The last post was an introduction to Marthaler and the work.

This post focuses on the Trinitarian1 terminology in the Creed:

We believe in one God, the Father almighty …

And in one Lord Jesus Christ, the only Son of God …

And we believe in the Holy Spirit, the Lord, the giver of life.

Some theologians and believers in general prefer to speak of the Triune God using the names, “Creator, Redeemer and Sanctifier” rather than the traditional names of “Father, Son and Holy Spirit.” The fact that the usage tends to be more common in progressive, mainline Protestant denominations leads many to assume that the nomenclature is a modern attempt to use gender-neutral, inclusive language. As one Episcopalian source observes, for example:

This formulation is—as far as I know—a construct of liberal protestant theology without particularly deep roots in Christian practice, especially in the ways it’s coming more and more into use.

Marthaler similarly observes that “some (many?) … feel that the father-figure has been used as a justification of the hierarchical organization of society and the source of many inequalities.” (44)

In fact, however, there is some evidence for a far earlier origin. One commentator traces it to the (unratified) 1689 Anglican Book of Common Prayer, for example.2

Yet, even if it is not a modern politically correct neologism, I am not convinced that the “Creator, Redeemer and Sanctifier” terminology is an improvement on the traditional “Father, Son, and Holy Spirit.” To the contrary, I think there are two serious problems with that formulation.

Scriptural Warrant

Granted, it is obviously desirable for the Church to be all-inclusive, so that all may be saved. Also granted, it is true that God “is neither male nor female” in a literal sense. (43)3

Nevertheless, it is not obvious (at least to me) that non-gendered language is appropriate when speaking the Triune God. The historical Jesus, after all, was indisputably male. At Jesus’ baptism by John, God spoke from Heaven, naming Jesus as “my Son.” Conversely, Jesus refers to God as “Abba” or Father. According to Marthaler, he does so 170 times in the NT. (42) So too do the writings of the New Testament and the early Church fathers.

The Catechism explains that:

By calling God “Father”, the language of faith indicates two main things: that God is the first origin of everything and transcendent authority; and that he is at the same time goodness and loving care for all his children. (¶ 239)

As the Catechism goes on to emphasize, of course, this does not exclude the important role of women in the Church nor does it gender God: “He is neither man nor woman: he is God.” Instead, as Marthaler suggests, this usage reflects the fact that we attribute to God “those ideal qualities we associate with fatherhood: the giving of life, love, faithfulness, continued care and protection, and wisdom that guides and instructs. (43)

Insufficient Monotheism

It has been aptly observed that:

Creator, Redeemer and Sustainer don’t work. They are about what God does not who God is. They are about operations not ontology.

… “‘Creator,’ ‘redeemer,’ ‘sustainer’ are operational or economic names. But trinitarian language is ontological language. It is the language of God’s being, not of God’s doing.”

Or, as another commentator observes:

The actions of God, outside of himself (ad extra), are common to all three persons. The Trinity creates. Therefore, the action of creation is common to all three persons, the Father, Son, and Holy Spirit. Whenever we describe the action of one person of the Trinity, such as the work of the Holy Spirit at Pentecost, the other persons are always there. Pentecost is as much the action of the Father and the Son as it is of the Holy Spirit.

Accordingly, the commentator argues:

… to baptize in the name of the “Creator, Redeemer, and Sanctifier,” as opposed to the “Father, Son, and Holy Spirit” is to do one of two things:

1. Imply that there are three gods: one is the creator god, another is the redeemer god, and the other one is the sanctifying god. [Or]

2. Imply that the one person acts in three different modes, that God is acting as creator, then as redeemer, then as sanctifier.

Both of which are heretical denials of the Trinitarian creed.

President Trump has alleged for years that his opponents weaponized the legal system against him and his supporters for political gain. On Monday, his administration created an extraordinary program to pay his allies back—with taxpayer funds.

The Justice Department unveiled what it called the “Anti-Weaponization Fund,” backed by nearly $1.8 billion. It described the initiative as a resolution to a lawsuit and two administrative claims that Trump filed in his personal capacity against the government he now runs. …

[Later] the Justice Department expanded the deal to end all pending tax audits of Trump and his businesses.

In January, Trump filed a lawsuit against the Internal Revenue Service, seeking $10 billion in damages for the illegal disclosure of his tax returns by a government contractor. He also had filed administrative claims against the government seeking millions of dollars stemming from a Federal Bureau of Investigation search of his Mar-a-Lago estate in Florida and an investigation into Russian interference in the 2016 election.

Trump faced several legal hurdles in prevailing against the IRS. Instead of defending the government, Justice Department lawyers reached an agreement with the president’s personal legal team to create the fund, overseen by a commission appointed by the attorney general and subject to firing by Trump.

If this strikes you as deeply corrupt, welcome to the club. If it doesn’t, please seek help.

There’s plenty of learned commentary out there on the deal (as well as a much larger amount of unlearned commentary), so I won’t be adding to it.

But this story did remind me of an amusing anecdote from my days as a judicial law clerk.

Internal Revenue Code (IRC) § 104 provides in pertinent part that:

(a) … gross income does not include—

(2) the amount of any damages (other than punitive damages) received (whether by suit or agreement and whether as lump sums or as periodic payments) on account of personal physical injuries or physical sickness;

IRS Regulation § 1.104(c)-1(c) provides “the term damages means an amount received (other than workers’ compensation) through prosecution of a legal suit or action, or through a settlement agreement entered into in lieu of prosecution” (my emphasis).

After. the Korean War, two young people—lets call them John and Mary—married and started a family. John was a skilled carpenter who worked in the building trades. Despite union work rules, John gradually added experience as an electrician and plumber.

In the mid-1960s, John struck out on his own by starting a home repair and remodeling business. John never incorporated the business. As for other business-related paperwork, such as fictitious business name filings and the like, John pretty much ignored them too.

Despite John’s lackadaisical approach to the legal niceties of running a business, John’s business succeeded and began generating a comfortable amount of income for the family. Up to this point, Mary had been a stay-at-home mom but as the business grew she began running the office work side of the business. Mary handled bookings, billing customers, paying suppliers and other vendors, preparing their taxes, and so on.

One day John was up on a ladder at a job site. He fell off and broke his right arm. John was in a cast for seven weeks and then had to undergo several weeks of physical therapy. John ultimately was unable to work for almost three months, resulting in a considerable loss of income.

As she was preparing their federal income tax return for the year in question, Mary noticed IRC § 104 and Reg § 1.104-1. She pointed them out to John and, at her suggestion, they went to see a lawyer.

The lawyer drafted a bunch of documents for John and Mary, including:

• A written partnership agreement. The first recital to the agreement stated that it reduced to writing and memorialized an oral partnership into which John and Mary had entered when the business was started.

  • The rest of the agreement was quite standard. It provided equal rights to profits and in management. Pretty basic boilerplate.

• A fictitious business name filing for, let’s call it, John & Mary’s Repair and Remodeling Company.

• A Form 1065 and Schedule K-1 for the relevant tax year.

  • John and Mark later went to an accountant who prepared Form 1065s for the previous three tax years, which he filed along with a Form 843 request for a waiver of late fees. The accountant also prepared amended and Form 1040s and Schedule K-1s for the previous three years.

• A written employment contract between John in his capacity as the firm’s sole worker and the partnership.

• A Settlement and Waiver of Claims. In his capacity as an employee of the company, John asserted claims of negligence, providing defective equipment, lack of supervision, and so on against the company. In their capacities as partners, John and Mary acknowledged their liability. The settlement was for $4 million to be paid in installments over a period of 20 years. The annual installment payment was to equal the company’s earnings for the year in question. So, for example, if in Year 4 the partnership had pre-settlement payment earnings of $100,000, that year’s installment payment would be $100,000,

You will see, of course, that John and Mary had thereby zeroed out their taxable income for what we likely to be the remainder of John’s working life.

This went on for some years until the IRS finally noticed it. They IRS promptly audited John and Mary and imposed an enormous amount of back taxes, penalties, and interest. When John and Mary objected, the IRS began making noises about criminal tax fraud charges.

John and Mary paid the IRS what they owed, but then—and this is my favorite part—sued in federal district court to recover their payments.

The case landed in front of my judge.

John and Mary acted pro se.

The judge held an evidentiary hearing on the IRS motion for summary judgment. John and Mary were remarkably cheerful and candid. The IRS attorney was a Cylon. No sense of humor. No suggestion that she thought John and Mary were cute (they really were an adorable couple). No willingness to budge an inch. She kept mumbling something about tax fraud indictments. Basically, she struck me as somebody who would have been one of Torquemada’s best inquisitors.

After the hearing, my judge barely made it back to chambers before he cracked up. He told me to turn my bench memo into a letter opinion ruling for the IRS, but only after saying he wished there was someway he could find for John and Mary. They were just so likeable and matter of fact about the whole thing.

1. Legal Ethics Question: If you had been John and Mary’s lawyer, would you have felt comfortable doing what their actual lawyer did? If you had done the same things for a client, would your state bar discipline you?

2. Partnership Law Question: The key preliminary issue is whether John and Mary had a valid partnership. If not, the whole scheme falls apart—setting aside the many other problems with the scheme. Did they have a valid partnership?

3. Prosecutorial Discretion Question: If you had been the head of the IRS enforcement division, would you have sued John and Mary or just let it slide?

4. Who would you rather have over for dinner? John and Mary or Trump?

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In the decade that Father Ed has been my parish priest, he has grown my faith immensely. He’s an amazing homilist. When I was growing up Protestant, I was told Catholics never talk about sin and salvation. Father Ed does every week. His messages inspire and encourage, but also challenge. You’ll see that in the videos linked below.

In addition to his duties as our parish priest, Father Ed runs a wonderful program Feed My Poor that provides meals for the homeless in Los Angeles. I urge you to consider donating to it.

Father Ed’s also started a website to evangelize the unchurched and catechize searchers and new Catholics on a website called SmartGuy:

There’s a lot of useful resources provided, including:

• Father Ed’s bio.

• A guided 30-day faith journey that provides daily videos “designed to help you experience faith, not just learn about it.”

• A link to their YouTube channel.

Father Ed’s not the only person using SmartGuy to get messages out. Rather, there seems to be a ton of self-help videos by other folks. As a result, I find the site somewhat difficult to navigate, which is why I provided the links above. If you stick to Father Ed’s content you’ll be in great shape.

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His book, The Creed: The Apostolic Faith in Contemporary Theology (AMAZON LINK), offers a comprehensive study of the Apostles’ and the Nicene Creeds, which are the Christian Church’s foundational statements of belief. His perspective blends history and theology, with dollops of social, cultural, and liturgical commentary. It is doubtless the best thing I’ve ever read on the Creeds.

What is a Creed?

The Catechism of the Catholic Church states that:

From the beginning, the apostolic Church expressed and handed on her faith in brief formulae normative for all. But already very early on, the Church also wanted to gather the essential elements of her faith into organic and articulated summaries, intended especially for candidates for Baptism:

“This synthesis of faith was not made to accord with human opinions, but rather what was of the greatest importance was gathered from all the Scriptures, to present the one teaching of the faith in its entirety. and just as the mustard seed contains a great number of branches in a tiny grain, so too this summary of faith encompassed in a few words the whole knowledge of the true religion contained in the Old and the New Testaments.”

Such syntheses are called “professions of faith” since they summarize the faith that Christians profess. They are called “creeds” on account of what is usually their first word in Latin: credo (”I believe”). They are also called “symbols of faith”. (¶¶ 186-187)

Although the Church has promulgated many creeds over the centuries, the Catechism tells us that “two occupy a special place in the Church's life.” (¶ 193) These are the Apostles’ Creed and the Nicene Creed.

The Creeds

Both Creeds focus on the question Jesus posed to his disciples on the road to Caesarea Philippi: “Who do people say that I am?” In other words, they are exercises in Christology.

Or, perhaps more precisely, they are statements about not just who Jesus is but also who are the Father and the Holy Spirit.

The Apostles’ Creed

The origins of the Apostles’ Creed are lost in the mists of time. Some believe they were written by the Apostles after whom the Creed takes its name. Others believe it was written as late as the 700s. The Catechism implies the former:

The Apostles' Creed is so called because it is rightly considered to be a faithful summary of the apostles' faith. It is the ancient baptismal symbol of the Church of Rome. Its great authority arises from this fact: it is "the Creed of the Roman Church, the See of Peter the first of the apostles, to which he brought the common faith.” (¶ 194)

In any event, the Creed is frequently divided into three sections:

1. God the Father – Affirming belief in one God, the Almighty Creator.

2. Jesus Christ – Detailing the life, death, and resurrection of Jesus, affirming his dual nature, suffering under Pilate, ascension, and future return as judge.

3. The Holy Spirit and the Church – Focusing on the Holy Spirit, the church, the communion of saints, forgiveness, and eternal life.

As Marthaler recounts, however, even this is the subject of long debate. An old tradition asserted that because there were twelve Apostles, their Creed should be divided into twelve statements of belief. St. Thomas Aquinas taught that there were 14 articles. (12) The Catechism divides it into twelve articles of faith. (¶ 191)

In any event, the accepted text of the Apostles’ Creed goes as follows:

I believe in God the Father almighty, Creator of heaven and earth.

And in Jesus Christ, His only Son, our Lord, Who was conceived by the Holy Spirit,
born of the Virgin Mary, suffered under Pontius Pilate, was crucified, died, and was buried. He descended into hell; the third day He rose again from the dead; He ascended into heaven, and sits at the right hand of God the Father almighty, from thence He shall come to judge the living and the dead.

I believe in the Holy Spirit, the holy Catholic Church, the communion of saints, the forgiveness of sins, the resurrection of the body and life everlasting. Amen.

The Nicene Creed

In contrast to the Apostles’ Creed, we know exactly when the Nicene Creed came into being. In the early part of the Fourth Century, an Alexandrian-based presbyter named Arius pulled together various strains of early Christology into a coherent doctrine that rejected the Trinitarian view of God’s nature. As Marthaler observes, Arius taught that “Christ was neither truly God nor truly human.” (89) Instead, Arians believed that Jesus was created by God as the first and highest of all God’s creatures. As a creature, Jesus was subordinate to God, although the highest and first born of all God’s creatures.

A serious division arose in the 320s as Alexander, then Bishop of Alexandria, taught a more Trinitarian Christology. After Arius criticized Alexander’s views, the latter excommunicated Arius. But Arius had support from other leaders of the Eastern Church and the debate spread.

In 325, Emperor Constantine called the first ecumenical council to meet in Nicea. At that Council, Arianism was declared heretical and anathematised. According to tradition, the Council also promulgated a profession of faith accepted by 318 prelates, which became the Nicene Creed. (89-91) Accordingly, “it was the term homoouisos that became the slogan of Nicea: the Son is “on in being with the Father.”

