Author Archives: Countrylawyer

Ringling Bros. Republican and Democrat

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Or, why the last thing you’ll learn about watching the forthcoming “debates” will be anything of substance about either candidate.

What will happen will be that mainstream media folks, pretty much every one of which is in the tank for the incumbent, will lob meatballs to him and will expend enormous effort to prevent the challenger from addressing any of the administration’s failures over the past four years.  I’ll go ahead and hazard a list of topics that will either not be mentioned at all, or if they are mentioned, will be brought up in a fashion that presupposes the validity of Dear Leader’s favorite pastime of it’s-someone-else’s-fault (e.g. “Mr. President, as we’re all aware the former Republican administration is ultimately the cause of why gasoline prices are almost $4.00 per gallon over much of the country; could you elaborate about to what extent Dick Cheney was in the pocket of the oil industry all along?”)  So here goes my humble little list:

  1. The 43 consecutive months that nominal unemployment has exceeded 8%;
  2. The 2009 promise that with the $780+ billion “stimulus” program unemployment would not crack 9% and by now would be back down in the 5-6% range;
  3. The U-6 unemployment measure, which includes the involuntarily under-employed, and which is in the 14% range, where it has been for months;
  4. The current labor force participation rate of roughly 63%, the lowest it’s been in 35-plus years;
  5. The assertion by a sitting president that he has the unilateral authority to order the targeted killing of even American citizens overseas; 
  6. The failure to secure the Benghazi consulate notwithstanding six months of known deteriorating security conditions and repeated requests by the (now-murdered) ambassador to Libya to beef up security at Benghazi;
  7. The crony capitalism of “loans” such as the $535 million to Solyndra, owned by major campaign bundlers for the administration and its party, to whose equity in the company the administration’s Department of Energy subordinated the taxpayers’ “loan,” which has now gone bad to the tune of over a half-billion dollars;
  8. The administration’s implementing, without the knowledge or consent of the government of a neighboring sovereign state, a program of intentionally permitting illegal sales of firearms, with the expectation and even desire that they be used by drug cartels within that neighboring state, but without making any arrangements to track those weapons past the common border;
  9. The administration’s claim that it has the right and power to compel private citizens to purchase any product or service the federal government decrees, through the device of a tax to penalize the failure to make the purchase;
  10. The wholesale selective enforcement of laws, such as granting “exemptions” from the new healthcare law to . . . surprise! wealthy entities in political allies’ home districts (e.g. the numerous swanky restaurants and bars in Nancy Pelosi’s district which have received ObamaCare waivers from Kathleen Sibelius’s office);
  11. The announcement that the administration will simply refuse to enforce those provisions of duly adopted statutes which might, theoretically, have the result of depressing the numbers of anticipated political supporters (e.g. refusing to enforce immigration laws against entire classes of illegal immigrants);
  12. Any inquiry into what, precisely, the president meant when he asked Vladimir Putin to go easy on him until after the election, after which time he would have “more flexibility” to accommodate Putin’s wishes;
  13. Any inquiry into why Iran has been permitted to continue its nuclear weapons development when its announced intention is to obliterate a United States ally (Israel) from the map;
  14. Whether there is a point at which the Federal Reserve ought to discontinue infinite expansion of the money supply by unlimited purchases of Treasury paper, and what are the administration’s plans to deal with the inflation that is headed this way now;
  15. What exactly are the environmental reasons that the Keystone XL pipeline ought not be constructed, when that portion of the country is already a spider-web of long-distance oil and gas pipelines;
  16. Why the federal government has refused to issue any new drilling permits in the Gulf of Mexico for over two years now, notwithstanding a court’s order that it do so; or,
  17. Why the federal government has gone over three years now without a federal budget.

Of course, one could go on almost indefinitely.  No.  What we’re going to hear about is how the wife of a fellow who didn’t even ever work for a steel company that was sold by Bain Capital after Mitt Romney had left active management in that company, but rather who was a union organizer sent to organize the workers at the company, had a wife who had her own medical insurance through her own employer and who well after Bain sold the corporation her husband did not work for was diagnosed with late-stage cancer and died less than four weeks later.  Of course, that’s not how it will be presented.  We can anticipate questions like this:  “Governor Romney, exactly why did you kill the wife of that man who used to work for your company?”

