty bare bones but serviceable. We had some scones from the Big Save that were all right. Then we went to explore Koke’e. Problem was that our car had a flat tire. We seem to have hit a nail or something the previous night and the air was completely out of it. Jason and I put on the spare. We handed the lug nuts to Cole and proceeded to make “Christmas Story” jokes. (“Ooh fuuudge . . . only I didn’t say “fudge.”) While we were changing the tire, some folks were setting up for the “Pedal to the Meadow” bicycle race – a 15.75 mile race that starts at sea level in Kekaha and ends in the Kanaloahuluhulu Meadow up at about 3,800 feet. Our cabins were about a quarter mile from the finish. After getting the tire changed, we finally got under way. We drove the rest of the way up Highway 550 where we stopped at the Kalalau lookout, the Pu’u O Kila Lookout, and hiked about 2 miles on the Pihea Trail. This area is on the highland above the northwestern part of the island, looking down to the Na Pali coast. “Rugged and beautiful” is a good description, I think.

Fuuudge!

On the hike, I scared the two younger boys (ages 7 and 10), passing along my dad’s “mountain talk.” Some years ago, when I came out to Colorado to, among other things, explore the mountains there, my Dad who lived in Colorado was definitely happy to see me taking an interest. He was generally a jovial, jokey kind of person, but at one point, he got deadly earnest and told me, “Doug, if you don’t take them seriously, those mountains will kill you.” They are beautiful and fun to enjoy, but it’s not an amusement park. As we were hiking, the boys were getting a little close to the edges of the cliffs and whatnot, so I pulled them aside and gave them the talk. They don’t have a lot of direct experience with me, so I might have looked like a three-eyed monster to them at that point, but I think it left an impression. When we got back, we had lunch at the Koke’e lodge. The food was outstanding, definitely better than you’d expect from a lodge.

Living on the edge.

After lunch, due to the flat, Amy & I had to make the long drive back to Lihue to swap out cars with the rental agency. The roads in the state park were probably not a great idea on the doughnut tire. Theoretically, road side assistance came with the rental, but we had no cell service, so just taking the car back was realistically our best option. While we were at the rental place, Amy helped an Australian couple secure their child car seat which they were having trouble navigating. It’s been a lot of years since we had a kid in a car seat, but this is apparently one of those “riding a bicycle” things that you never forget. We also met some travelers from Logansport who were staying at the Marriott in Lihue.

On our way back, we stopped at some overlooks of the Waimea Canyon which is pretty incredible. Known as the “Grand Canyon of the Pacific,” it was created by both erosion – it takes in rainfall from Mount Wai’ale’ale, one of the wettest places on earth – and from the catastrophic collapse of the volcano that created Kauai. Meanwhile the kids stayed back with our friends. Jason apparently treated them to some off-roading in their rental car over some fairly rough terrain to get to a trailhead. Cole seemed particularly taken by the off-roading. (Just what you want when your boy is about to get his driver’s license.) From the trailhead, they hiked to a spot with a pool and waterfall that made for some good climbing and splashing around.

Dinner was improvised chicken and asparagus. The evening was rainy. We had 10 beers on hand that we split between the 4 adults and had generally a good time. Bed time was early as we had to get up at the crack of early to get to a catamaran trip the next day. As Hawaii time is 6 hours behind, Indiana, these time frames were no problem.

Gallery:


 

Kauai Part I: Travel, Seattle, and Kokee State Park

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(This is part 1 of an account of our family vacation to Kauai in late May, 2019. I love the traveling, of course. But, I’ve found that having an account of the trip helps me to revisit these trips from time to time. So, while these posts are primarily for my own benefit, hopefully others might enjoy riding along with us, so to speak.)

Photo Op at the Space Needle

It was one of those vacations that started with me coming in hot from my regular life. Lots of work stuff in April and May combined with soccer season left me feeling more like I’d simply abandoned my responsibilities rather than actually coming to a good stopping place. That was more illusion than real and probably illustrated the fact that I needed to take a break. We left on the afternoon of Thursday, May 23. Amy introduced me to Portillo’s on the way up to Chicago. The Chicago Dog and cheese fries were a good starting point for vacation.

We were catching an early flight out of O’Hare, so the four of us crammed into a Comfort Inn in Des Plaines that night. The hotel was relatively nice on the surface, but seemed just on the edge of falling apart if you scratch the surface: Just little things like a loose post on the baggage trolley and a wobbly rail in the elevator. The chief advantage of this place was that we could get a night’s sleep, leave our car for the duration of the vacation, and get a ride to the airport all for not much more than parking alone would have cost near the airport. So, despite my critiques here, it more than met our needs. Random note: Before falling asleep, Cole & I watched some video game championship that was being broadcast. Video games have come a long way!