The rejection of Arianism was confirmed at the Council of Constantinople in 381. (93) As for the Nicene Creed, the Council of Chalcedon in 451 decreed that “pre-eminence belongs to the exposition of the right and spotless creed of the 318 saintly and blessed fathers who were assembled at Nicaea when Constantine of pious memory was emperor.”

The Roman Catholic version of the Creed reads as follows:'

We believe in one God, the Father, the Almighty, maker of heaven and earth, of all that is, seen and unseen.

We believe in one Lord, Jesus Christ, the only Son of God, eternally begotten of the Father, God from God, Light from Light, true God from true God, begotten, not made, of one Being with the Father. Through him all things were made. For us men and for our salvation, he came down from heaven: by the power of the Holy Spirit he was born of the Virgin Mary, and became man. For our sake he was crucified under Pontius Pilate; he suffered died and was buried. On the third day he rose again in fulfillment of the Scriptures; he ascended into heaven and is seated at the right hand of the Father. He will come again in glory to judge the living and the dead, and his kingdom will have no end.

We believe in the Holy Spirit, the Lord, the giver of life, who proceeds from the Father and the Son. With the Father and the Son he is worshipped and glorified. He has spoken through the Prophets.

We believe in one holy catholic and apostolic Church. We acknowledge one baptism for the forgiveness of sins. We look for the resurrection of the dead, and the life of the world to come.

Amen.

I say the Roman Catholic version, because our Orthodox brothers and sisters object to the italicized language in the fourth paragraph. This is the filioque clause and the source of much controversy.

The original text of the Creed stated that the Holy Spirit proceeded from the Father. In the late sixth century, however, churches in Gaul and Spain began adding the filioque clause to the creed. (250) The issue cropped up again in the Eighth Century when Charlemagne took a personal interest in supporting its use. (251) The controversy perked along for a couple of centuries. (253-255) But it was not until the reign of Pope Benedict VIII in the early Eleventh Century that the Western church officially added the filioque clause to the approved official text of the Creed. (253) The Eastern Orthodox churches rejected the clause, which contributed significantly to the Great Schism of 1054.

Personally, I am unable to get worked up about the filioque controversy, with all due deference to those for whom it is a most serious matter. It is probably a matter of inadequate catechesis. I grew up in an Army family. Although my father was a Chaplain (of the Baptist persuasion), he was mostly in administrative roles during my formative years. I thus attended services with whatever Protestant chaplain happened to be assigned to our base. Once I went to college and then on into adulthood I continued to bounce around between Protestant denominations more or less freely. As a result, my faith long was what C.S. Lewis describes as Mere Christianity (AMAZON LINK): I was in “an entrance hall out of which doors opened into various rooms.” But a “hall is a place to wait in, a place from which to try the various doors, not a place to live in.”

When my faith journey led me to Catholicism, I learned about obsequium religiosum—i.e., religious assent, which means giving a respectful submission to authoritative teachings of the Church. I’m perfectly happy to give religious assent to the filioque clause, but I must admit that I do so mainly by not worrying too much about it.

I felt somewhat better about that when I read Bishop Robert Barron’s wonderful study of the Nicene Creed, Light from Light (AMAZON LINK), in which he wrote:

I am convinced that there is ultimately nothing to it and that it gives dogmatic theology a bad reputation for logic-chopping and hairsplitting. (119)1

The Creed in Worship

We Catholics recite the Creed in every Mass. Although the Church allows parish priests to choose between the Apostles’ and the Nicene Creed any time of year, during most of the year most priests have their parishioners use the Nicene Creed. During the Lenten and Easter seasons, however, many parishes use the Apostles’ Creed. (My parish does.)

Why recite a statement of belief every week? After all, we know what we believe don’t we?

Affirmation

Marthaler describes the creed as a “criterion of orthodoxy.” It became a regular feature of the Mass in Spain at the end of the sixth century, where its function was to help eradicate lingering Arianism among the Visigoths.2 (250)

Today, the Catechism states:

Whoever says “I believe” says “I pledge myself to what we believe.” Communion in faith needs a common language of faith, normative for all and uniting all in the same confession of faith.

I take that to mean that the weekly recitation of the Creed at Mass serves as a regular reminder of what we believe and thereby help ensure that what we believe is orthodox. Reciting it out loud and publicly is a form of giving testimony to what we believe. Reciting it in unison is a way of being in community with our parish and, indeed, every Catholic—every Christian, for that matter—who is reciting the creed anywhere in the world.

Other Reasons

In addition to being a theological statement of orthodox belief, Marthaler identifies other roles the Creeds play in our faith walk. In particular, he emphasizes that they are “doxologies, prayers of praise and thanksgiving for all God has done.” (382)

And so we will go forward in gratitude.

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The phrase was brought to mind recently by news about the growing threat to the American Bar Association’s (ABA) lock on law school accreditation.

Former Northwestern law school dean Daniel Rodriguez recently posted to his Substack that:

Another shoe has dropped in the attack on the citadel of ABA law school accreditation. At the beginning of this month, Alabama announced reforms that bring it a more or less common place with Texas and Florida. Other states are actively considering similar reforms. At the same time, the ABA Council continues its internal evaluation (may we say reform?) efforts through the work of a special committee. Change in one form or another seems just around the corner; indeed, in the states just mentioned, it is already here.

Albeint with some caveats, Daniel blames the ABA’s troubles in part on the body within the ABA that oversees law school accreditation; i.e., The Council of the ABA Section of Legal Education and Admissions to the Bar:

Conventional wisdom among those (myself included) who have been strongly critical of the ABA’s accreditation performance is that many of the problems originate from within the ABA Council and management. … [T]he ABA accreditation team has been neglectful of external pressures to change their ways, and in some cases has double-downed on standards and approaches that are anachronistic and unimaginative ….

But he also blames “the legal academy itself,” by which he means “law school leaders and also invested, attentive law professors.” He criticizes the academy’s “deep conservativism,1 excessive caution, and lassitude,” which has caused the academy to fail “to construct models of and practices in legal education that are adaptive to contemporary conditions and circumstances.”

He points to several areas of failure:

• Costs: “Law school tuition has ballooned over the past many decades.”

• Learning infrastructure and the exceptionalist illusion: The gist of his point here is that the ABA has worked hand-in-hand with law school administrators to insulate law schools from “a university environment that strikes for general success and economies of scale.”

• Transparency: “Law school leaders typically disclose only what they are forced to disclose.” Students and prospective students thus lack information that would make them better consumers.

All of which strikes me as quite correct. All of them speak to longstanding problems with the law school accreditation process and served as well springs of the present moment.

Yet, while they are the root causes, the immediate crisis lies in the politicization of the ABA and the legal academy.

Daniel alludes to the problem. He refers to the ABA accreditation bureaucracy as having “become politically toxic, as is the story of what will someday come to be called the Trump years.” He also refers to law schools being “especially vulnerable to external critics, especially from the Right currently, searching for reasons to press and sometimes even bully law schools to reconfigure their agendas.”

But why has the ABA and the legal academy become politically toxic?

Obviously, we live in an era of serious political polarization. The ABA and the legal academy have chosen a side. It is the side of progressive politics with all of its baggage.

A 2017 survey concluded that almost all law school faculties—especially at the top—lean sharply left:

There is no reason to think the pattern has shifted in the last decade.

As for the ABA, there has been a steady leftward shift in the ABA’s political positions. As Jonathan Turley observes, starting with its 1992 decision to endorse abortion rights the ABA repeatedly adopted organizational principles and positions that leaned left. Each time it did so, more conservative and libertarian lawyers left the ABA. As each conservative lawyer left, of course, it became easier for progressive activists to ram through the next left-wing position. Today, ABA official positions include:

• Opposition to the death penalty

• Abolition of cash bail

• Repeal of mandatory minimums

• Opposition to religious freedom exemptions from discrimination laws

• Gun control

• ESG

• DEI

Of all of these, however, it is the ABA’s position on DEI issues that has become the focus of the campaign to restrict its role in accreditation.

The ABA accreditation standards include # 206 on “Diversity and Inclusion”:

(a) Consistent with sound legal education policy and the Standards, a law school shall demonstrate by concrete action a commitment to diversity and inclusion by providing full opportunities for the study of law and entry into the profession by members of underrepresented groups, particularly racial and ethnic minorities, and a commitment to having a student body that is diverse with respect to gender, race, and ethnicity.

(b) Consistent with sound educational policy and the Standards, a law school shall demonstrate by concrete action a commitment to diversity and inclusion by having a faculty and staff that are diverse with respect to gender, race, and ethnicity.

To which the Council added an “interpretation” clearly aimed at California state law schools subject to Proposition 209:

The requirement of a constitutional provision or statute that purports to prohibit consideration of gender, race, ethnicity, or national origin in admissions or employment decisions is not a justification for a school’s non-compliance with Standard 206. A law school that is subject to such constitutional or statutory provisions would have to demonstrate the commitment required by Standard 206 by means other than those prohibited by the applicable constitutional or statutory provisions.

In February, the Council suspended that provision until August 31, 2026. On May 8, the Council’s committee that drafts its accreditation standard announced a recommendation that the Council repeal Standard 206.

In addition, Reuters reports that:

The ABA council on Friday will also consider eliminating a rule adopted in ​2022 that requires law schools ​to educate students about bias, ⁠racism, and cross-cultural competency, as well as a proposal to drastically pare back, opens new tab its non-discrimination rule for students and faculty.

So what do we make of all this?

The ABA is basically a left-wing bully. It espouses progressive politics and pushes them on to a target—the legal academy—all too willing to cave in. But, like most bullies, it’s a coward. When it gets pushback, it caves.

The ABA could have stood its ground. It could have said something along the lines of “We adopted these DEI policies. We stand by them. Come and have a go if you think you're hard enough.”

But it didn’t.

It seems the ABA is desperate to maintain the appearance of relevance. It’s membership has shrunk to about 17% of the legal profession. It’s only claim to speak for the profession is its role as the gatekeeper to judicial nominations (now thankfully squashed) and law school accreditation.

Take away its role as law school accreditor and it will be exposed as what it is: Just one of the many left-wing interest groups making up the progressive alliance.

The ram has touched the wall. The Trump administration should have no mercy on the ABA.

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To be clear, I am only talking about public unions here. I actually support private sector unions, albeit for reasons I’ll leave for a future post.

This is that post.

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The Case Against Public Unions

Today’s WSJ editorial opines on public union reforms in multiple states…

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20 days ago · 2 likes · Stephen Bainbridge

First, I come from a long line of union members. Second, Catholic Social Teaching emphasizes that workers have a natural right both to form unions and to strike. As I read the relevant encyclicals and pastoral letters, this teaching is not a matter of prudential judgment, but rather an authoritative teaching to which faithful Catholics must give religious assent. Finally, and most important for present purposes, unions potentially are an important way of minimizing transaction costs.

Labor contracts are subject to moral hazard problems on both sides. Workers shirk (by which I mean providing less effort than that to which they have agreed, whether intentionally or not). Owners behave opportunistically; i.e., providing fewer rewards than promised.

Preventing such opportunistic behavior on both sides is one of the principal functions, in economic terms, of any labor relations system. Hence, at least among lawyer-economists in the transaction costs branch of law and economics, the once widely-held view that unions exist to capture monopoly rents for workers in the form of higher wages and superior benefits has given way to an understanding that unions play an important role in reducing transactions costs by constraining strategic behavior by management.

Because workers value job security, firms can obtain lower labor costs if they can credibly promise to refrain from opportunistic conduct. One way of bonding that promise is to sign a collective bargaining agreement with a union. Collective bargaining transforms the decision-making process from unconstrained management prerogative to limited managerial discretion bounded by claims of right sounding under the agreement. The seniority system, with its ports of entry, internal promotion ladders, and protection from lay-offs, offers job security. Union monitoring helps ensure compliance by the firm with its contractual obligations. Grievance procedures allow for dispute resolution.

Collective bargaining thus becomes a burden on the enterprise, in that it raises the transaction costs associated with decision-making processes and limits management discretion. Yet, because that burden serves to make the firm’s promises to its employees more credible, it is one rational managers would accept. (Putting the theory into practice, of course, has been a problem. Unions have been plagued by internal agency costs and been a source of social costs.)

A long time ago, I explained all this to a colleague in the context of explaining why I have a general rule against crossing picket lines (by private sector unionized workers but not public sector unionized workers for the reasons discussed in the preceding post). He objected (despite being a good LBJ-style Democrat) that, whatever merit my arguments might have, I had not made a case for refusing to cross all picket lines.

He had a point. Neither efficiency nor morality compels the conclusion that every strike is worth respecting.

My rule of thumb against crossing picket lines, however, is economically justified as a transaction cost minimizing decision-making heuristic. Bounded rationality is a neo-institutional economics concept capturing the idea that we all have inherently limited memories, computational skills, and other mental tools. These limitations become a significant constraint on decision making under conditions of complexity and uncertainty. Under those conditions, we can reduce decision-making costs by adopting a heuristic—i.e., a rule of thumb—for making judgments. Yes, any rule of the thumb inevitably produces errors, but the benefit in time and effort saved may outweigh error costs. In this case, a rule of thumb of not crossing any picket line saves me the time and effort necessary to figure out whether a given strike is morally and economically justified.

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The single biggest problem in state governance is the political dominance of public unions. These include the SEIU, Afscme and the teachers unions. Several states are now pressing reforms that curb their coercive hold over their members.

Idaho Gov. Brad Little recently signed a bill that will end taxpayer support for teachers unions, notably the Idaho Education Association. …

Arizona is working on similar guardrails for public unions with a proposed constitutional amendment that would prevent school districts from collecting union dues through a payroll deduction. …

Bills pending in Oklahoma and Florida also get shoutouts. The editors conclude:

The fiscal health of states can be measured in large part by the extent public unions control state capitals. These state reforms can prevent more states from going the way of Albany, Trenton, Springfield, Sacramento or Olympia.

To my mind, however, these reforms seem like half measures. Public unions and good governance are simply incompatible.

A Bit of History

In fact, as Daniel DiSalvo wrote, in a detailed article well worth reading, leading labor and political figures long recognized that public sector unions were a bad idea:

Prior to the 1950s, as labor lawyer Ida Klaus remarked in 1965, "the subject of labor relations in public employment could not have meant less to more people, both in and out of government." To the extent that people thought about it, most politicians, labor leaders, economists, and judges opposed collective bargaining in the public sector. Even President Franklin Roosevelt, a friend of private-sector unionism, drew a line when it came to government workers: "Meticulous attention," the president insisted in 1937, "should be paid to the special relations and obligations of public servants to the public itself and to the Government....The process of collective bargaining, as usually understood, cannot be transplanted into the public service." The reason? F.D.R. believed that "[a] strike of public employees manifests nothing less than an intent on their part to obstruct the operations of government until their demands are satisfied. Such action looking toward the paralysis of government by those who have sworn to support it is unthinkable and intolerable." Roosevelt was hardly alone in holding these views, even among the champions of organized labor. Indeed, the first president of the AFL-CIO, George Meany, believed it was "impossible to bargain collectively with the government."