Knowing he was in for that sort of treatment, why in the world would Mitt Romney, or anyone else in his position, agree to a “debate” that is to be “moderated” by people who consider themselves unpaid operatives for the other side?  That’s just crazy.  Irrespective of which side one supports, that’s just a kooky tactical decision.  Poor coaching.

One has to wonder what would have been the upshot of this response by the Romney campaign:  “We will agree to debate the opposing ticket upon terms and in a format identical to the Lincoln-Douglas debates.”  I mean, if it was good enough for the consensus greatest president we’ve ever had (barring possibly Washington), certainly it’s good enough for this fellow, even if Dear Leader doesn’t really consider Lincoln his equal.  Lincoln and Douglas debated on six or seven occasions; the first speaker had 60 minutes, the response was 90, and the reply 30.  If you really wanted to dumb it down shorten it for the attention span of several generations raised on television, you could cut it to 30, 40, and 10.  That would still give one hour and twenty minutes of solid, substantive debate.  Debate that could not be papered over with a Telepromptr (in fact one could ban them from the format), debate that could not be run past a focus group.

And I think the format is appropriate to the times.  Lincoln and Douglas were debating first and foremost the subject of slavery and its extension into areas of the country outside its origins.  This was, to put it mildly, a subject that went to the very heart of what the United States was supposed to be about.  It really, honestly did raise implications for whether Americans would “nobly save, or meanly lose, the last, best hope of the earth.” 

This administration and its allies in Congress have proposed a fundamental alteration of the relationship between citizen and federal government.  No longer is the citizen to be a free agent who merely hires government to accomplish certain ends which he cannot attend to himself.  He is now to be a client of the state in the most intimate details of his physical existence.  Citizens no more have any colorable claim to sovereignty left, now that the government can by virtue of adopting a “tax” force the citizen to do whatever government decides he needs to do for his own good or that of his fellow citizens.  The citizen is now merely a marker, a bargaining chip, a utensil in the pursuit of whatever a governing faction happens at that moment to deem to be “social justice” or whatever label one wishes to slap on it.

Every human requires clothing (I’ve put on my pants quite a bit more frequently than I’ve dropped them at the doctor’s); clothing is therefore self-evidently a human right.  Textiles and clothing are therefore extremely important industries.  Congress decides that, in order to ensure that the American textile and clothing industries can operate at economical levels of turnover, every American must buy 15 new “eligible shirts” per year from — oh, let’s define this in language you might find in the Internal Revenue Code — “qualifying domestic clothing providers,” and then Congress defines what is an “eligible shirt” and what a “qualifying domestic clothing provider.”  It reserves to the Secretary of HHS the right to grant waivers to manufacturers of clothing as to what is or is not an “eligible shirt,” or to waive some portion or all of the number of shirts any individual or group must purchase.  But wait!  People need shoes, too.  And so on.

People need personal transportation (99% of the population needs to get from point A to point B a helluva lot more urgently than they need a health insurance policy).  The United States happens to own an automobile manufacturer that’s already gone bankrupt.  The administration stole that company from its secured creditors and handed it over to its labor union supporters.  It can’t very well steal it again.  The government’s hopelessly upside-down in its “investment.”  It will never get well unless the stock price rises, which will never happen until the company begins consistently to operate at a profit, which will not happen so long as people are free to choose a competing product.  Think about it:  Congress has established a principle, and the Supreme Court has blessed it, under which each American can be forced to buy a “qualifying domestic automotive product” from Government Motors ever two or three years, under penalty of, say, a $30,000 per year surtax for every year beyond two or three since the last “qualifying purchase.”  And of course government can now simply decree that since it’s really swell to have such things in a car, and for some people actually necessary, every “qualifying domestic automotive product” must have certain features, like, oh, say, heads-up display, or all-wheel drive, or a minimum of X cubic feet of storage space, or premium sound packages, or whatever.

The above situation is now perfectly possible, and legal.  There is no way, simply no honest way, to argue that this relationship of the state to the citizen, as such and upon the mere premise of existence (and not as the pursuer of a particular livelihood, e.g. merchant seaman), is not new.  The American people deserve to hear both sides of the argument about why this new state of affairs is or is not desirable.  If life in a European-style top-down world is truly preferable to what we’ve known for 220-plus years, then make the case for it.  We’ll listen, no kidding; some of us will even agree with you, whichever side you argue.  Americans can listen and decide for themselves (subject to any tax Congress may decide to impose for voting the wrong way).

