For those interested in law and government, you might want to add the Hoosier Law Review to your bookmarks, feed readers, and whatnot. With so many blogs dying off after an initial heyday in the 2000s, it’s good to see a new one pop up and hopefully provide some fresh energy. Its “about” section describes the site as being written by lawyers, law professors, and judges and also that:

Hoosier Law Review is devoted to comprehensively covering the Indiana legal and governmental landscape without bias and according to the highest journalistic and legal ethical standards.

A tall order. I wish them the best of luck.

Ron Shawgo, writing for the Fort Wayne Journal Gazette, reports that Indiana ranks low on the latest well-being index. My working theory is that Hoosiers are inherently mistrustful of joy. If some part of life brings happiness, it’s suspect.

Once again, Indiana ranks near the bottom in the annual Gallup-Healthways Well-Being Index, a state-by-state survey of ourselves and surroundings. If there’s any good news it’s that Indiana rose two notches to 46th place.

. . .

Using measures of purpose, social interaction, financial security, community pride and health, the index attempts to help communities and businesses make decisions on health care and job productivity. If you feel good about yourself, have pride in your community, have supportive relationships and believe your life has purpose, then you are likely a healthy, productive person. The measures intertwine.

Indiana consistently has been in the bottom 10 in the index. Its highest ranking was 38th in 2011.

The criteria (and Indiana’s rank) are:
PURPOSE (39): Liking what you do each day and being motivated to achieve your goals
SOCIAL (41): Having supportive relationships and love in your life
FINANCIAL (33): Managing your economic life to reduce stress and increase security.
COMMUNITY (44): Liking where you live, feeling safe and having pride in your community
PHYSICAL (46): Having good health and enough energy to get things done daily.

It doesn’t surprise me that, even though it isn’t great, Indiana performs best on the financial category. We allow ourselves to prioritize working for money. Observing the attitudes of Hoosiers over the years, I suspect many of our citizens view the other stuff as, on some level, frivolous. Certainly not something we support the government spending money on.

Hawaii, Alaska, Montana, Colorado, and Wyoming end up with the best scores while Indiana, Ohio, Oklahoma, Kentucky, and West Virginia make up the bottom five.

Warning: this little post isn’t going to live up to that mouthful of a title.

Brian Howey writes about a recent conversation with former Governor and current Purdue President, Mitch Daniels. Daniels identifies what I agree is a very real problem with the change in our economy. The shift from manufacturing to a knowledge based economy may leave us producing more than we need, but the production is going to be done by fewer and fewer people:

“Every time human ingenuity has created one of these transformations, people have worried,” Daniels said. “They see what is being lost. It won’t take a third of us to grow food. What’s everybody going to do? Every time up to now, the new economy produced more opportunities than the old one did.”

But the change gripping the United States today is worrisome to Daniels.

“It’s not yet clear to me that it will create sufficient categories of new high-paying jobs,” Daniels said. “Whether there will be enough of them to support a growing population and a middle class like we’ve known, that’s what is bothering me.”

As I view it, we’ll be economically productive enough to create what we need to support everyone as well or better than we ever had. The problem is that our current means of allocating the benefits of that productivity doesn’t distribute those benefits in a manner that will support everyone as well or better than we have in recent memory. Traditionally, there has been some justification in telling someone that, if they weren’t producing and acquiring what they needed to support themselves, it was because they were lazy, and we ought not reward laziness. More and more, it seems to me, there are people who are perfectly willing to work; but the economy has shifted in ways that requires labor less and less. If labor isn’t something the economy needs very much, how do we go about allocating our resources in a way that doesn’t rely on labor as a proxy for merit?

Sen. Tallian has introduced SB 136 which would expand a tax deduction for education expenditures currently available for expenditures on expenses for private schools. This would make the deduction available for similar expenditures in connection with public schools.

This means expenditures in connection with:

enrollment, attendance, or participation of the taxpayer’s dependent child in a public or private elementary or high school education program. The term includes tuition, fees, computer software, textbooks, workbooks, curricula, school supplies (other than personal computers), and other written materials used primarily for academic instruction or for academic tutoring, or both.

The deduction is up to $1,000 per child. Sounds fair.

Sen. Mrvan has introduced SB 33 which would make it a Class C infraction for a retail business to decline to allow a customer with Crohn’s Disease or Irritable Bowel Syndrome to use a bathroom on the premises if such a bathroom was available to employees and it would be safe for the customer to use.