DiSalvo went on to quote a 1943 New York state judicial opinion, which held that:

To tolerate or recognize any combination of civil service employees of the government as a labor organization or union is not only incompatible with the spirit of democracy, but inconsistent with every principle upon which our government is founded. Nothing is more dangerous to public welfare than to admit that hired servants of the State can dictate to the government the hours, the wages and conditions under which they will carry on essential services vital to the welfare, safety, and security of the citizen. To admit as true that government employees have power to halt or check the functions of government unless their demands are satisfied, is to transfer to them all legislative, executive and judicial power. Nothing would be more ridiculous.

Or, as DiSalvo opined:

The very nature of many public services — such as policing the streets and putting out fires — gives government a monopoly or near monopoly; striking public employees could therefore hold the public hostage. As long-time New York Times labor reporter A. H. Raskin wrote in 1968: "The community cannot tolerate the notion that it is defenseless at the hands of organized workers to whom it has entrusted responsibility for essential services."

A Bit of Economics

A core problem with public sector unionism is that it creates a uniquely powerful interest group. In theory, bureaucrats are supposed to work for and be accountable to the elected representatives of the people. But suppose those bureaucrats organize into large, well-funded, powerful unions that can tip election results. With very few and very unique exceptions, no workplace in which the employees elect the supervisors functions well for long. Yet, research by Terry Moe (22 J.L. Econ. & Org. 1) into the electoral power of teachers’ unions finds just such an outcome:

The first study ... provides evidence that teachers, acting through their unions, are quite successful at getting their favored candidates elected to local school boards. When a candidate is supported by the unions, her probability of winning increases dramatically, so much so that the impact of union support appears to be roughly the same as the impact of incumbency. In terms of total impact, union influence may be even greater than this suggests, because union victories literally produce incumbents and the power of incumbency then works for union candidates to boost their probability of victory still further in future elections.

The second study ... shows that public bureaucrats’ turnout advantage over other citizens is much greater than the existing literature would lead us to expect. It also offers persuasive new grounds for believing that their high turnout is indeed motivated by occupational self-interest and more generally, that they are actively and purposely engaged in an electoral effort to control their own superiors.

Moe concludes:

The prevailing theories treat bureaucrats as mere subordinates, controlled from above by political authorities. But the control relationship can run both ways, and not just because bureaucrats have expertise and other sources of private information. In a democratic system the authorities are elected, and this gives bureaucrats an opportunity to exercise electoral power in determining who will occupy positions of authority and what choices they will make in office. It would be odd indeed if public bureaucrats and their unions did not invest in this kind of reverse control and there is ample evidence that they do.

In effect, public sector unionism thus means that representatives of the union will often be on both sides of the collective bargaining table. On the one side, the de jure union leaders. On the other side, the bought and paid for politicians. No wonder public sector union wages and benefits are breaking the back of state budgets. They are bargaining with themselves rather than with an arms’-length opponent.

Even if the public’s representatives at the collective bargaining table are not de facto union representatives, the nature of public sector collective bargaining inherently leads to inefficiencies. As far back as 1971, in their book The Unions and the Cities, Harry Wellington and Ralph Winter argued that “there are sound reasons for concluding that government is not just another industry” (Book Review, 13 Wm. & Mary L. Rev. 960):

Foremost of these reasons is the unreliability of transplanting the private sector labor legislation’s operating assumption that the employer’s superior bargaining power should be equalized. That power in a given city may already be equal or tipped in favor of public employee unions due to the very nature of the public employer who, unlike the private employer, is not subject to market restraints but is subject to political restraints. Government decisions are properly political decisions and economic considerations, although paramount to the private employer, are but one criterion among many for the public employer. Market restraints in the private sector are such that increased benefits will cause higher prices for the employer’s product which in turn, in a system of tradeoffs, causes possible unemployment of some employees. No such market restraint exists in the public sector except in theory since discharging teachers, sanitation workers, or police- men as a result of granting higher benefits raises very real political pressures from within the affected government department and from an inconvenienced public. Government employers too frequently yield to constituents by a grant of increased benefits to employees and then either bury the increases in the “bowels of an incomprehensible municipal budget,” seek new funds, or reduce other services by reallocating the city’s treasury. Thus, normal market restraints are often supplanted by political restraints regardless of economic or social impact. ...

Add to this political power of public employee unions the private sector strike weapon and they may have, argue the authors, a disproportionate quantum of power sufficient to distort the normal political process. Their power may be so effective a means of redistributing income that they will have “an institutionalized means of obtaining and maintaining a subsidy for union members.”

A Bit of Politics

The power wielded by public sector unions distorts the political process. Consider, for example, the looming economic disaster coming in most states and localities as bloated public sector union benefits—especially pension benefits—are essentially bankrupting the public sector.

Public employee unions are one of the most—if not the most—powerful political actors in state politics and have used that power to protect and expand the pension benefits of their members, as one would expect. As Healey, Hess and Nicholson have observed:

Public sector unions are often highly involved in raising funds and donating to the campaigns of political candidates, often with the goal of preserving the pension status quo ... As important as it may be to take on the challenge [of pension reform] many lawmakers are still politically incentivized to maintain the status quo for as long as possible.

The Providence Journal thus observed that:

At the bottom of it all is a political culture that rewarded politicians who made unsustainable promises, working in mutually beneficial tandem with public employee union leaders who extracted remarkably generous benefits without worrying about the long-term costs to the citizenry, especially when the inevitable recession arrived.

Why do union leaders support pension policies that threaten to undermine the ability of a state to deliver promised benefits to their members? Dr. Thomas H. Little from the State Legislative Leaders Foundation noted that it has a lot to do with internal union politics: “Union representatives tend not to look long-term but rather focus on the short-term interests of the current and retired members who elected them and on whom they depend for re-election. These folks tend to be adamantly opposed to cuts in their benefits.”

Conclusion

Public sector unionism is thus inherently at odds with the common good, as it impedes the ability of the State to provide basic services to citizens at large.

The late Cardinal Edward Egan was thus correct when he argued at a 2011 conference on work (50 J. Cath. Legal Stud. 149) that:

There is a basic difference between the public employee and the private employee. You cannot fairly say, “Here is an argument for the private employee,” and apply it without distinction to the public employee. That tactic may get you through an opinion piece in a newspaper, but it will not work in a serious discussion where the participants are free to demand precise definitions and, above all, clear distinctions.

I’ve previously argued that we should not use Kaldor-Hicks efficiency to evaluate the transition to an AI economy. Instead, we should strive for Pareto efficiency.

In brief, as I argued, there will be winners and losers from the transition to an AI economy. Under Pareto efficiency, the winners should be taxed to compensate the losers (Kaldor-Hicks does not require compensation).

At least part of the problem with Kaldor-Hicks efficiency arises from the fact that it only requires a hypothetical redistribution. If the winners could compensate the losers, there is a new social gain and the change in question is efficient (at least in terms of social wealth maximization).

The solution is thus obvious: Force the winners to compensate the losers. Tax the winners a sufficient amount to compensate the losers and redistribute the proceeds to those who lose.

StephenBainbridge.com

Taxing AI

I’ve been a science fiction fan almost since I started reading and watching TV and movies. So I grew up with sentient computer antagonists like Colossus, Hal 9000, Skynet, and AM…

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3 months ago · Stephen Bainbridge

I became even more persuaded of the need for such a tax when I read a new paper, The AI Layoff Trap, by computer science professor Brett Hemenway Falk and information systems professor Gerry Tsoukalas.

Falk and Tsoukalas argue that AI-driven automation will create a competitive trap. Each private sector company benefits from replacing workers with AI, but their privately optimal decision is socially harmful because the collective impact of all collectively those layoffs is to reduce consumers’ income. Most consumers, after all, are also workers. Unemployed or underemployed workers will have less to spend. Accordingly, consumer demand for all firms’ products will fall.

In their model, Falk and Tsoukalas make the simplifying assumption that each automated task displaces one worker. This simplifies the analysis but assumes a relatively direct substitution channel, rather than AI primarily augmenting workers, creating complementary tasks, or increasing labor demand elsewhere. If AI does the latter, the problem becomes much less concerning.

The model likewise assumes that layoffs are driven by AI replacing workers. If it is true, as some reports suggest, that layoffs taking place now are not the result of AI but instead firms are blaming/crediting AI for layoffs driven by other factors, the problem again becomes less concerning.

But let us assume that they are correct, at least in large part.

If so, AI will function as a demand externality. A negative externality occurs when a firm is able to offload a portion of its costs of producing goods and services onto society. Pollution is a classic example. Pollution harms society, but the producer does not bear the costs generated by its pollution and thus lacks an economic incentive to minimize pollution.

A demand externality occurs when an individual firm’s production or pricing decisions directly affect the revenue and profitability of other firms, usually due to aggregate demand effects. This often creates a positive feedback loop in which lower consumer demand reduces aggregate producer output, leading to clustered defaults or involuntary unemployment, creating self-fulfilling prophecies.

In this case, an automating firm captures its own cost savings but bears only a fraction of the demand destruction caused by displaced workers’ lost spending. As a result, rational firms may over-automate even when everyone can foresee that the outcome is collectively harmful. A recursive loop results: automation reduces labor costs, but displaced workers lose purchasing power, which feeds back into firms’ revenues.

Falk and Tsoukalas show that this distortion grows with the number of firms. Accordingly, in game theory terms, AI creates a Prisoner’s Dilemma. The outcome of which is that all firms automate even though all would be better off under collective restraint. In other words, even though companies may recognize this danger, they will be unable to avoid it because each individual firm has an incentive to automate before its rivals do.

Falk and Tsoukalas show that the resulting loss is not merely redistribution from workers to owners. Instead, over-automation can harm both workers and firm owners. As workers lose income, firms lose demand and therefore profits. This makes the problem a deadweight loss rather than simply a fairness or inequality issue.

The paper is highly mathematical. So much so that much of the paper is way above my pay grade. But the narrative argument makes a lot of intuitive sense. After all, it is a more sophisticated version of the argument I put forward in my earlier post.

So let us assume the authors are correct. What to do?

Falk and Tsoukalas contend that several popular responses—universal basic income, capital income taxation, worker equity participation, upskilling, and Coasian bargaining—may cushion losses but do not fully correct the externality. Accordingly, they propose a Pigouvian automation tax, set equal to the uninternalized reduction in demand per automated task.

A Pigouvian tax, named after 1920 British economist Arthur C. Pigou, is a tax on a market transaction that creates a negative externality, or an additional cost, borne by individuals not directly involved in the transaction. Examples include tobacco taxes, sugar taxes, and carbon taxes.

For instance, smoking in a public restaurant creates a negative externality because secondhand smoke can affect nonsmokers and worsen their long-term health outcomes. Drivers of gas-powered vehicles pay the gas tax to account for the externalities of pollution and wear and tear to the roads. Levying an excise tax in these situations can serve to recoup some of the cost of these externalities and “internalize” the cost of the externality to the purchase of the product. Sin taxes in general are also used to discourage consumption and “price-in” the externalities of products such as gambling, alcohol, and tobacco.

The Pigouvian concept of internalizing externalities in order to correct inefficient market outcomes suggests that the size of the excise tax should be equal to the cost of the negative externality. (LINK)

Unfortunately, implementing that solution poses multiple difficulties. Falk and Tsoukalas acknowledge one:

. . . the model is a closed-sector game, and a unilateral automation tax could push adoption offshore, strengthening the case for multilateral coordination or border-adjustment mechanisms analogous to those used in carbon policy.

In addition, however, the standard objections to Pigouvian taxes seem equally applicable here. How do you measure the size of the externality? How do you determine the effectiveness of the tax in reducing the demand externality? Can a single tax system take into account all the individual variations between locations, industries, firms, and individuals?

The paper assumes regulators can observe or approximate automation rates and impose a per-task tax equal to the uninternalized demand loss. This is conceptually clean but would be administratively demanding in reality, especially when AI augments some workers, replaces others, and changes task composition gradually.

Do those objections mean we should simply ignore the problem?

I think not. Recursive loops can lead to death spirals. Public policy likely cannot wait and see.

In Life After Cars (the title feels sweetly hubristic; one might as well write a manifesto against air, or the seasons) Sarah Goodyear, Doug Gordon, and Aaron Naparstek call this state of affairs “motornormativity”: the uninterrogated assumption that “car ownership is a magic portal to ease, comfort, and personal freedom.” Even though cars have done “far more collective damage to the world, in terms of death, illness, and environmental destruction, than nearly any other invention in human history,” they write, we seem increasingly unwilling to question their role within society.

In the polite academic circles in which I travel, defending anything with “normativity” in the name is now cause for shaming and cancelling. Because speech hurts. So, naturally, I mostly self-censor.

But when it comes to the car, I cannot be silent.

It came as no surprise to learn that Day is a Londoner, while the authors are all Brooklynites. Cities that hate the car. Cities that are designed to make driving unpleasant, parking impossible, and push everybody into the overcrowded petri dishes they call subways or onto the accidents waiting to happen called bicycles.

But out here in the rest of America, cars are necessary. They are a tool. There’s a reason why more than 6% of all country songs are about trucks. Think of the Ford F-150. For over 40 years it has been the best-selling motor vehicle in the USA. And, for most of that time, it’s because it was the essential working man’s tool.1 It’s a reliable, tough, and highly capable instrument for manual labor. Sure, a lot of wannabes have bought high end editions, but when all the white collar jobs are taken by AI, we’ll all be working jobs where a Ford F-150—or its lesser rivals—will be essential.

But cars are more than just a tool. They are an instrument of freedom.

Bruce Springsteen sang about finding redemption under “a dirty hood,” not while riding Day’s “large cargo bike.” Springsteen’s definitive about finding escape and purpose is Racing in the Street, which is about modifying and racing cars. Tracy Chapman remembers “when we were driving, driving in your car,” not when they went riding on a tandem bike. The Beach Boys sang about the girl who would “have fun, fun, fun. 'Til her daddy takes the T-Bird away.” Not the girl who would have fun until her dad took away her bicycle. Chuck Berry sang about “Riding along in my automobile. My baby beside me at the wheel.” Not about riding along with his girl behind him on a tandem bike.

Songs about freedom and liberation always seem to involve cars.

But let’s switch gears to literature. Day hails his favorite writers—C. S. Lewis, Vladimir Nabokov, Ursula Le Guin2—as being non-drivers.

Fine. I like one of the three myself, although not because he didn’t drive.

But I can throw some names into the other side of the balance: Jack Kerouac’s On The Road (Amazon Link), Sinclair Lewis’ Free Air (AMAZON LINK), John Steinbeck’s Travels with Charley (AMAZON LINK).

In closing, Day quotes something Margaret Thatcher supposedly said: “Any man who finds himself riding a bus after the age of twenty-six, … can count himself a failure in life.” I like it.