And that’s just not going to happen in tomorrow’s debate or any other.  It will not happen because those “moderating” the “debate” have determined that the question should not be put to us.

Clairvoyant I am Not, But Still

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. . . I swear I didn’t see an advance copy of this post, about the “culture of cheating” at Stuyvesant High School before I put up that last post.  I ran across this post on plagiarism at Amherst this morning, and had thought about doing yet another update to add the link, but seeing two such posts on the same day seemed to suggest it might merit its own post, in a lions-and-tigers-and-bears-oh-my sort of way. Hence:

Let’s be honest about what we’re talking about here.  Pretty much every last one of the students at Stuyvesant would be a legitimate contender for valedictorian at almost any other high school in the country.  You don’t just get randomly zoned for Stuyvesant.  It’s one of those things on your high school transcript that admissions officials at every half-way decent college in the western world will recognize.  No kidding; I’d wager that a graduate could apply to Balliol and whoever it is who decides such things would know what Stuyvesant means on that applicant’s grade sheet.

So when cheating is simply viewed as a fact of life by such a large proportion of the students, that’s a problem.  These are the kids who oughtn’t need to cheat, or feel the need to cheat.  They’re the kids who are supposedly bright enough to understand on a moral plane why cheating is wrong, why it is corrosive to the very system that they are relying on to give them that leg up.  They’re supposed to understand on some level that if word gets around that cheating is how it’s done at Stuyvesant, suddenly that magical name to obtain the lustre of which they and/or their parents have sacrified so much in terms of time, money, and energy . . . becomes nothing more valuable than a high school diploma from P.S. Whatever-the-Hell.

Apparently they’re not.  Or rather, they’ve illustrated once more, for even the slow-witted out there, that “education” and morality are entirely severable concepts.  I mean, if “education” were enough in itself to guarantee a world of amity, progress, civility, and elevation, then we’d never have had a Nazi Germany.  The national socialists would never have been voted into power by the people who were at the time probably the most over-educated, over-cultured crew on the planet.

But in truth the rot evidenced by this article goes even deeper.  One of the reasons, the many reasons, why the Soviet Union fell apart was the universality of “tukhta,” sometimes spelled “tufta.”  Navy veterans will recognize it as the systematized practice of “gun-decking.”  Solzhentisyn, Shalamov, Dolgun, and Bardach, and the others cited in those men’s books, all contain descriptions of the practice, or illustrations of it, or recount themselves grasping at it to “fulfill the norm” and so avoid starvation and death (it’s not a coincidence, surely, that almost all the survivors’ memoirs are written by prisoners who managed to spend large portions of their sentences in the camps working in the medical wards). 

Under tukhta as practiced, a work gang was supposed to produce so-and-so-many cubic meters of timber per day, or however many cubic meters of ore at the pithead, or X-hundred bricks, or whatever else.  The daily norm was set by a person known as the “norm setter” and a norm setter was the difference between life and death.  They usually opted for hopelessly optimistic norms, which meant the prisoners had no realistic way to fulfill them, which under the system introduced into the camps by Naftaly Frenkel produced a concomitant reduction in caloric intake for the work crew falling short.  So what to do?  One stole from other work crews (especially the Article 58s); one bribed the tally-man (shades of the Banana Boat Song); one just falsified the documents.  And so one’s own crew was credited with a fulfilled norm or even better, an over-fulfilled norm which meant “Stakhanovite rations” for the fortunates.  As for the crews whose output got stolen?  In the language of Gulag, “You die today; I’ll die tomorrow.”  But wait, what happens when the timber, several thousand cubic meters short, is sent downstream to the mill and they’ve got papers showing all that timber that’s simply not floating out in the river?  Answer:  More tukhta.  And when it comes time to load it onto freight cars or barges?  The same.  And on and on and on.  A huge proportion of the Soviet population learned to survive on tukhta.  It wasn’t that they perceived it as a response to a “system intended to grind them down,” as the poor little students at Stuyvesant complain.  Successfully practicing tukhta was in the most literal way imaginable the difference between surviving your “tenner” or your “quarter,” or ending up as a corpse forever frozen in the permafrost of the Kolyma basin, or in some clearing in the taiga.