If this goes forward, one item I’d like to see is some mention of an affirmative duty for the Customer to advise the business of the eligible medical condition. Also, the terminology is a little misleading. It defines a “retail business” as “a place of business that is open to the general public for the sale of goods or services.” So far, so good. But, it defines “Customer” as “an individual who is lawfully on the premises of a retail establishment.”

Taking my law firm as an example, I think regardless of the law, I’d let someone who had a medical condition use the bathroom. But, as a general rule, we have debtors come into our office to pay bills we’re collecting on behalf of our clients. Sometimes, they’ll ask to use our bathroom, and if we have no other experience with or connection to the individual, we’ll usually decline and tell them we don’t have any public bathrooms in our office. We have an arm’s length, often adversarial relationship with some of these individuals. They are not our “customers.” But, under this law, they are “customers” in the sense that we’d have to open up our bathroom. Like I said, no big deal if they have a medical condition, but the terminology could be clearer, and I’d like them to have some obligation to put us on notice of the condition. As it’s currently written, they could say nothing, we could decline, and I think we’d be liable for the $100 penalty if they had an eligible medical condition.

Public official compensation has been in the news lately. A report came out that state legislators, despite being “part time,” can make more than part-time money when you count per diem.

Base salary for Indiana lawmakers is just $24,140, but members collect a generous per diem for food and lodging. Legislators receive $159 a day even if they live close enough to the Statehouse to stay at home during the session or if they dine at a lobbyist’s expense.

Leadership apparently ends up making about $65 – $70,000 when leadership bonuses are figured in. Meanwhile, there was a hue and cry over a proposal to raise compensation for Marion County officials. The proposal would have raised the mayor’s salary from $95,000 to $125,000 and council salaries from $11,400 to $16,400.

Raising lawmaker compensation is deeply unpopular. This stems from a variety of factors. People don’t like government. It’s easy to complain that government spends too much as it is. Lawmakers should be ordinary citizens, and ordinary citizens often make much less than lawmakers. Lawmakers are, in effect, giving themselves a pay raise which is always unseemly. But, up to a certain level anyway (I think there are diminishing returns as salaries climb higher), you get what you pay for. And when you look at the overall budgets of the State and Marion County that these officials are charged with overseeing, sweating these salaries seems penny wise, pound foolish. Indiana has a budget of $15 billion and Marion County has a budget of a billion dollars. The mayor’s salary is something like 1/10,000th of the County’s budget.

I don’t expect the intense resistance to public salaries will decline any time soon, but I find it tough to get very excited about what usually ends up being a very minor part of the public budget.

Chelsea Schneider and Tony Cook, writing for the Indy Star, report that the latest round of ISTEP scoring is unreliable. In particular, it appears that there were flaws in the computer program used by CTP McGraw Hill to score our kids’ tests. They knew about the problem but proceeded anyway. To make matters worse, company officials and test scoring supervisors don’t agree on what happened.

Company executives would not speak with The Indianapolis Star, but in a letter Tuesday to the Indiana Department of Education, Executive Vice President Ellen Haley downplayed the problem. She said the issue “was very rare” and “did not affect student scores.”

Seven supervisors who spoke with The Star disagreed. All said they believed the problem was more widespread. Two estimated that tens of thousands of test questions were likely given incorrect scores. Others said it is difficult to put a number on the problem, but it was pervasive enough to merit rescoring the potentially impacted tests.

The company wouldn’t speak with the newspaper and has an obvious interest in minimizing their failures. I don’t know the supervisors or what their biases may be. So, at the moment, the company appears to be the less credible source.

The State’s education policy makers have put a lot of their eggs in this testing basket. Schools, teachers, and students are evaluated based on this testing metric. It was already a problem that we didn’t have a lot of confidence that we were measuring the right things. Now we don’t even know if the measuring tool itself is reliable.

The problem had to do with entering the scores. If an evaluator entered multiple scores quickly using a key pad, the system would record the same score twice — discarding one of the scores entered. A fix was eventually implemented, but apparently re-scoring the tests compromised by the computer error would be expensive and the company opted not to do it.

“We are just assuming that CTB is giving us the correct information,” Warren Township Schools Superintendent Dena Cushenberry said. “There is no checks and balances to the system.”

So, to paraphrase the old question about who watches the watchmen: who is testing the testers?

We’re wasting time and money and not adding much to the education of our kids.

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

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

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

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

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

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

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

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

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

Here dead we lie, by A. E. Housman

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

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

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

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

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

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

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