But I much prefer the wit and wisdom of Jeremy Clarkson:

There’s a lot of misunderstanding out there about Citizens United, so it seemed like an appropriate topic. FYI: I’ll also be blogging about it over at BainbridgeOnCorporations.com.

What Happened

Citizens United was (and still is) a non-profit organization funded mostly by private donations, although it did (and, presumably, still does) receive some funding from for-profit companies. CU created Hillary: The Movie, a ninety minute documentary criticizing then-Senator Hillary Clinton for use during her run for President in 2008.
CU sought to distribute the film through cable video-on-demand within 30 days of the 2008 primaries. CU also wanted to create three commercials to advertise the movie.

Federal campaign finance law—specifically 2 U.S.C. § 441(b), as amended by § 203 of the Bipartisan Campaign Finance Reform Act of 2002 (BCRA)—prohibited corporations and unions from spending money from their general treasury2 to fund an '“independent expenditure” or “electioneering communication” that expressed support for or opposition to a federal candidates election. (Although CU tried to argue to the contrary, the SCOTUS majority concluded that the documentary and the tv ads were electioneering communications.)

Fearful of being fined or prosecuted under federal law, CU filed suit in the United States District Court for the District of Columbia seeking declaratory and injunctive relief from § 441(b) relating to their film, as well as the disclaimer and disclosure requirements contained in §§ 201 and 311 of the BRCA.3

The case was assigned to a three judge panel, which dismissed the request for declaratory and injunctive relief and granted summary judgment in favor of the FEC based upon its interpretation of McConnell v. FEC4 and Austin v. Michigan Chamber of Commerce.5

The SCOTUS Majority Opinion

Writing for a 5-4 majority, Justice Kennedy held that § 441b's prohibition on corporate independent expenditures violated the First Amendment. After determining that the constitutional issues could not be avoided, Kennedy expressly overruled Austin and the portion of McConnell had upheld BCRA § 203's facial validity.

In brief, Kennedy’s opinion held that:

1. The government may not suppress independent political speech based solely on the speaker’s corporate identity.

2. Corporations and unions may make independent political expenditures from general treasury funds.

3. Direct contributions to candidates remain subject to regulation.

4. Disclaimer and disclosure requirements are constitutionally permissible

Chief Justice Roberts and Justices Scalia and Alito joined Justice Kennedy’s opinion in its entirety. Justice Thomas issued a separate opinion joining the portions of Kennedy’s opinion setting out the first three holdings, but dissented from the portion—Part IV of the opinion—setting out the last holding. Justice Stevens filed an opinion concurring in part and dissenting in part, in which Justices Ginsburg, Breyer, and Sotomayor joined. Stevens et al. joined Part IV, giving it a majority, but dissented from the portions laying out the first three holdings. Chief Justice Roberts filed a concurring opinion in which Alito joined. Scalia filed a concurring opinion in which Alito joined and Thomas joined in part. In short, it was a mess. But unlike some SCOTUS messes, there was a majority for each portion of Kennedy’s opinion.

Kennedy began by observing that Hillary: The Movie criticized a candidate for President, which is precisely the sort of political speech at the core of the First Amendment. Drawing on First National Bank of Boston v. Bellotti,6 Kennedy reaffirmed that the First Amendment’s protection extends to corporations and that political speech does not lose constitutional protection simply because its source is a corporation. The statute was, in his framing, a speaker-based restriction under which some speakers—such as individuals and media corporations—could speak freely, while ordinary corporations and unions could not use their general treasury funds for equivalent political advocacy. Kennedy held that such identity-based drawing lines are constitutionally suspect.

There were basically three lines of defense advanced for drawing such lines:

1. The anti-distortion rationale accepted in Austin.

2. The anti-corruption rationale accepted in Buckley v. Valeo.7

3. The shareholder protection rationale.

Austin

Austin had upheld corporate expenditure limits on the theory that the wealth accumulated by incorporated entities through state-conferred privileges—such as limited liability and perpetual life—could distort the political process. But Kennedy rejected that rationale outright, holding that the First Amendment does not permit the government to seek to equalize speakers' influence or to suppress speech because some speakers are wealthy or powerful.

Roberts’ concurrence was mainly concerned with defending in more detail the decision to overturn Austin. His opinion was a response to Justice Stevens’ dissent, which strongly objected to overruling Austin and (part of) McConnell. Stevens argued that stare decisis, the relatively recent nature of those cases, the fact that Congress had relied on them, and that campaign finance regulation was an area where legislative judgment deserved respect all argued against overturning those decisions.

Buckley

Buckley held that direct corporate or union contributions to candidates were justified by the need to prevent corruption or the appearance of corruption. But Kennedy narrowly defined the sort of corruption that justified campaign finance laws as quid pro quo bribery. In his view, independent expenditures, by definition, are not coordinated with candidates and therefore do not create the same danger.

Different Framing

Setting aside technical legal disputes such as stare decisis, the disagreement between Kennedy and Stevens comes downs to framing. Kennedy framed the case as one involving government regulation of speech about elections, which invoked the most rigorous First Amendment scrutiny. Stevens framed the case as an issue of democratic integrity being brought into question through corporate wealth.

Once you recognize that framing, the continuing disagreement over Citizens United starts to make more sense. Are you more worried about regulation of speech or about the potential for corruption and distortion of political discourse by wealth inequalities?

Speaking for Myself

I come down squarely on the side that worries about government regulation of core political speech and thinks that the First Amendment should be applied with strict scrutiny to such laws. I do so mainly because of a point Chief Justice Roberts made in his concurrence:

The Government urges us in this case to uphold a direct prohibition on political speech. It asks us to embrace a theory of the First Amendment that would allow censorship not only of television and radio broadcasts, but of pamphlets, posters, the Internet, and virtually any other medium that corporations and unions might find useful in expressing their views on matters of public concern. Its theory, if accepted, would empower the Government to prohibit newspapers from running editorials or opinion pieces supporting or opposing candidates for office, so long as the newspapers were owned by corporations—as the major ones are. First Amendment rights could be confined to individuals, subverting the vibrant public discourse that is at the foundation of our democracy.

Hence, as I sarcastically tweeted the other day:

StephenBainbridge.com

Master the World: Wine Atlas Collective

Helen and I are longtime members of Ridge Vineyards wine club. Ridge recently notified us that they are participating in the Wine Atlas Collective…

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a month ago · 1 like · Stephen Bainbridge

This week we tried again. We went back to Koi (or, more precisely, we used Uber Eats to order again from Koi) for a mix of white and red wine friendly items. Sadly, while the food was great (again), the wines this time were more in the “meh” to “ugh” range.

Red Tail Ridge Dry Riesling (Finger Lakes, NY) 2024

Pale yellow. Almost no nose. On the palate, it was light- to medium-bodied. Moderate acidity. Vague suggestions of pear, peach, and herbs on the palate. Although labelled “dry,” I suspect there is a tad of residual sugar in it. There was nothing wrong with it, but it wasn’t a wine I would buy again.

Blenheim Vineyards Painted White (Charlottesville, VA) 2024

A white blend of 47% Chardonnay, 23% Viognier, 21% Roussanne, and 9% Pinot Noir. I really wanted to like this wine. I really did. I lived in Charlottesville for five years when I was in graduate and law school. I loved it. I’ve always wanted to go back. Over the years, I’ve had some very good wines from the Charlottesville area. Sadly, this was not one of them.

Yellow-gold. Very little nose. My first reaction was that it tasted, for lack of a better word, “flabby.” Rather than being vibrant and refreshing, it was dull, flat, and heavy. Unbalanced. Unlike some mixes of these grape, where the different varietals come together to produce synergies, this blend seemed to muddle the various varieties. It was a nondescript, generic, white wine

William Chris Vineyards La Pradera Vineyard Mourvèdre (Texas High Plains) 2024

This was the most interesting and successful wine of the tasting, although that’s not saying all that much. It was okay, which by this point was a welcome change.

Pale rim with a medium red-purple coloration. Acidic and tannic. A little odd, but we tasted dark fruit, smoke, earth, and leather. Some cocoa and pepper on the finish.

Conclusion

Maybe I’m too old to be adventurous and experimental in my wine tasting. But this tasting was yet more evidence that my decision some years ago to pretty much limit my personal wine atlas to California, France, and Italy was correct.

My previous post discussed a recent op-ed by Todd Zywicki on the impact of litigation on company willingness to go public:

That post prompted me to go back into the archives to reminisce about what I’ve said about trial lawyers in the past. These posts appear as they did on my old blog.

May 23, 2020: Are trial lawyers the reason we can't have anything nice?

My friend Jim Copland has a great op-ed in today’s WSJ on how the trial lawyers killed off Johnson & Johnson baby powder using a combination of junk science and litigation hotspots with gullible anti-business jurors.

In other developed countries, regulators would apply the best science and essentially end the matter. But not in the U.S., where claims that a product causes an injury are typically matters of state law. An FDA determination that a product is safe doesn’t usually preclude litigation alleging otherwise. ...

Asbestos lawyers have Johnson & Johnson as their latest deep-pocketed corporate defendant. And a necessary one too, as other lawsuits bankrupted all the actual asbestos manufacturers long ago.

October 18, 2014: Is being a trial lawyer the measure of a law professor's competence?

You will perhaps recall Judge Richard Kopf. If not, start here. The Judge recently got crosswise (again) with friend of the blog Rick Hasen who is a good guy and a major scholarly figure despite starting out with two strikes (he’s a liberal and he teaches at Irvine).1 That spat presumably motivated Judge Kopf to post the following request:

I am interested in collecting a list of law professors who litigate in the trial courts of this country while also teaching law. I don’t care whether such litigation is civil or criminal in nature. I don’t care whether the litigation takes place in state or federal court. I understand and appreciate that busy law professors only have so much time. As a result, I don’t expect the list to contain law professors who are constantly in our trial courtrooms. But, I do want to know about law professors who try enough cases on a fairly regular basis that one might conclude that they are presently competent to sit at the first chair representing a client before a jury or a trial judge. ...

Please, please, please, no snark. I honestly have no interest in picking a fight. On the contrary, I am sincerely hoping to recognize and praise law professors who litigate in the many trial courtrooms of our nation while also regularly teaching law.

Without intending to be snarky in any way, I wonder why Judge Kopf is singling out trial lawyer law professors. Are law professors who regularly take the lead in writing briefs and conducting oral arguments in appellate cases not equally worthy of recognition and praise?

More important, are trial lawyers (law professors or not) worthy of recognition and praise? I’m quite serious about that question. Consider the Manhattan Institute’s path breaking report Trial Lawyers Inc., which exposed the considerable damage being done to our economy by excessive and abusive litigation:

Trial Lawyers, Inc., while not an annual report per se, presents a snapshot of the lawsuit industry as it exists today. The picture is not pretty. Total tort costs today exceed $200 billion annually, or more than 2% of America’s gross domestic product‚Äîa significantly higher percentage than in any other developed nation. Moreover, even as the economy has stagnated and the stock market has plunged, the lawsuit industry’s revenues have continued to skyrocket: in 2001, the last year for which data are available, U.S. tort costs grew by 14.3%. Over the last 30 years, tort costs grew at a compound annual rate of 9.1%; by comparison, the U.S. population grew 1.1% annually, the consumer price index grew 5.0% annually, and the gross domestic product grew 7.6% annually during the same period.

In my home field of corporate law and securities regulation, runaway shareholder litigation has become an enormous impediment to capital formation, as I argued in my article, Corporate Governance and U.S. Capital Market Competitiveness.

Whether or not you agree with me that runaway litigation has reached crisis proportions and therefore calls into serious question any effort to praise trial lawyers, moreover, surely you can agree with me that law schools already devote too much attention to litigation. As I argued in my essay, Reflections on Twenty Years of Law Teaching:

[Law school as taught by] the Socratic method doesn’t really teach you to “think like a lawyer.” At best, it teaches you to think like a litigator.

Consider a typical law student who accepts a [transactional] job at a large firm. She has spent perhaps ninety-five percent of her time in law school reading and discussing cases and law review articles. Once in practice, she will go days or weeks at a time without picking up a case or a law review article. Instead, her days will be filled with drafting, reviewing, and marking up transactional documents, negotiating language with opposing counsel, participating in conference calls, and composing memos, emails, and letters to colleagues and clients.

“Thinking like a lawyer,” as Kingsfield and his ilk would have our graduate do is not very conducive to success in that environment.

In his book, The Terrible Truth About Lawyers, Mark McCormack, founder of the International Management Group, a major sports and entertainment agency, wrote that “it’s the lawyers who: (1) gum up the works; (2) get people mad at each other; (3) make business procedures more expensive than they need to be; and now and then deep-six what had seemed like a perfectly workable arrangement.” McCormack further observed that, “when lawyers try to horn in on the business aspects of a deal, the practical result is usually confusion and wasted time.” He concluded: “the best way to deal with lawyers is not to deal with them at all.”

All of which is why I emphasize not only doctrine but also economics and business. Transactional lawyers must understand the business, financial, and economic aspects of deals so as to draft workable contracts and disclosure documents, conduct due diligence, or counsel clients on issues that require business savvy as well as knowing the law.

I want my students to understand that successful transactional lawyers build their practice by adding value to their clients’ transactions. Instead of thinking like Kingsfield, I want them to learn where the value in a given transaction comes from and how they might add even more value to the deal.

The problem with most law schools is that we have too many litigators and ex-litigators and not enough deal lawyers. So why would Judge Kopf want to contribute to that problem by giving trial lawyer law professors yet more recognition and praise? Why this bias against deal lawyers?

Finally, I suspect Judge Kopf’s many fans in the “law school is a scam” crowd will take issue with his list if they stop to think about its implications. Judge Kopf is “only interested in law professors who litigate while they also teach law. Exclude professors who were once trial lawyers but who no longer spend time in the trial courtroom.”

Of course, one of the main complaints by the law school scam crowd is that too many law professors spend too much time doing things other than teaching. Given how intensive trial work is, a law professor who is spending much time first chairing cases is a law professor who likely is not spending all that much time preparing for class, mentoring students, and so on.

In sum, without wanting to start a fight—just a discussion, I think Judge Kopf’s latest project doesn’t make much sense to me.

January 26, 2013: Theodore Dalrymple on the anti-smoking zealots and their trial lawyers

At Liberty Law Blog:

I am no friend to smoking, therefore; but even I feel a certain unease about the zealotry of the anti-smokers. The problem is that, in the modern world (though perhaps it was always so), a good cause is turned into rent-seeking, and generally into rent-finding as well.