What tukhta meant was that in the Soviet Union, you couldn’t trust anything or anyone, beyond what you actually could see with your own eyes and touch with your own hands.  At all.  If I contract for so-and-so many tons of sand suitable for mixing the cement on my project site, how can I be sure my vendor does not deliver me something that is 30% cinders, ground glass, or something else?  How do I know that my foreman has not been paid to turn a blind eye as the defective material is mixed up into something I think is “cement” but is really just holding the concrete blocks apart . . . for the moment.  Come to think of it, how do I know the building I live in was not built to such “specifications”? 

There’s a telling scene in MiG Pilot, the story of Lt. Belenko, who flew his MiG-25 to Japan in the 1970s.  He was quite literally a poster boy for the Soviet Air Force, one of their elite.  Had he stayed in and not fallen afoul of some political trap, he likely would have worn multiple stars. There’s a description of the apartment assigned to him.  Neither the building nor his apartment would have passed electrical or plumbing codes in any western country, in any jurisdiction.  Its masonry would never have been accepted by any sober architect and engineer.  And that’s what they had available for the cream of their crop.

The Soviet Union literally fell apart, physically and politically.  Think about it:  A sovereign nation, without a single foreign troop on its soil, possessed of the world’s second most-powerful military apparatus, and with hordes of sympathizers in the opposing camp, hangs it up, shuts out the lights, and goes home because the train just won’t move any more.  A huge, an enormous part of the explanation lies in the practice and internalization of tukhta by the general population.

Within the past several months it has come to light that LIBOR, one of the world’s most-frequently relied upon benchmark interest rates, has been thoroughly cooked for years now.  In fact, it turns out that our current Treasury Secretary (you may know him as TurboTax Tim), when he was president of the New York Federal Reserve Bank, knew that LIBOR was being gamed, and said nothing about it.  Nothing.

China’s economy is showing signs of unravelling.  Over at Zero Hedge they’s got a disturbing post on the phenomenon of phantom collateral for massive bank loans.  Either the stuff just doesn’t exist, or the would-be secured creditor discovers that its collateral has been hypothecated eleven times already.  Those loans are now bad loans.

And all of this, every damned bit of it, is nothing more than adults spinning out the same dynamics we see going on at and discussed in reference to Stuyvesant High School.  As a final bit of encouragement, may I add that these children, for whom cheating is simply a tool in the box to be deployed or not according to whatever calculus they find expedient, are among the ones who one day will occupy positions that will affect each and every one of us others?  At some point will the rest of us become like the dog in the fable, that watched as its fellows gobbled up his master’s meat and finally decided that if the meat was gone in any event he might as well get his?

A Bit of Healthy Bigotry

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By which is not meant what most Americans assume it to be, viz. racism (or as the British would term it, racialism).  Racism is only a small subset of bigotry (go into an Irish pub and propose God Save the Queen! and see what happens next).  “Much may be made of a Scotsman, if he be caught young,” is another relatively famous example of it, but who calls Dr. Johnson a bigot?

I mean here to speak a word in favor of a bit of healthy bigotry, of the sort which begins with an assumption that whatever the speaker is (as self-defined), is absolutely the bee’s knees, and then draws from that the implication that every member of that identity group has an iron-clad duty to live up to the ideal.  The condition of “superior” is inseparable from the obligation actually to be, you know, superior.  One may fall short in one’s duty, and if one does one merits a double measure of shame, not only because whatever one did fell short, but because one’s falling short demeaned and damaged all other members of the identity group.  This sort of bigotry begets traditions like that of the U.S. Marines; show the yellow streak and not only are you a coward, but you have introduced cowardice into “my Marine Corps” (and it’s always the speaker’s Marine Corps, as if he personally bore the sole burden of maintaining its reputation for integrity, bravery, and sacrifice).

I will suggest that such an outlook is not an attitude to discourage.