Harper at the Space Needle, humoring Dad with a picture

The next morning (May 24), Amy got up at 3:30 a.m. and the rest of us got up at 4 for what would end up being something like 21.5 hours of travel. At the airport, we met up with our family friends with whom we’d gone on a vacation to the Big Island four years earlier. The first leg from O’Hare to Seattle was uneventful. Harper had to sit in a row with strangers but she slept through most of it. (In fact, at one point, I think her head was on one of the strangers while she was asleep.) We had a 6 hour layover and decided to kill time by going out to the Space Needle. On some level, I thought this was inviting trouble because of the uncertainties of traffic and getting back through security. But, as usual, Amy has the better instincts on these things. None of that was a problem, and the side trip was more worthwhile than sitting in an airport terminal. Paulo was our Uber driver over to the Needle. He had the sniffles which I mention because, despite not being a germophobe in general, I’m always paranoid about getting sick before vacation. Once again, my worries proved groundless.

At the food court near the Space Needle, we introduced Cole to the concept of the “Bang Bang.” This was something our friend Jason picked up from a comedian somewhere. The idea is that you eat a full meal in one place and then immediately go to another place for another full meal. We’ve never actually done this, but “stop for a Bang Bang?” has become kind of a running joke. The Space Needle itself is touristy but at least briefly entertaining. Kind of perfect for a layover. The architecture is interesting, but you’ve seen it a thousand times before on TV and whatnot. You go up high and see the city. There is an area with a glass floor that’s fun. On the way back, our Uber driver was Paul. He liked to talk. He apparently met his wife at university in Arizona before returning to Seattle. He’d been to Hawaii with his family a few years back. His 60 year old mom did some cliff diving in Oahu. His wife was pretty far along in her pregnancy for most of the trip and somewhat limited on what she could do. (The trip had been planned in advance of the pregnancy.) So now you have the run down on Paul.

Pals

On the way back to Sea-Tac, traffic was light and security was minimal. We had time for a drink and a snack before our flight. Our next leg was Seattle to Lihue on Kauai. I sat with Cole and Madda, one of the daughters from the family we traveled  with. They’re both 15 and have known each other since preschool. As I recall, the fact that they were in preschool together is the reason our families know each other at all. (I have a theory that a lot of adult friendships feature oldest children of a similar age. When you have your first kid, you’ve entered a distinctly new phase in life and need friends who are in a similar phase. By the time you have younger kids, you’ve sort of filled the friendship rosters a little bit.) Anyway, watching these two laugh and joke with each other was fun. They don’t hang out a bunch anymore, but clearly they’ve known each other and enjoyed each other’s company for a long, long time. We landed in Lihue at about 5:30 in the afternoon (10:30 p.m. Chicago time at this point.)

On the Road to Lihue

The car rental places don’t move with a lot of speed in Hawaii, so while Amy waited in line, I killed time watching the chickens outside. Kauai has a lot of chickens. Eventually they’d fade into the background, but at this point they were novel. There was also an entertaining moment where a girl of about 3 or 4 was waiting outside with her dad. He suggested they go check on mom inside. She had a cute little butterfly suitcase. Her face got stern and serious and she expressed concerns about people stealing her butterfly which was in front of the bench next to Cole & I. Clearly, we looked disreputable. From Lihue we drove about 40 miles to Kokee State Park where we were staying in cabins for the first couple of days. Along the way, we stopped at the Big Save in Waimea for supplies and squabbled about directions once or twice because it was dark and we were utterly exhausted. Finally, we finished the long, winding road (15 miles of twists and turns in total darkness) up to Kokee and got out of the car. We were at what felt like the edge of the world, at altitude, miles away from civilization, so the stars were spectacular. Cole was so deeply asleep in the car, it was a challenge to get him up. We used to just pick him up and carry him to bed, but at 15 that’s not happening anymore. Gentle voice, loud voice, light shake, light shake with gentle voice, light shake with loud voice, firm shake with gentle voice, firm shake with loud voice. A few of the latter got his body moving, but it’s clear that his mind was still checked out. We walked him to his bed and got him tucked in. Then we all collapsed and had a good night’s sleep.

Gallery:

On Reading

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Not this is particularly controversial, but reading is good for the brain. In retrospect, I’m a little amazed by just how much I seem to have read as a kid. Near as I can remember, the first book of any substance I read was Jack London’s “White Fang” when I was 9. I don’t remember reading too much outside of my assignments once I got to college. (I’d pick it up more again when I graduated.) It was something I always enjoyed, so it wasn’t any kind of chore or accomplishment. But, what I’ve found is that all of those stories gave my brain a sort of vocabulary or library of metaphors I’m able to use when I see a fact pattern in the real world.