Examination of the legal proceedings in the United States against the tobacco companies persuaded me that the real tort in the case was, in effect, the transfer of the profits of the tobacco companies from the shareholders to the trial lawyers. The last thing that anyone wanted to do was drive the milch-cow, the tobacco companies, into bankruptcy, or simply to close them down so that they could be sued no more. Governments, which had been deriving large revenues from the tobacco companies’ products for many years in spite of knowledge of the effects of smoking, were at least as responsible for any harm done by tobacco as the companies. No doubt the tobacco companies lied in a disgraceful fashion about the harmfulness of their products, but I have never met anyone who believed their lies; and although no longer young, I grew up knowing that smoking was bad for you in the same way that I knew that the world was round and the Battle of Hastings was in 1066. As to the supposed impossibility of giving up smoking once started because of the addictiveness of nicotine, this was clearly nonsense; what millions of people (including my mother) have done cannot be impossible.

And where there are rents to be found, lawyers will be there to take our cut.

February 20, 2012: Go buy the latest issue of The Economist

The most recent issue of The Economist has extensive treatment of the way regulation is strangling the American economy. A briefing paper gives extended treatment of how Dodd-Frank continues to grow through regulatory actions fleshing out vague Congressional mandates, for example.

My major quibble is that the various articles lay the blame at the feet of Congress and regulators. The role courts play in gumming up the works gets only brief mention in an article on nuclear power. Any realistic assessment of how the US is over regulated would have to take into account the role of activist judges and so-called “public interest” litigants using environmental and other statutes to throttle growth.

The role of the trial lawyers as so-called private attorneys general also needs to be considered when assessing the impact of law and regulation on the economy. As the Trial Lawyers Inc. project demonstrated, tort suits (and lawsuits in related fields like securities regulation) devour at least 2% of GDP per year. It found that “Over the last 30 years, tort costs grew at a compound annual rate of 9.1%; by comparison, the U.S. population grew 1.1% annually, the consumer price index grew 5.0% annually, and the gross domestic product grew 7.6% annually during the same period.”

Anyway, you need to read this compelling critique.

July 1, 2010: Trial Lawyers and the BP Oil Spill

The WSJ reported today that:

Plaintiffs’ attorneys are scrambling to avoid being frozen out by a $20 billion fund aimed at compensating Gulf of Mexico oil-spill victims outside of court.

The attorneys had hoped litigation against BP PLC and other companies involved in the spill would net them tens or even hundreds of millions of dollars in fees. Many quickly turned their attention to the spill in April from what was then the mass tort of the moment, suits against Toyota Motor Corp. tied to unintended acceleration.

But the legal landscape shifted dramatically earlier this month when BP agreed to create a $20 billion escrow fund to pay individuals and businesses suffering losses from the spill.

Administrator Kenneth Feinberg has said the fund would pay claims far more quickly than lawsuits, which could take years in court. He also pointed out that claimants could avoid costly attorneys’ fees by filing claims without a lawyer’s help. Claimants who receive payouts from the fund would have to waive their right to sue BP.

Predictably, this has annoyed the plaintiffs’ lawyers who were counting on making zillions off this calamity. In the plaintiffs’ bar’s world, at least 40% of that $20 billion should have been diverted into lawyer’s bank accounts instead of paying claims to people who were injured. After all, they’ve got yacht and Gulfstream payments to make. Plus, they’ve got to funnel zillions of campaign contributions to Democrats who will pass new laws creating new liabilities for lawyers to use to bring ever more lawsuits.

Think I'm exaggerating? The Journal article concludes:

As prospects of an oil-spill jackpot for the plaintiffs bar became less clear, some attorneys ... were already looking elsewhere for potential targets. Several clustered around a newspaper article describing how two new studies had shown a diabetes pill was tied to heart attacks.

I rest my case.

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Since the late 1990s, the number of publicly traded companies has fallen by more than half. Initial public offerings, once a reliable engine of economic dynamism that let ordinary Americans invest in tomorrow’s great companies, have plummeted.

A Short Digression from the Department of Self-Promotion

By the way, I took note of the same phenomenon last fall:

Bainbridge on Corporations

The Ongoing Decline in the Number of US Public Corporations

A blog post by John Jenkins at the invaluable TheCorporateCounsel.net blog alerted me to a blog post at DLA Piper, which in turn alerted me that the SEC created a Statistics & Visualizations page…

Read more

9 months ago · 4 likes · Stephen Bainbridge

Why do we Care?

Zywicki does not devote a lot of attention to the “who cares” question, although that’s doubtless due to the space limitations of the op-ed format. But despite the brevity of his comments, they are quite telling:

… this decline in public offerings limits Americans’ access to investment opportunities and shifts capital formation toward private markets that are largely inaccessible to ordinary investors. …

Innovative and new companies — artificial intelligence companies, in particular — have become the latest cash cow for securities lawyers. In turn, economists have found that innovation and economic growth are being impeded by this rising threat of litigation.

I concur.

The dramatic decline in publicly traded U.S. corporations has had serious consequences for the American economy’s dynamism and efficiency. Public equity markets have historically served as the primary mechanism for allocating capital to its most productive uses, with competitive pricing of shares reflecting the dispersed information and judgment of millions of investors. When companies remain private or are absorbed through M&A rather than going public, this price discovery function is impaired. Capital gets channeled instead through private equity and venture capital, which are accessible only to institutional investors and the ultra-wealthy, meaning that investment decisions affecting large swaths of the economy are made by a far narrower set of actors with less informational diversity. The result is a less efficient deployment of the nation’s capital stock and a greater concentration of economic decision-making power.

The consequences for ordinary Americans are equally troubling. Historically, the public equity markets were a vehicle through which middle-class households could accumulate wealth by owning stakes in growing companies. As firms stay private longer — or never go public at all — the wealth generated during the high-growth phases of corporate development accrues almost exclusively to venture capitalists, private equity funds, and their wealthy limited partners. By the time a company does reach public markets (if it ever does), much of the appreciation has already occurred. This dynamic has contributed to widening wealth inequality, since participation in private markets is largely limited to accredited investors who already meet high income or net-worth thresholds. The shrinkage of the public markets thus represents not just an economic efficiency loss but a structural barrier that prevents ordinary Americans from sharing in the gains of entrepreneurial capitalism.

Zywicki’s Explanation

If Zywicki and I are right that the decline in the number of public corporations is bad for both the investing public and entrepreneurs, why is it happening?

Zywicki lays the blame at the feet of trial lawyers, especially securities class action plaintiff lawyers:

Meritless securities suits have become a reliable way for trial lawyers to extract massive settlements from public companies, often with little connection to actual investor harm. …

A company accused of making a false statement may already face a direct fraud lawsuit over the underlying conduct. Then, when that allegation becomes public and the stock price falls, a separate class of shareholders, often represented by the same plaintiffs’ firm, files suit. This effectively allows trial lawyers to recycle the same allegation into a second round of litigation. If settled, the company pays twice for the same alleged wrong, irrespective of whether either claim was ever proved on the merits.

Allowing this to continue unabated serves one constituency: trial lawyers, who pocket exorbitant fees while companies, workers and consumers absorb the real costs.

My Take

I largely agree with Zywicki. Indeed, over a decade ago I contributed a chapter to a wonderful—albeit somewhat depressing book The American Illness: Essays on the Rule of Law (Amazon Link):

This provocative book brings together twenty-plus contributors from the fields of law, economics, and international relations to look at whether the U.S. legal system is contributing to the country’s long postwar decline. The book provides a comprehensive overview of the interactions between economics and the law—in such areas as corruption, business regulation, and federalism—and explains how our system works differently from the one in most countries, with contradictory and hard to understand business regulations, tort laws that vary from state to state, and surprising judicial interpretations of clearly written contracts. This imposes far heavier litigation costs on American companies and hampers economic growth.

My chapter was How American Corporate and Securities Law Drives Business Offshore, in which I argued that:

During the first half of the last decade, evidence accumulated that the U.S. capital markets were becoming less competitive relative to their major competitors. The evidence reviewed herein confirms that it was not corporate governance as such that was the problem, but rather corporate governance regulation. In particular, attention focused on such issues as the massive growth in corporate and securities litigation risk and the increasing complexity and cost of the U.S. regulatory scheme.

Tentative efforts towards deregulation largely fell by the wayside in the wake of the financial crisis of 2007-2008. Instead, massive new regulations came into being, especially in the Dodd Frank Act. The competitive position of U.S. capital markets, however, continues to decline.

This essay argues that litigation and regulatory reform remain essential if U.S. capital markets are to retain their leadership position. Unfortunately, the article concludes that federal corporate governance regulation follows a ratchet effect, in which the regulatory scheme becomes more complex with each financial crisis. If so, significant reform may be difficult to achieve.

The Role of Litigation

With respect to the role litigation plays in the decline of public companies, I argued that:

An effective anti-fraud regime has obvious benefits. It serves to compensate defrauded investors. It deters fraud. It provides a bond making issuer disclosures more credible and thereby lowers the cost of capital. The question remains, however, whether the current U.S. anti-fraud regime imposes costs that may outweigh or, at least, reduce these benefits.

An affirmative answer to that question is suggested by a survey of global financial services executives, which found that the litigious nature of U.S. society and capital markets has a negative impact on the competitiveness of those markets. The key problem appears to be the prevalence of private party securities fraud class actions, which do not exist in most other major capital market jurisdictions.

Between 1997 and 2005 there was a steady increase in both the number of securities class action filings and the average settlement value of those suits. The total amount paid in securities class actions peaked in 2006 at over $10 billion, even excluding the massive $7 billion Enron settlement. The vast majority of such settlement payments historically have been made either by issuers or their insurers, rather than by individual defendants. As a result, the vast bulk of securities settlement payments come out of the corporate treasury, either directly or indirectly in the form of higher insurance premia. In either case, settlement payments reduce the value of the residual claim on the corporation’s assets and earnings. In effect, the company’s current shareholders pay the settlement, not the directors or officers who actually committed the alleged wrongdoing.

The effect of securities class actions thus is a wealth transfer from the company’s current shareholders to those who held the shares at the time of the alleged wrongdoing. In the case of a diversified investor, such transfers are likely to be a net wash, as the investor is unlikely to be systematically on one side of the transfer rather than the other. Because there are substantial transaction costs associated with such transfers, moreover, the diversified investor is likely to experience an overall loss of wealth as a result of the private securities class actions. Legal fees to plaintiff counsel typically take 25-35% of any monetary class action settlement, for example, and the corporation’s defense costs are likely comparable in magnitude.

The circularity inherent in the securities class action process reduces the effectiveness of private anti-fraud litigation as both a deterrent and means of compensation. As to deterrence, because it is the company and not the individual wrongdoers that pays in the vast majority of cases, the system fails to directly punish those individuals. As to compensation, the transaction costs associated with securities litigation ensure that investors are unlikely to recover the full amount of their claims. Indeed, there is evidence that investors recover only two to three percent of their economic losses through class actions.

The analysis to this point has implicitly assumed that all securities fraud class actions are meritorious. When one considers the potential for frivolous or nuisance litigation, the potential impact of litigation on the capital markets is compounded. …

The litigation risk problem is not limited to securities class actions. We see essentially identical concerns in areas such as state corporate law derivative litigation. …

Like securities class actions, derivative litigation mainly serves as a means of transferring wealth from investors to lawyers. At best, derivative suits take money out of the corporate treasury and return it to shareholders minus substantial legal fees. In many cases, moreover, little if any money is returned to the shareholders, but legal fees are almost always paid.

Other Factors

Although I’m confident litigation has been a major factor in the decline of US public markets, I don’t think it is the only factor.

Over-Regulation

The regulatory burden from federal law has had a cumulative effect that significantly contributed to the decline in public companies, though the impact varies by company size and regulatory framework. Sarbanes-Oxley appears to be the most significant regulatory contributor to public company decline, with documented evidence of companies specifically citing SOX as a reason for delisting. Dodd-Frank had a more sector-specific impact, primarily affecting financial institutions through massive increases in regulatory requirements. More generally, cumulative SEC regulations create a “death by a thousand cuts” effect, particularly for smaller companies.

Having said that, however, I must confess that the evidence suggests that over-regulation is not the main driver of the decline in public companies. But while over-regulation likely is not the primary numerical cause of the decline, these regulations have fundamentally altered the cost-benefit calculus of being public, particularly for smaller companies, making private markets relatively more attractive and contributing to companies staying private longer.

Still Others

As I discussed in my Substack last fall, other factors include the rise of private equity and venture capital, the shift towards intangible assets, and industry consolidation.

Conclusion

There is no doubt that the number of US public corporations has shrunk. As with most economic trends, the reasons driving this long-standing trend are multiple and complex. As Zywicki so cogently argued, however, the litigation risks that public corporations face is undoubtedly a major component.

It’s long since time that courts and lawmakers step up and address the problem.

• ½ lb ground beef

• 1 medium shallot, diced

• 1 clove garlic, minced

• ½ tablespoon tomato paste

• 187 ml white wine (I buy those little four packs of Robert Mondavi Woodbridge to cook with)

• 1-½ cups beef stock

• ½ cup evaporated milk

• ½ teaspoon paprika

• 5 ounces cavatappi pasta

• 3 ounces cheddar cheese, grated

• 3 ounces Monterey jack cheese, grated

• salt and pepper to taste

I cooked the entire meal in my Cucina 12-inch electric skillet. It is an excellent tool for dishes like this.

Heat the pan to 350°. (The Culina thermostat is reasonably accurate, but I like to check it with an infrared thermometer gun.) Add just enough vegetable oil to very thinly coat the pan. Add the ground beef. Season the beef with salt and pepper. Cook until pieces begin browning. Remove the ground beef to a paper towel lined plate to drain.

Wipe out the pan and reheat to 325°. Again, lightly coat the pan with oil. Sauté the shallot pieces until they begin to color (do NOT let them burn). Add garlic and tomato paste. Sauté for about 30 seconds.

Return meat to pan. Add wine, raise temperature to 350° and bring to a boil. Reduce heat to a simmer. Allow wine to reduce towards a glaze. Add stock and milk, stirring briskly. Add paprika. Taste and add salt and/or pepper as needed. Add cavatappi and cover. Cook pasta about 9 minutes, stirring occasionally, checking so that you can turn the heat down to low just after the pasta becomes al dente. Add cheeses and stir until they melt. If the sauce gets too thick, add a few tablespoons of water to thin it. Taste and adjust the seasoning as necessary. Serve.

I served it with Cook’s Illustrated’s Spinach Salad with Gorgonzola and Pear, which made a very nice match.

Wine Pairing

Ridge Vineyards Evangelho (Contra Costa County) 2022

A blend of 55% Carignane, 26% Zinfandel, and 19% Mataro. Deep purple color. Medium-bodied. Complex. Mocha java. Pepper. Red fruits. Soft tannins. Well-balanced with good structure. Very food friendly. Will age. Excellent match.

One does not usually think of Carignane as making outstanding wine. As Jancis Robinson notes:

The wine produced is typically high in rough tannins and acidity and in southern France the softening vinification method of carbonic maceration routinely has to be used to ensure that wines made from Carignan can be drunk reasonably young. I find a rank bitterness in many Languedoc red blends too dependent on high-yielding Carignan.