Yet we do discourage it nowadays.  We have adopted as one of the few articles of public faith the dogma that No One is Better Than Anyone Else, a proposition which a moment’s reflection ought to reveal to be what P. G. Wodehouse would call unmitigated apple-sauce.  Get caught cheating in school?  It’s OK; no doubt you were feeling over-pressured.  Update (01 Oct 12; did I nail this or what?):  Amherst professor resigns after getting-caught red-handed (but notice all the exculpatory nonsense smeared throughout the article).  Get caught stealing $1.2 billion in investors’ money, like Jon Corzine and his firm did?  But he’s so smart, you see, and he does after all provide so much valuable support to the Messiah president, so we won’t investigate too hard.  Torch the neighborhood because a couple of bad cops beat a criminal rap when they roughed up a druggie?  We understand your pain; here’s a few hundred million dollars to funnel into our pet contractors’ pockets (whence it comes right back in the form of campaign contributions, all distributed to the right folks).  Cut your 16 year-old daughter’s throat and watch her bleed out because she was foolish enough to get caught slipping out to see her boyfriend, who just didn’t have the right kind of prayer rug?  We respect your religious scruples.

Gone are the days of General Napier.  He was governor-general in India, and one of the quaint local practices he took a shine against was suttee.  You remember, don’t you?  That’s that Old Time Religion where when the husband dies you tie the wife up and burn her on the pyre as well.  Nowadays the Deep Thinkers (indebted to Thos. Sowell for the phrase) assure us that such things are just their faith and heritage and besides “Racism!!”  Genl Napier had a different take.  Some of the locals protested that it was their custom.  Replied Napier, “Be it so. This burning of widows is your custom; prepare the funeral pile. But my nation has also a custom. When men burn women alive we hang them, and confiscate all their property. My carpenters shall therefore erect gibbets on which to hang all concerned when the widow is consumed. Let us all act according to national customs.”

And so today, September 30, we remember the birth of Lt. Col. Alfred D. Wintle, MC, of the British army in both wars.  He rejoiced that he had been born an Englishmen and not, by way of comparison and contrast, “a chimpanzee, a flea, a Frenchman, or a German.”  He wangled his way into the army underage, and served at the front until severely wounded in 1917.  Told his war was over, he replied, “It may have escaped your attention, but there is no fighting to be done in England.”  And so back he went, without a kneecap, several fingers, and an eye, doing himself proudly enough that he won the Military Cross.  Coming across a severely wounded Trooper Cedric Mays, Wintle ordered him, “Stop dying at once and when you get up, get your bloody hair cut.”   Mays did so and lived to be 95.

Early in the Second War he finagled his way back into uniform and, convinced he had to get to the front in France, attempted to hijack the airplane of an air commodore, from the commodore in person.  Was arrested and tried at the Tower for, among other charges, treason and threatening the air commodore (he’d told him he deserved to be shot, and proposed to perform that office himself).  At his trial he not only didn’t deny having told the air commodore he ought to be shot, but produced and read aloud a list of others who merited similar attentions.  The charges were all dismissed.  Wintle finally did made it back to France where he was captured, and insisted on inspecting his German guard, whom he roundly ticked off for their slovenly bearing and poor turn-out.  Did the same thing when he was finally imprisoned by the Vichy regime.  He told the prison guards that he was going to escape (which he did), and that if any one of them was man enough they’d join him.  According to later accounts all 200-plus guards at the prison later joined the Resistance.

Wintle held that a gentleman never left the house without an umbrella, and a true gentleman never unfurled his.  His own, never unfurled, contained a note wrapped up in it that informed the reader that it had been stolen from Col. A. D. Wintle.

Wintle was a bigot.  But observe.  Once the landlord of a posh-ish London watering hole went to eject, upon entry, a West Indian laborer . . . a black patron, in plain language, who had mistaken the place for an ordinary pub.  [Jim Crow may have had a Southern accent, children, but he got around quite bit back in the day.]  As he was hustling the unfortunate towards the door, a voice from across the room barked out, “That gentleman is a friend of mine. I have been expecting him. Kindly show him to my table.”  Unable to refuse, the landlord showed the no doubt by this time thoroughly confused worker to Wintle’s table, where Wintle ordered them a glass of wine each, upon finishing which each went on his way.

Maybe what we need is a touch of that old-fashioned healthy bigotry.  The all-join-hands-in-a-circle approach doesn’t seem to be doing too well.

Fannie Mae Needs a New Day Job

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Within the past few days I’ve come to understand something more about exactly how Fannie Mae managed to blow a whacking great hole in the American housing market and crash the world’s largest economy into the bargain.