What prompted this idle bit of musing is that, today, it occurred to me that our current political situation in the U.S. might be a little reminiscent of Tolkien’s story of Numenor. In the beginning, it was an island given to the good humans for their service to the Valar and the Elves in their war against Morgoth. The land was prosperous as the knowledge and mastery of its people grew. Eventually their power extended over the seas and around the world. They helped the Elves back in the old country defeat an evil empire. But, a darkness grew. Numenor’s leaders, despite enjoying untold wealth, power, and longevity, found that what they had was not enough. They wanted eternal life. Sauron used this to corrupt them until they worshiped and became the evil they once fought against.

Now, I’m not saying that Trump is Ar-Pharazôn the Golden who will ruin the country in his pride by invading Valinor. But, because I’ve read stories such as these, I have learned lessons about hubris and how a good people can be led astray. Books are full of lessons! Forewarned is forearmed.

(Incidentally, this random, somewhat pointless quick hit type of blog post comes from a notion that generating content for Facebook and Twitter isn’t necessarily the best use of my time. If I feel inclined to ramble to the world, might as well just do it here.)

 

Definition of “Nonparty” – a post ten years in the making

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According to my blog metrics, one of my most persistent source of visits is, somewhat oddly, a post I wrote in 2009 entitled “HB 1318 – Definition of ‘nonparty’ in civil litigation.” As I explained then:

I am a little worried that I do not immediately grasp the significance of Rep. Lawson’s proposed legislation in HB 1318 which changes the definition of “nonparty” in civil litigation. A “nonparty” usually refers to someone involved in an incident that caused damage to someone but who has not been named as a party in the lawsuit. Typically, a victim will sue a tortfeasor for damage caused by that person. The tortfeasor will respond, in part, by saying, “hey, it’s not my fault, it’s Nonparty’s fault.” The victim then has an opportunity (usually) to bring the nonparty into the litigation, but if the nonparty is not named as a party, the nonparty can still be an “empty chair” at trial to whom a jury can assign some or all of the fault. (The nonparty would not be liable to the victim for the jury’s decision in this regard, rather the damage attributable to the nonparty would be money the victim could not recover from the tortfeasor who was named as a defendant.)

In any case, Rep. Lawson’s legislation would change the definition of nonparty from

A person who caused or contributed to cause the alleged injury, death, or damage to property who has not been joined in the action as a defendant.

to

a person who may be liable to the claimant, in whole or in part, for the damage claimed, but who has not been joined in the action as a defendant. The term does not include an employer of a claimant.

 

Today, the Court of Appeals wrote an opinion in the case of NIPSCO v. Josh’s Lawn and Snow. Josh’s was doing some landscaping, didn’t call before they dug, and punctured the gas line. However, before that happened, another contractor, Ziese had done some grading that removed sixteen to eighteen inches of soil, leaving only about two inches above the gas line. When NIPSCO sued Josh’s for the damage done to the pipe (plus, inevitably — attorney’s fees), Josh’s named Ziese as a nonparty. NIPSCO objected that Ziese didn’t owe a legal duty to NIPSCO to leave any particular amount of soil above the pipe and, absent a legal duty, couldn’t be a nonparty to whom fault could be attributed. The trial court didn’t buy the argument and, while finding Josh’s at fault and liable to NIPSCO, found that Josh’s was only 10% at fault and Ziese was 90% at fault, leaving Josh’s only responsible for 10% of the damages.

On appeal, the Court of Appeals notes that NIPSCO “does not argue on appeal that the small claims court should have assessed different percentages of liability to Ziese and Josh’s.” So, basically, on appeal it was going to live and die by whether a person had to have a legal duty — and, therefore potential liability to the Plaintiff — before it could be named as a nonparty. This brings us back to Rep. Lawson’s proposed legislation in 2009. In determining that legal duty and potential liability were not necessary for a person to be named as a nonparty, the Court of Appeals relied on a change to the definition that took place back in 1995. Rep. Lawson was essentially trying to revert the definition back to its old definition. The Court of Appeals explained:

[T]he small claims court was not required to find that Ziese had a legal duty of care toward NIPSCO in order to attribute  fault to Ziese. In Bulldog Battery Corporation v. Pica Investments, Inc., 736 N.E.2d 333, 336 (Ind. Ct. App. 2000), property owner Pica Investments sued neighbor Bulldog Battery for negligence when Bulldog’s property improvements led to increased runoff and flooding of Pica’s property. Bulldog asserted a nonparty defense that the negligent designs of its architect contributed to Pica’s damages. Id. at 337. Pica argued that Bulldog could not name its architect as a nonparty defendant because, pursuant to caselaw, an architect owed no duty to third parties such as Pica absent contractual privity or a design that was so negligent as to create an imminently dangerous condition. Id. In reversing the trial court’s grant of summary judgment to Pica on Bulldog’s nonparty defense, the court noted that until 1995, the comparative fault statute defined a nonparty as “‘a person who is, or may be[,] liable to the claimant in part or in whole for the damages claimed but who has not been joined in the action as a defendant by the claimant.” Id. (quoting I.C. § 34-4-33-2(a), emphasis in opinion). The statute was subsequently amended to define a nonparty as “‘a person who caused or contributed to cause the alleged injury, death, or damage to property but who has not been joined in the action as a defendant.’” Id. at 338 (quoting I.C. § 34-6-2-88, emphasis in opinion). Drawing on the change of statutory definition, the court rejected Pica’s argument that “‘[i]n naming a person as a nonparty, it is implicit that some legal duty must exist as to the plaintiff.’” Id. The court found that the amendment to the definition of ‘nonparty’ specifically excluded the concept of liability to focus instead on causation. Id. Thus, the court concluded that “whether or not the nonparty may be liable to the plaintiff is no longer a consideration.” Id.

The upshot is that a person who is at fault but who is, nevertheless, not potentially liable to the plaintiff can be named as a nonparty, relieving the named defendant of liability for those damages that were not the defendant’s fault even if it means that the plaintiff might not obtain a full recovery.

 

Fear & Loathing of the Poor

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Earlier today, I saw a meme knocking on people who need public assistance because they probably use drugs. The particulars don’t matter a lot – it’s just a jumping off point that reminded me of how often we seem to need to blame poor people for their condition. I think we do this for basically two reasons: 1) fear of becoming poor ourselves; and 2) unhappiness with ourselves for not being more helpful.

By making poverty a moral failing, we can at some level convince ourselves that if we just work hard and play by the rules, we’ll keep ourselves out of poverty. This isn’t entirely irrational. We can hedge our bets to a great extent. But there are a lot of factors way beyond our control, and that’s scary. So, there is a reluctance to acknowledge the structural causes of poverty that could come for us some day. Best to pretend that people who are poor got that way by making bad decisions that we’d never make.

The unhappiness with ourselves for not being helpful is perhaps inevitable to a certain extent. The needs of the poor are well beyond any of our individual ability to remedy completely. Very few of us are willing to take an oath of poverty and live in rags on the street and, even if we did, our personal effort would just be a drop in the bucket. We all draw the line on how helpful we’ll be in one spot or another that comes up short. And that leaves us feeling lacking — even if we’re not engaging in particularly blameworthy behavior. I wish I could remember where I read this — I thought it was Dostoyevsky, but I’ve never been able to find it; in any case, there was an author who suggested that we hate people not for what they do to us, but for what we do to them. And it’s this dynamic that arises when we see poverty that we don’t address while we’re enjoying our overpriced coffee or whatever. That feeling is mitigated when we re-imagine the poor as undeserving.

I’m not suggesting any fixes to poverty here. Just advising that, when you see negative characterizations of the poor, try to evaluate how based in reality those sentiments might be versus whether there is some kind of psychological projection at work.

The mark of the immature man

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So, yesterday, I posted a call-back to my suggestion regarding firearm insurance. Today, it’s a call-back to an admonition to live humbly. Mass shootings have happened enough that I mostly don’t have any more original thoughts on the subject. I tend to think that the sheer volume of firearms mostly explains why other countries don’t have the same struggles we have in this area. But, a cultural attachment to pride might be another part of it. In the Catcher in the Rye, JD Salinger wrote:

The mark of the immature man is that he wants to die nobly for a cause, while the mark of the mature man is that he wants to live humbly for one.

As I said last time:

This quote is from J.D. Salinger’s “The Catcher in the Rye.” I didn’t much care for the book in general, but that quote stuck with me. In fact, it was the subject of discussion in a college English class. It made me surprisingly indignant; I suppose because it belittled as immature things that I supposed to be heroism — going out in a blaze of glory, and all of that. Oddly, I felt like something was being taken away from me even though I had no immediate plans in that direction. In retrospect, I was (as Krusty said of Sideshow Raheem) an angry, angry young man.

The emotional fires of adolescence have cooled, so it’s easier for me to regard this vision of maturity in a positive way. The most recent massacres in Florida is Ohio and Texas are what brought this to mind again. But, it has broader application outside of the gun debate. As a culture, we seem to celebrate dying nobly a whole lot more than we celebrate living humbly even though the latter is generally more beneficial to society over the long term. It’s tough to live humbly though. There’s no particular glory in it. It means grinding out small gains over the long term in a universe that is vast, apathetic, and frequently arbitrary. That certainly does not have the emotional punch of being the bright star of a short but exciting story where you are heroically battling the evil arrayed against you — or at least taking decisive revenge against those who have wronged you. But, ultimately, living humbly is the right thing to do. We should make more of an effort to value and celebrate those who do it well.