But Robinson also notes that:

Old-vine Carignan grapes, fully ripened on infertile soils in a warm summer, produce by far the best Carignan wine. The key here is that yields have been restricted and there is enough ripe fruit character to mask the naturally high tannins and acidity.

The Evangelho vineyard is precisely the type Robinson describes as producing quality Carignane:

Old vines planted on an ancient alluvial sandbar where the Sacramento and San Joaquin Rivers merge with the cooling waters and breezes of the San Francisco Bay. These gnarly vines are 120 years-old and are head-pruned, non- irrigated, and on their original root stock.

The last point is especially interesting, because the phylloxera louse has wiped out European grape varieties planted on their own roots worldwide, including most of California. As a result, the vast majority of vitis vinifera grapes come from European vines that have been grafted onto American rootstock. Whether grafted or own rootstock vines produce superior wine is a matter of some controversy. And not one I propose to resolve.

The Wine Atlas Collective is an association of independently operated, family-led wineries from America’s top wine regions, united by a shared commitment to sustainable farming, innovative winemaking, and authentic hospitality.

Participating wineries include:

• Blenheim Vineyards – Charlottesville, VA

• Brooks – Willamette Valley, OR

• Frog’s Leap – Napa Valley, CA

• L’Ecole № 41 – Walla Walla and Woodinville, WA

• Red Tail Ridge – Finger Lakes, NY

• Ridge Vineyards – Santa Cruz Mtn, Dry Creek Valley, Paso Robles, CA

• Tablas Creek Vineyard – Paso Robles, CA

• William Chris Vineyards – Texas Hill Country, TX

We know Frog’s Leap, L’Ecole, Ridge, and Tablas Creek, and are fans of all four, so we decided to give it a try.

Our first shipment of 8 wines arrived last week. So, last night we ordered an assortment of sushi and meat items from one of our favorite local Japanese restaurants and had an impromptu tasting of five of the wines. Three whites to go with the susho and two reds to go with the beef.

Brooks Estate Vineyard Riesling (Eola-Amity Hills; Willamette Valley) 2024

Although this was our least favorite of the five wines we tasted, it was neverthless very good. It just wasn’t quite as good as those that followed.

A very pale yellow color. Brisk acidity on the palate. Very tart. Atypical for a Riesling, although I confess to being much more familiar with Alsatian than US Rieslings (Trimbach is our go to for Riesling). One dimensional. Suggested Meyer lemon with herbal notes. There’s some residual sugar, but it’s not a distinctively sweet wine. Clean and well-balanced. Would work well with something like Sole Meuniere.

L’Ecole № 41 Semillon Stillwater Creek Vineyard (Royal Slope; Washington) 2024

This was our favorite of the three whites. Pale gold color. On the nose, we were reminded of honeydew melon, orange blossoms, and pear. On the palate, the flavor associations tracked the aroma. Complex, layered flavors. Good, bright acidity, but balanced. It struck us as a very food friendly wine that would go well with a wide range of dishes. It played especially well with the Toro sushi. But I would happily drink it with anything from Chilean sea bass to roast chicken.

Frog’s Leap Sauvignon Blanc (Rutherford; Napa Valley) 2024

This is an old favorite, which we’ve enjoyed across many vintages. It’s closer to the fruity end of the Sauvignon Blanc spectrum than the grassy end. On both the nose and palate, it suggested white peach, citrus blossoms, a flinty minerality, and a touch of grass and herbs. Very well balanced, with some heft to the body. I think it would prove a very versatile wine with food, especially grilled halibut or snapper (probably not salmon or tuna). It’d be fine as an apertif, although I think I would prefer the Semillon.

Tablas Creek Vineyard En Gobelet (Adelaida District; Paso Robles) 2023

Helen and I are big fans of Tablas Creek. They produce a wide range of Rhone-style blends, including both reds and whites. We generally prefer their reds, but the whites are also quite good.

The En Goblet is one of their limited production wines. In 2023, it was a blend of 49% Grenache, 31% Mourvèdre, 14% Syrah, 3% Counoise, and 3% Tannat. (I’m always somewhat amazed that winemakers can decide whether a blend needs 3% of a varietal or 4%.) It slots in between the top of the line Esprit de Tablas and the mass market Patelin de Tablas.

This was a lovely wine. It presented blueberry, plum, chocolate, and herbal aromas and flavors. Well balanced. Bright with plenty of food friendly acidity. Long finish, suggesting pepper and minerals.

It’d do well with a wide variety of meats, but I think it would sing with grilled, garlicky leg of lamb.

Ridge Vineyards Ponzo Gamay Noir (Sonoma County) 2025

Ridge was one of the first up-market wines we collected. We’ve been drinking it for four decades now and been members of their wine club for most of that time. So, it’s probably not surprising that in a non-blind taste test this was one of our favorites. Still, I think aa completely impartial and objective taster would have said the same thing. In any case, speaking personally, I rated it a close second to the Tablas Creek, while Helen rated it number one.

Helen and I like Beaujolais wines, although they’re not one of our favorites. As for California Gamay, we’ve steered clear. Of course, the problem was that mass market wineries—like the one whose name rhymes with fallow—used to make cheap “Napa Gamay,” which used a different grape that was overcropped and indifferently made.

Real Gamay grapes are rare in California, but seem to making something of a comeback. Ridge explains:

Ponzo Vineyard is located on the northernmost edge of the Russian River Valley appellation. It is situated on the slopes above the Russian River, south of the town of Healdsburg. …

This site is comprised primarily of zinfandel planted on fine sandy loam and well-drained gravelly soils.

Ponzo recently planted Gamay vines in sufficient number to double Sonoma county’s production. The 2025 is Ridge’s inaugural vintage of this variety.

When we first opened it, there was a very odd note of banana on the nose, but it blew off pretty quickly. It made me wonder whether Ridge used carbonic maceration for part of the wine, but it lacked the candy and bubblegum flavors you associate with Beaujolais that’s undergone the process.

It smelled and tasted of a melange of rich, ripe red fruits—cherries, raspberries, and strawberries. Medium bodied with low, soft tannins. Not super fruity like Beaujolais Nouveau, but more structured and earthy like a good Cru Beaujolais.

Not a wine to cellar, but I ordered a few bottles to drink this summer with grilled steaks and chicken. I think it also will make an interesting match for teriyaki salmon cooked on a cedar plank. In fact, I can’t wait to try that one.

Conclusion

This leaves us with three to try wines from the first shipment. Maybe next week?

I leave you with a recommendation to consider joining Ridge’s wine club and the Wine Collective.

A Republican National Committee lawyer is the first judicial nominee of President Donald Trump’s second term to be given a “not qualified” rating by the American Bar Association.

A majority of the ABA’s standing committee on the federal judiciary, which vets judicial nominees, gave the rating to RNC senior counsel Kathleen “Katie” Lane, who’s nominated for a seat on the US District Court for the District of Montana.

Lane’s rating was due solely to her lack of experience, and not other factors including temperament or integrity, according to an April 7 letter from the standing committee.

Predictably, this triggered Above the Law to launch a partisan attack on Trump’s judicial nominees:

A quick trip down memory lane reminds us that the ABA handed out plenty of “not qualified” stickers during Trump 1.0. They scraped the bottom of the barrel and found ghost hunters, anti-gay bloggers, straight-up associates, and one candidate (ultimately confirmed because we live in the dumbest timeline) that is an “arrogant, lazy, an ideologue, and lacking in knowledge of the day-to-day practice including procedural rules” (an assessment Judge VanDyke’s time on the Ninth Circuit has proven the ABA prescient).

ATL continues:

Naturally, the White House response to all this was not “maybe we should nominate someone who has, you know, tried a case,” but rather to attack the messenger. Spokesperson Abigail Jackson dismissed the ABA as “useless and partisan” and insisted that Trump’s nominees undergo a “rigorous vetting process.” Which is a bold claim for an administration currently batting cleanup with candidates who have never picked a jury.

My track record as a vocal critic of Trump 2.0 is well established. Yet, just because the Trump administration is wrong about almost everything does not mean is it wrong about everything. See the proverbial stopped clock.

In this case, I’m not claiming Lane is qualified or that she ought to be informed.

But I’ve long agreed with the proposition that the ABA is “useless and partisan.”

As far back as 2005, ABA member and then co-chair of the Professional Liability Litigation Committee of the ABA's Section of Litigation Joseph Smith argued that the American Bar Association’s rating of then SCOTUS nominee John Roberts

... should be viewed no differently from an opinion expressed by any other special-interest group. Yet that is not how ABA ratings are received by the public or used by politicians. The ABA knows this and takes advantage of it. That’s why when the ABA releases its rating on Judge Roberts, it will do so without acknowledging political motives.

Smith went on to point out that over the previous 15 years the ABA had “become even more stridently left-wing, yielding an organization that advances a vision more akin to Howard Dean’s than James Madison’s or even Bill Clinton’s.”

Smith therefore didn’t trust the ABA to give Roberts a fair shake and pointed to history that he claimed bore him out:

If history is any indication, however, the ABA will struggle with the Roberts rating for a simple reason: He is conservative. For that sin, the nominee may earn a split vote or worse. That disservice was infamously done to Robert Bork in 1987, when President Reagan nominated him to the Supreme Court. Mr. Bork earned four “not qualified” votes from the ABA’s 15-member committee—an egregious insult.

In 1991, the ABA again let politics cloud its judgment when rating Clarence Thomas after the first President Bush nominated him to the Supreme Court. Two of the ABA's committee members branded him "not qualified" -- again an outrage, given his record. Some within the ABA acknowledge that the Bork and Thomas ratings were shamefully partisan.

Granted, the ABA committee that vets judicial nominees overcame its biases in the Roberts case:

President George W. Bush nominated Judge John Roberts of the U.S. Court of the Appeals for the D.C. Circuit to the vacancy left on the Supreme Court when Justice Sandra Day O’Conner announced her resignation. After Chief Justice William Rehnquist’s death in September, President Bush nominated Judge Roberts for the chief justice position. The ABA thus rated Judge Roberts for both positions on the Court. Each time, he received the unanimous rating of “well qualified.”

Yet, Smith’s concerns were well founded. After all, the Bork and Thomas episodes were not just isolated cases. In 2001, Northwestern law professor James Lindgren had documented a consistent pattern of ABA bias:

I’ve just completed a statistical study of the ABA’s ratings of appointees to the U.S. Courts of Appeals during the Clinton and first Bush administrations and can report that the facts don’t support the ABA’s claim of objectivity. The ABA may once have been objective, but it’s not anymore.

I analyzed the credentials of the 108 nominees who were ultimately appointed to the federal appeals courts during the Clinton and Bush-1 administrations. The results? The ABA applied measurably different and harsher standards during President George H. W. Bush’s administration than it applied during President Bill Clinton’s tenure. In short, the Bush appointees got lower ABA ratings than the Clinton appointees.

And, no, it wasn’t because Clinton nominated better judges:

A Clinton nominee with few of the six credentials I measured had a much better chance of getting the highest ABA rating than a Bush nominee with most of these credentials. For example: A nominee with an elite law school education, law review, a federal clerkship, and experience in both government and private practice would have only a 32% chance of getting the highest ABA rating if he were a Bush appointee, but a 77% chance if he were a Clinton appointee. A Clinton nominee with none or just one of these five credentials would still have at least a 45% chance of getting the highest rating.

It was bias, pure and simple.

While Roberts so obviously qualified (and, arguably, mainstream just barely right-of-center), we saw a resurgence of that bias in 2006 in the Brett Kavanaugh nomination to sit on the DC Circuit:

The A.B.A. committee that evaluates judicial nominees said that the nominee, Brett M. Kavanaugh, a White House aide, was qualified to sit on the United States Court of Appeals for the District of Columbia Circuit. But the committee had given him a significantly higher rating on the two previous occasions he was nominated for the post.

As Ted Frank observed:

Brett Kavanaugh, whose nomination to the D.C. Circuit has been held up for years, has received two "well-qualified" evaluations from the ABA. However, in recent weeks, the Democrats have singled Kavanaugh out as someone they want to make a stand on, even getting a second Judiciary Committee hearing on him. And the ABA has now followed suit, downgrading Kavanaugh from "well qualified" to "qualified"—apparently, the additional experience of being Staff Secretary for the Bush administration as he awaits a Senate vote makes him less qualified. The committee president, Stephen Tober, went on to leak to the New York Times various anonymous bad-mouthing of Kavanaugh in a smear inconsistent even with the "qualified" rating.

And the beat went on.

From The National Review in 2012, for example:

The ABA’s glaring ideological bias has been noted by prominent commentators on the right and the left. Adam Liptak of the New York Times characterized the ABA as “a private trade association, not an arm of the government,” that “takes public and generally liberal positions on all sorts of divisive issues.” These include liberal positions on everything from same-sex marriage, gun control,and religious liberties, to even matters of national security.

But the ABA’s bias extends beyond liberal policy positions, and into the rating of a president’s judicial nominees. The Wall Street Journal just addressed this issue yesterday:

“A 2009 study by the Midwest Political Science Association found that with all else equal, ‘nominations submitted by a Democratic president were significantly more likely to receive higher A.B.A. ratings than nominations submitted by a Republican president.’” …

The 2009 study found that “the most liberal nominees had a 62.3% chance of receiving a ‘well-qualified’ rating from the ABA, as opposed to only a 35.5% likelihood for the most conservative nominees.” It also found that “nominees in the Clinton Administration were 14% more likely to get the ABA’s highest rating than the nominees of Presidents Reagan, George H.W. Bush and George W. Bush.”

The author went on to make a point highly pertinent to the debate over Lane’s nomination:

To wit, Goodwin Liu, the liberal darling from the University of California, Berkley, (a failed Obama nominee to the Ninth Circuit and now a justice on the California Supreme Court) received the ABA’s highest rating despite not meeting the group’s own written standards for qualification for the bench. As Ethics and Public Policy Center President Ed Whelan has noted, the ABA specifies that a nominee should “ordinarily have at least twelve years experience in the practice of law,” and be a veteran of the courtroom. Mr. Liu had neither, but still got the “well-qualified” nod from the ABA.

No such love was extended to the more conservative Frank Easterbrook, who earned a “qualified/not qualified” rating from the ABA despite having served as Deputy Solicitor General and argued 20 cases before the Supreme Court.

The author went on to note that:

This bias is not just a function of a liberal review committee, but is embedded into the ABA’s criterion for judicial qualifications. The authors of the 2009 study have one possible explanation for why the ratings system could be flawed:

“We believe the disparity may be due to the ABA’s rating criteria of “judicial temperament,” defined by the ABA as including open-mindedness, commitment to equal justice and freedom from bias. We agree that potential federal judges need to be open-minded, of the highest integrity, and unbiased in their approach to each case and litigant. However, if these words are more broadly interpreted to suggest, for instance, that nominees must hold certain views on public policy issues such as affirmative action or equal rights, then ideological biases may permeate the ABA’s evaluation process.”

Instructively, the ABA still uses those criteria in assessing judges.

Okay, you might say, what about more recent periods? Maybe the ABA cleaned up its act.

Nope.

Of the 22 judicial nominees rated “not qualified” by the ABA since 1989, 4 were nominated by Clinton. The other 18 were nominated by Bush 43 (8) or Trump (10). Given Lindgren’s findings about the Clinton nominees, you can’t blithely assume the differential is driven solely by qualifications.

After all, the ABA is not exactly a neutral arbiter:

Despite claiming to be nonpartisan, the ABA has supported and lobbied for a broad left-of-center agenda on issues including criminal justice policy, immigration, abortion, LGBT issues, and gun control. In recent years, the ABA has adopted lobbying priorities including legal status for nearly all illegal immigrants living in the United States, the repeal of mandatory-minimum sentencing laws, taxpayer-funded abortions for low-income Americans, and the implementation of affirmative action programs. …

The ABA frequently files amicus briefs in politically contentious cases, in addition to directly advocating for left-of-center policy through its House of Delegates.

Accordingly, I’ve argued for over two decades that neither the President nor the Senate should give the ABA’s rating of judges any greater weight than, say, that of the People for the American Way. Indeed, one should give PFAW credit for at least being honestly liberal, while the ABA lies about its politics.

There’s a lot of ingredients here, but you end up with a very complex and delicious sauce.

I typically start by making the waffle batter and letting it rest in the refrigerator while I prepare the shakshuka base. Then I make the waffles, which I transfer to a warming over while finishing the shakshuka by adding adding the eggs and feta.

As usual, this recipe is proportioned for two good eaters.

Shakshuka

• 2 lamb merguez sausages, casings removed and chopped into bite-size pieces

• 1 large shallot or medium onion, diced

• 6 green onions sliced thinly, whites and green separated

• ½ red or orange bell pepper (the last time I made this I had an Anaheim pepper on hand, which worked great), diced

• 3 garlic cloves, sliced thinly

• 1 tablespoon tomato paste (I like the paste that comes in tubes rather than cans)

• ½ tablespoon Better than Bouillon sofrito

• 1 teaspoon harissa seasoning (I like Morton & Bassett)

• ½ teaspoon ground cumin

• ½ teaspoon ground coriander

• ½ teaspoon ground fennel seeds

• 1 14.5 ounce can of whole peeled San Marzano tomatoes (I like Cento)

• Optional: unsweetened coconut milk (this is very untraditional but I had about a third of can left over from making curry the night before, so I threw it in and it worked out great)

• 1 teaspoon Better Than Bouillon premium vegetable base

• salt and freshly ground black pepper to taste

• olive oil

• 3 ounces feta cheese

• 2 large eggs

In a large skillet, such as my trusty All-Clad D3 stainless steel pan, which is 8 years old and still going strong, heat a tablespoon of oil over medium-high heat. When it begins to shimmer, add the sausage. Cook until browned on all sides and no longer pink in the center, which should take 6-8 minutes. Remove the sausage to rest on a paper towel-lined plate.

Return the skiller to the heat, turning it down to medium. Add the onion and pepper. Add a pinch of salt. Sauté until they soften and start to turn translucent, which should take about 8 minutes. At about the 4-minute mark, add the white parts of the scallions.

Turn the heat down to medium-low. Add the tomato paste, garlic, and spices. Sauté for one minute, stirring constantly. Do not let the garlic burn.

Add tomatoes with their juices. Use a potato masher or wooden spoon to roughly break up the tomatoes. Rinse the can out with water, adding about half a can's worth of water to the pan. Add coconut milk (if using)

Bring the sauce to a simmer over medium-high heat. Reduce the heat to low and add the sausage.

Cover the pan and allow it to gently simmer while you prepare the waffles.

When the waffles are ready remove the cover from the pan and raise the heat to medium. If the sauce has gotten too dry, add water to taste. Taste the sauce and adjust seasoning with salt and pepper to taste.

Using the back of a large spoon make two small hollows in the sauce. Crack the eggs into the hollows. Scatter the feta over the top and cover. I like the egg whites to set but the yolks to stay runny, which takes 3-5 minutes.

Serve on top of the waffles.

Waffles

• 1 cup waffle mix; the brand I use requires adding:

  • 1 egg

  • ½ cup plus 2 tablespoons whole milk

  • 1-½ tablespoons vegetable oil (for this purpose, I use olive oil)

• ¼ teaspoon freshly ground black pepper

• 2-½ ounces finely grated Parmesan or Pecorino (use the real stuff)

• 1-½ ounces finely grated gruyere or fontina

• 1-½ tablespoons fresh chives, minced

• 1 teaspoon dried Italian parsley

In a medium mixing bowl, combine the ingredients and which gently just enough to break up and large lumps.

While the shakshuka simmers, prepare the waffles. I use my Breville panini press with the waffle plate accessory. Heat both plates to 450°. Once the grill is preheated, add 1/2 cup of batter mix to each square. Close and cook for 4-5 minutes or until golden brown.

Top the waffles with the shakshuka sauce and 1 egg per person. Garnish with the tops of the green onions and more feta cheese to taste.

Wine Pairing

If you want to go white, something like Sauvignon Blanc would work well. A Prosecco would not be amiss.

But I wanted red. Given the high acidity and spice level of the dish, I should have been looking for a young, low-tannin, fruit-forward, straightforward wine. Gamay or Barbera would work well. A lighter Grenache, Syrah, Mourvedre blend would be lovely.

Ultimately, however, I went with a 2023 Pessimist by Daou. It’s a blend of 68.7% Petite Sirah, 17.9% Syrah, 11.4% Zinfandel, and 2.0% Lagrein. It’s fuller bodied and higher in alcohol than some of the options I suggested, and the 2023 is more tannic than most vintages, but it’s a wine I’ve had often with spicier fare and it has always worked well. It neither gets washed out by the spice nor dominates the meal. It makes a nice complement. Anticipating that I would go this direction is one reason why I cut back on the harissa and didn’t add hot sauce, so that the spice level ended up being moderate. In any case, it made a very mice match. There’s a ton of lucious blackberry and plum fruit, which played well with the complex flavors of the shakshuka.

Zoe’s Tale

When I first read about Zoe’s Tale (AMAZON LINK) on Scalzi’s blog, I was skeptical. ZT is a retelling of the events of The Lost Colony. Been there, done that, right? If Orson Scott Card couldn’t pull it off (I hated Ender’s Shadow and all the rest of the Bean series, although YMMV), retelling the same events using a different POV character has got to be a very tough job. As for the different POVer, it’s a teenage girl. With the half century mark looming ever closer, teenage POVers no longer hold much interest for your truly. But especially not teenage girls.

So ZT started out with two strikes. Needless to say, as you’ll have seen this coming, I was hooked by the end of the first chapter and spent most of the rest of the work day—one of the secret advantages of being an academic—ripping through it. ZT solves two plot issues I’d had with TLC by filling in some key back story. More important, however, ZT stands alone. You could pick it up without having read TLC—or any of the other Old Man’s War series—and enjoy it very much. Neat trick. A third ball home run.

As for POVer Zoe, in many ways, she’s the most enjoyable of Scalzi’s POV characters to date. Zoe’s smart, sarcastic, witty, and vulnerable, in turn. She’s older and wiser than her years, but given what Scalzi put her through that’s okay. She reminded me a bit of my then 20-something nieces, both of whom are a joy to know and hang out with, which tells me that Scalzi’s done a really fine job of characterization.

One criticism. Scalzi’s come up with a very imaginative alien race in the Obin, but he’s now taken away the one thing that made them really unique. I understand why he had to do it as a plot device, but the resulting problem problem is that none of the alien races seem all that alien. General Gau, for example, seems no more alien than, say, Grand Admiral Thrawn. Of course, the same complaint could be made of virtually every science fiction novel in history. At the end of the day, they’re all just actors wearing Star Trek makeup.

That quibble aside, this is exceptionally good stuff.

An OMW story set 20-odd years later than TLC and ZT that explores the relationship between an adult Zoe and the Obin (and the Conclave and the CU) could be very interesting. A human friend of General Gau’s with inante political chops and an entire race of highly capable warriors at her beck and call would be a redoubtable political force. Imagine a cross between Joan d’Arc, Alexander the Great, and maybe Margaret Thatcher.

Another Shout Out

My review of ZT on my olg blog elicited a nice shout out from Scalzi:

Just in case you missed it over there in the Whateverettes, Steve Bainbridge has a nice ZT review as well. Bainbridge along with Glenn Reynolds and Eugene Volokh was one of the first promoters of my fiction, so I’m always pleased when/if the latest book passes his sniff test.

The God Engines

The God Engines (AMAZON LINK) was a major departure for Scalzi. It’s a fantasy noir—albeit with hints of an untold science fiction backstory—that gets darker as it progresses.

Much modern fantasy basically sucks. It consists either of endless vampire supernatural romance erotica or bloated series of door stoppers whose authors likely will drop dead before they finish. Sure, there are exceptions, like Brandon sanderson, but even his output is pretty uneven.

In The God Engines, Scalzi carved out something very refreshing: A concise, exciting, and highly original story. As Robert Thompson explained:

In “The God Engines”, John Scalzi introduces readers to a dark and chilling world where gods not only exist, but can also be tortured, enslaved, or even killed. A world where science has been replaced by faith, where Defiled gods are used as “engines” to power spaceships, where followers may be blessed with Talents—”a thing gods give followers to channel their grace, so the followers may use that grace to their own ends”—and where faith is a tangible power. A world of rooks, Bishop’s Men, and commentaries. A world that is highly imaginative, mostly original (parts of the novella reminded me of James Clemens’ Godslayer Chronicles), immersive despite having only 136 pages to bring the concept to life, and utterly captivating.

In this grim, yet fascinating world, readers will meet a small and well-drawn cast of characters—Captain Ean Tephe of the ship Righteous, Priest Andso, Commander Neal Forn, rook Shalle, the Defiled of the Righteous—who play a pivotal role in the events recorded in “The God Engines”. Events that are straightforward for the most part, but culminate in an explosive and mind-blowing finish full of dark twists and shocking revelations.

And then there was Paul Stott’s take on it:

The God Engines is unlike anything he’s done before, shockingly different, both new and completely unexpected. It’s the book Scalzi needed to write in order to mature as a writer and to take his considerable talents to the next level. It’s the book that shows he’s more than just a writer of humorous space operas; he’s also one of the best science fiction writers currently working.

A vastly rich tale set in a theocratic universe, The God Engines is a modern sci-fi classic, an intriguing examination of faith and worship and godhood. Intelligent and provocative, the narrative reminds me of a classic Twilight Zone episode, well-written, multi-leveled and rich with ideas. The God Engines is the best thing yet from John Scalzi and worthy of award consideration.

As you might expect from my opening comments, I disagree somewhat with Stott’s take that The God Engines is science fiction. It’s a hybrid of fantasy and science fiction, with the latter elements peeking through from time to time from a largely concealed backstory. It establishes Scalzi as someone capable of writing successfully in both genres.

In sum, highly recommended.

Judge Sn Goes Golfing

Judge Sn Goes Golfing (AMAZON LINK) is really a short story, although his publisher Subterranean Press called it a “chapbook,” whatever that is.

In the old days, it might have been a lead single issue short for Analog or Asimov, but Scalzi and Subterranean decided to make it available as a limited edition softcover. The story took a minor character from Scalzi’s novel The Android’s Dream (AMAZON LINK), put him on a golf course, salted the text with a slew of Carlin’s seven words, and churned out a witty and entertaining story. It reminded me of P.G. Wodehouse’s The Golf Omnibus (AMAZON LINK), which is high praise indeed. Like Wodehouse’s stories, you don’t need to be a golfer to enjoy Scalzi’s comedic stylings.

Questions for a Soldier

Questions for a Soldier (AMAZON LINK) is another short story masquerading as a book.

Questions is situated in Scalzi’s Old Man’s War universe. One of the now retired CDF veterans answers questions about his service. It’ll appeal mainly to fans of those books, since it fills in a bit more of their back story. Having said that, however, Scalzi’s ruminations on imperialism and soldiers are worth the $0.99 price of admission even for those who haven’t read the series.

An Election

An Election (AMAZON LINK) is still another short story masquerading a a book. It’s an interesting, quirky story about an election campaign in a city where humans and aliens cohabit more or less peacefully. There’s a fair bit of Scalzi’s trademark style of humor, about which folks seem to be sharply divided. I get it and like it, but YMMV. Anyway, at $0.99, what do you have to lose?

The Human Division

The Human Division (AMAZON LINK) was a serial novel published in 13 parts that were then combined into a single book with some additional content. Buy the book.

The Wall Street Journal (no less) gave it a strong review:

John Scalzi’s “The Human Division” (Tor, 431 pages, $25.99), the fifth novel in a sequence that began with “Old Man’s War” (2005), is in a long tradition too, back to Robert Heinlein’s “Starship Troopers” (1959), Joe Haldeman’s “Forever War” (1974) and Orson Scott Card’s “Ender’s Game” (1985). Humans have colonized other worlds and created a specialized military caste for protection from potentially hostile aliens. Ever since Heinlein, however, there has been uneasiness about the too-quick identification of “alien” as “enemy.”

Mr. Scalzi’s current volume follows up on that uneasiness. The “division” part of “The Human Division,” is between Earth and its colonies. Both sides need each other, but their interests are opposed. Alien races, meanwhile, alarmed at expansion of the Colonial Union, have formed a “Conclave” to block it. But will they distinguish Earth, which supplies recruits for the Colonial Defense Forces in exchange for protection, from the CU?

Unusually, “The Human Division” consists of 13 linked short stories. Showing a complex situation from different angles, they roughly alternate between the main plot and side plots. It’s slightly confusing at first, but Mr. Scalzi is one of the slickest writers that sci-fi has ever produced. His clever narration keeps you turning the pages, as the Conclave confronts wildcat colonies, the CU deals with “Earth Rule” insurgents and agents provocateurs unsettle all sides.

Recommended.

Redshirts and Scalzi versus Ringo

In 2013, Scalzi picked up a well-deserved Hugo Award for Best Novel for Redshirts: A Novel with Three Codas (AMAZON LINK). It’s an amusing, if sometimes convoluted, take on the problem memorably framed by Galaxy Quest’s Guy Fleegman:

I’m not even supposed to be here. I’m just “Crewman Number Six.” I’m expendable. I’m the guy in the episode who dies to prove how serious the situation is. I’ve gotta get outta here.

In Redshirts, Scalzi explored the lives of those red-shirted crewmen whose sole function seems to be waiting to be killed off on away missions, and quite successfully so, as Steven Silver observed:

Scalzi has taken the trope of the redshirt, the previously unseen character in an episode of Star Trek whose sole purpose is to die and has more fun with it than any author since Douglas Adams asked his audience to empathize with a doomed whale in The Hitchhikers Guide to the Galaxy. Dahl and his mates rapidly realize that while things aboard the [starship] Intrepid can appear normal, there are times when things go haywire, with the officers acting irrationally and overly heroic, and danger coming from all sides in some inane ways. They are guided in their investigations by Jenkins, a strange figure who skulks within the walls of the ship, reminiscent of Laszlo from the film Real Genius.

In fact, part of the fun is the variety of homages Scalzi includes to television and film, pointing out their cliches and inanities which are introduced not for any logical reason, but to provide a cliffhanger, much like Gwen DeMarco deploring that “This episode was badly written!” However, while others have pointed out the ridiculousness of the genre, Scalzi’s novel is not redundant, bringing its own loving parody to the unrealistic situations the crew finds themselves in and they struggle for life, knowing that some force, which Jenkins calls “The Narrative” has specifically targeted them.

The key to the novel’s success is that Scalzi isn’t attacking a genre that he doesn’t care about. He understands science fiction, in its written and cinematic form. He has worked on a television show and has some idea about what goes on behind the scenes and how decisions are made. He knows the history of the genre, not just the Star Trek’s and Isaac Asimovs, but the lesser known works. All of that gives Redshirts a heart that is missing from many parodies and satires where the authors sees the easy targets, but doesn’t actually understand their appeal. The situations and humor in Redshirts is the nudge-and-a-wink from a fellow conspirator, not the condescension of an outsider.

Not only does Redshirts work as a novel, but Scalzi is able to make the characters come alive. ...

Unfortunately, SF writer John Ringo churlishly tried to rain on Scalzi’s parade:

There’s nothing wrong with Scalzi’s writing. This is a reasonably good novel (from what I’ve heard) with no real SF or literary merit beyond being a reasonably good novel. But he’s been speaking truth to power about the degradation of women in SF along with other idiocracy and so he’s beloved by all the hasbeen liberal neurotics who control the Hugo voting and balloting. Look to many more in the future as long as he toes the Party line. Huzzah.

Coming from Ringo, this is laughable. Based on recommendations from usually trustworthy sources who share my affection for military SF, I gave Ringo a try a few years before Redshirts, but ended up tossing his books in the recycle bin. You see, Ringo is an awful writer in practically every sense of the word.

One meaning of awful is “very bad.” And Ringo is a very bad writer. He is a poor technician with minimal skills. His plots are tissue paper thin, his characterizations are wooden and shallow, his dialogue stilted, and the books (at least the several I read before giving up) are highly formulaic and predictable.

Another, and even more apt in the present case, definition of awful is “unpleasant.” I had the misfortune of first encountering Ringo in what has been aptly referred to as his OH JOHN RINGO NO series. His everyday books are pretty hard core violence porn even by military SF standards. But the Paladin of Shadows series1 adds sadistic sex porn to the mix. They’re replete with sadistic sex, bondage, underage sex.

I don’t share Scalzi’s politics. I learned conservative politics at the feet (well, from the books) of Russell Kirk, who once wrote that:

The moral imagination aspires to the apprehending of right order in the soul and right order in the commonwealth. ... It is the moral imagination which informs us concerning the dignity of human nature, which instructs us that we are more than naked apes. As Burke suggested in 1790, letters and learning are hollow if deprived of the moral imagination. And, as Burke suggested, the spirit of religion long sustained this moral imagination, along with a whole system of manners. Such imagination lacking, to quote another passage from Burke, we are cast forth “from this world of reason, and order, and peace, and virtue, and fruitful penitence, into the antagonist world of madness, discord, vice, confusion, and unavailing sorrow.”

Sadly, Ringo’s world is one of “madness, discord, vice, confusion, and unavailing sorrow” populated by “naked [and constantly rutting] apes.” It is utterly loathsome. And I’m betting Russell Kirk—not to mention Jim Kirk—would have thought so too.

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I got a nice shout out from Lauren Pringle of The Chancery Daily in her latest newsletter:

As anyone actively involved in corporate law and governance knows, Stephen Bainbridge is something of a "Stephen-on-the-spot" about spotting relevant interesting issues as they arise in our sphere. While TCD generally runs a weekly or bi-weekly feature on Supreme Court arguments, our omission of such a feature in our March-due cadence came back to bite us, metaphorically speaking, when Professor Bainbridge highlighted one recent interesting oral argument in one of his awesome two-part series. We play a little catch up below, to add to what the professor has already noted about the interesting aspects of this pending matter.

She's referring to these posts:

Bainbridge on Corporations

Witmer v. Armistice Capital, LLC: Part 1

We normally think of insider trading law as a matter of federal securities law rather than state corporate law. And, today, that’s largely true…

Read more

2 months ago · Stephen Bainbridge

Bainbridge on Corporations

Witmer v. Armistice Capital, LLC: Part 2

In my prior post on Delaware Vice Chancellor’s opinion in Witmer v. Armistice Capital, LLC, I offered a comprehensive review of the facts and issues in the case, as well as a detailed discussion of Zurn’s analysis of the controlling shareholder issue…

Read more

2 months ago · Stephen Bainbridge

The “Most Ill-Considered” Corporate Law Legislation Keith Bishop has Ever Encountered

As regular readers know, Keith Bishop is my go-to-guy for all things California and Nevada corporate law. In his latest Substack post, Keith goes to town on a bill proposed by California Assembly Member Chris Rogers and Senator Mike McGuire.

Calcorporatelaw.com

California Bill Would Revoke All Powers, Privileges, and Capacities Previously Granted To "Corporations"

In a startingly move last month, California Assembly Member Chris Rogers and Senator Mike McGuire introduced a bill, AB 1984, that would revoke in their entirety “all powers, privileges, and capacities previously granted to corporations under the laws of the State of California…

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2 months ago · 1 like · Keith Paul Bishop

AB 1985 would revoke all powers, privileges, and capacities previously granted to California corporations — a category defined broadly to include LLCs, limited partnerships, LLPs, and nonprofits. It then purports to restore only those powers specifically enumerated in the Corporations Code, creating what Bishop calls “a complete and incoherent circle.”

The convoluted drafting has a clear purpose: stripping California business entities of their First Amendment rights to engage in “election activity” or “ballot issue activity,” presumably in response to Citizens United.

The bill includes a provision declaring that if any part of it is found unconstitutional, no prior corporate powers law shall be revived. The legislature expressly prefers that corporations hold no powers at all rather than have the ability to engage in electoral activity.

Bishop argues this creates an existential risk to California’s economy.

Go read the whole thing.

I am Reminded Of

The nonsensical AB 1985 reminds me of the only slightly less absurd Montana “Transparent Election Initiative,” about which I blogged back in August of last year:

In those posts, I discussed the dubious constitutionality of the initiative and the strong public policy arguments against it.

The Business of Cancer

Francine McKenna is posting a serious of guest columns on the economics of curing cancer. The latest is on the race to develop a blood test that will screen for 50+ types of cancer. Fascinating stuff:

The Dig

The business of cancer: The “gold rush” of liquid biopsies

This is the third guest column in our series on the business of cancer from Taayoo Murray, an award-winning writer based in New York City. She regularly covers health topics, primarily inequity in healthcare and issues in aging. Her work has been published in Mayo Clinic Press, Yahoo, Essence, Cancer Today, New York Amsterdam News and many others. Taayo…

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2 months ago · 4 likes · Taayoo Murray

Sullivan and Goldberg

Interesting podcast discussion between Andrew Sullivan and Jonah Goldberg:

The Weekly Dish

Jonah Goldberg On Conservatism, Blogging, Dogs

Jonah is a journalist, author, and podcaster. He spent two decades at National Review before joining The Dispatch, where he writes the G-File and hosts the Remnant podcast. He’s also a columnist for the LA Times, a commentator for CNN, and a senior fellow at the American Enterprise Institute. The author of…

Listen now

2 months ago · Andrew Sullivan

Scalzi Banned

For reasons I am unable to understand New Braunfels, TX has banned John Scalzi’s book Lock In (AMAZON LINK) from its school libraries. It’s not a particularly woke book. Indeed, to the contrary, one Amazon reviewer complains that “The protagonist is extremely privileged - which really lessens the perceived impact of what is a terrible disease.”

John notes:

1. On a personal level, I don’t expect this ban to move the needle much, positively or negatively, for sales of Lock In, which has been out for a dozen years now;

2. Please refrain from exclaiming “Having your book banned just means you’ll sell more!” or something similar in the comments. One, it’s absolutely not true for the vast majority of books that get banned; the usual result is a net loss for authors and publishers. Two, this is sort of comment that, however well-intentioned to be supportive, minimizes the seriousness of book banning as an intentional policy.

But if you want to oppose book banning and simultaneously support both John and myself, buy a copy through the Amazon link above. He’ll get a royalty and I’ll get an Amazon Associates commission. You’ll get what Publisher’s Weekly called “A smart, thoughtful near-future thriller.”

Win-win.

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The Why

Longtime readers of my old TypePad blog1 may recall that before COVID I was taking a series of online courses about Catholic Theology from the University of Notre Dame’s McGrath Institute for Church Life. I enjoyed those courses, but the technology they used back then was fairly primitive. It was mostly text-based. So I eventually pursued my interests in religious studies on my own.

Recently, however, my wife Helen expressed an interest in taking some courses on Catholic doctrine. So we checked ut the Notre Dame “STEP” courses. The technology seemed (and proved to be) much improved, using Zoom and much better interactive course websites. So for our first course we decided to start with something basic.

We chose “Foundations of Catholic Belief.” You couldn’t get much more basic than that. We’re in week 3 and it has been a very rewarding course. I strongly recommend it for online Catholic education.

This Week’s Assignments

We have an initial scriptural passage on which to meditate, a selection of readings from the Catechism of the Catholic Church, and three 20-minute video lectures (transcripts available). We then have two written assignments and an online Zoom discussion.2

This week, our topic is Christology.

This Week’s Discussion Response

The discussion prompt for this week asked us to consider several questions:

• Why was it worth the time and effort t[the Church spent] to develop such precise language about who Jesus is? How does this language enable a person to understand who Jesus Christ is, that he is not just a good person, or a good teacher?

When I kneel down and pray, who am I talking to? Christology gives me the answer. I am not talking to the ghost of a very holy man nor to a divine spirit who only seemed human, but to a real person who is simultaneously fully God and fully human.

That means my prayers aren’t going to an abstract cosmic force. Instead, they’re going to someone who has actually experienced hunger, grief, loneliness, temptation, and physical suffering. God knows what my life feels like from the inside.

In last Sunday’s Gospel (John 11:1-45), we are told that when Jesus saw Mary and Martha weeping about Lazarus’ death, “he became perturbed and deeply troubled.” So much so that he also wept.

In his sermon from last week, Bishop Robert Barron said that Jesus wept because he lost his friend Lazarus and because of his sympathy for those who were also grieving. But Barron says that Jesus was also weeping out of empathy for everyone who suffers when God acts in ways we don’t understand. The creator of the universe so identifies with our frustrations and sorrows and loss that he weeps with us.

Jesus can weep because he is fully human and so understands in his bones why we sorrow even though, like Martha and Mary, we believe in him and in the resurrection to come.

As such, when we go through pain—loss, illness, failure, loneliness—Christology tells us that God has already been there. Not as an observer watching from outside, but as someone who literally sweated blood in Gethsemane, felt abandoned on the Cross, and wept at a friend's tomb. Our suffering isn't foreign to God. He carried it himself. But that's only true if Christ is genuinely one Person who is genuinely human.

of course, the story doesn’t end with Jesus weeping. Jesus goes beyond mere sorrow. He raises Lazarus from the dead. No mere human could do that. Only God possess the power of life and death to that extent.

So this week’s STEP lesson was really well timed, because we can’t understand the story of Lazarus without understanding Christology.

This Week’s Assignment

We were asked to respond to this statement:

When Nestorius said that Jesus’ human and divine natures acted separately (that the divine nature did divine things and the human nature did human things), how was this answered by the councils of Ephesus and Chalcedon? Why was it important for the councils to correct this error and clarify understanding of the Incarnation?

The Council of Ephesus (431 AD) was called to evaluate the teachings of Nestorius, who was the Bishop of Constantinople. Nestorius, the Archbishop of Constantinople, taught that Jesus had both a divine nature and a human nature. So phrased, his teachings were orthodox. The trouble arose, however, because he described these two natures in a way that made it sound like Jesus was really two separate beings loosely stuck together, a divine Word of God sort of partnered with a human man named Jesus. He called this a union of dignity and authority rather than a deep, real, personal unity.

Nestorius also refused to call Mary the “Mother of God” (Theotokos), preferring “Mother of Christ” instead. His reasoning was that a human woman—Mary—couldn’t have given birth to God himself, only to the human Jesus.

The Church said no at Ephesus. Nestorius’ understanding gives us two Christs, not one. And if you have two Christs, you’ve lost the real meaning of the Incarnation; i.e., that God himself truly became human. Nestorius’ teaching was declared to be inconsistent with the Nicene Creed and, accordingly, condemned.

In one of his lectures this week, Professor Joshua McManaway explained that persistent disputes arose over how to interpret what the Council of Ephesus had wrought:

In light of this widespread confusion, the Council of Chalcedon clearly and dogmatically stated that Jesus Christ is one person, the person of the Word of God who has existed for all eternity, and who, because of the Incarnation, has two natures, both divine and human. He is therefore both fully God and fully man and the integrity of each nature is not cancelled out by the Incarnation. It is not as though the divinity of Jesus was diminished by His being human, nor was the reality of His human experience diminished by being divine. The two natures belong in their fullness to the person of the Word after the Incarnation.

The Council of Chalcedon (451 AD) was key because getting Christology wrong has huge consequences. If Christ isn’t truly one person—fully God and fully human at the same time—then his death and resurrection don’t have the salvific import orthodox Christianity claims. You’d essentially have a very holy man doing impressive things with divine backing, rather than God himself taking on flesh to rescue humanity from the inside.

A Side Note on the Trilemma

Thinking about Christology and Trinitarian doctrine always calls to my mind C.S.Lewis’ famous trilemma: “Either this man was, and is, the Son of God, or else a madman or something worse.” You thus cannot say “Christ was a human who was a great moral teacher,” for if he is not divine, he was either a liar or insane, neither of which are characteristics of great moral thinkers.

Conversely, if Christ also were not fully human, he could not have suffered and died for our sins. It is precisely because Jesus was human that his death atoned the sins of all humanity. “For if the blood of goats and bulls and the sprinkling of a heifer’s ashes can sanctify those who are defiled so that their flesh is cleansed, how much more will the blood of Christ, who through the eternal spirit offered himself unblemished to God, cleanse our consciences from dead works to worship the living God?” Hebrews 9:13-14.

Which loops us back to Christ’s divinity. After all, if Christ were not divine, Christianity would be saying that suffering of a human provided atonement for sin. Why then would not our own suffering do so?

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