Our firm has run a title company since the mid-1960s. Knock on wood, but not a single policy we’ve ever written has had to pay or defend a claim. A large measure of that is attributable to the fact that we’ve always done our searching in-house, and for 38 or so years we had a title searcher with a nearly photographic memory for deeds, titles, and people. She also had the kind of personality that is nearly impervious to tedium. A further reason is that our philosophy has always been that land titles must be like Caesar’s wife; “Oh let’s get it closed and we can take care of that later,” as a point of departure has been a non-starter in our office (and yes, it’s lost us a lot of business over the years, but either you do your job right or you’re an ass-hat). All of which is to say that, very humbly, I submit that we in our office know just a bit about land titles in our state and how to convey them correctly so everyone knows what he’s getting and gets what he’s been wanting. 

A few years ago two things happened, more or less simultaneously. 

The first things was that some bureaucrat at HUD who had obviously never practiced law – and more to the point, never searched a title anywhere outside the cookie-cutter subdivisions of northern Virginia – decided that he knew how to set up and close a residential real estate transaction better than the people who’d been doing it for several generations. The upshot was new regulations for closing real estate transactions subject to the Real Estate Settlement Procedures Act (RESPA), which if anything made the process less transparent for the borrower/buyer, provided an incentive for everyone to mark up his prices and generally put his thumb on the scale, and slowed down the loan approval process measurably. Whoever this pin-head of a government employee was required a bank to promise a hard number for “title services” within 72 hours of loan application. “Title services” was to include title examination, title insurance, closing agent’s fees, document preparation, and several other things that should never have been lumped together, and which in fact the “old” Form HUD-1 – the settlement statement – broke out, so that you could actually tell, you know, what you were paying for. The new HUD-1 required it all to be lumped in together and forbade anyone to break it out. 

Now, maybe you can reliably get a good title examination back on a cookie-cutter subdivision in northern Virginia in less than 72 hours. Folks, outside those sorts of environments that just doesn’t happen. You get all manner of cock-eyed legal descriptions, estates that either were never opened or nor properly administered (like having a personal representative without authority executing a deed), multiple chains of title that split, join, and split again, minors’ interests, gores in multi-tract parcels, unrecorded conveyances . . . just all kinds of stuff that can take days to do, if you do the work correctly. And of course until you know what’s out there you can’t quote a fee for what it’s going to cost. You just can’t assume that every title search will take your searcher 45 minutes. But that’s what the new RESPA rules required the bank to state to the borrower. Oh, if you discovered something in the search you could drag the borrower back to get a new good faith estimate, but then your borrower begins to get cold feet. So the situation HUD created was to pit lenders against title service providers, with the lenders having an incentive to low-ball and lean on the service providers to cut every corner they could to get it done as cheaply as possible. How’s that likely to work out? 

The second thing that happened was that our three senior staffers took one look at the new RESPA regulations and retired. As in we all attended a seminar on the new rules and within three weeks we had their letters on our desks. They took 45, 40, and 38 years experience with our firm out the door and left us majorly under-staffed. 

So we quit doing RESPA closings for a while until the dust settled (HUD kept changing the RESPA rules and the HUD-1 rules for months after they were supposed to have taken effect). But now we’re doing them again and finding out what’s changed while we were out. 

Fannie Mae, the clowns who brought you the sub-prime crisis, have a set of uniform instruments which it promulgates and requires be used for loan transactions in which it is buying or guaranteeing the paper. Those instruments vary by state, but the whole idea is that someone can buy several billion dollars of bond backed by thousands of these notes and deeds of trust (or mortgages, if your state rolls that way), and every note and security document in the package that backs those bonds will grant to the beneficiary of the note and security documents rights which are in all material respects uniform, no matter in which state the land happens to lie. Makes a great deal of sense, and in fact if were it not for the uniform instruments, the secondary market for residential loans would not exist, meaning much, much, much less home mortgage lending could occur. The secondary market is, after all, a good part of how the money gets into the system. 

Life is simple as long as you have married couples who both own the property and who both sign the note. Drop out one or the other and things get interesting. 

The instructions for our state-specific Fannie Mae uniform instrument set out those local alterations to the form document that must be made or that may be made, each depending on the precise circumstances. F’rinstance, if the trustee(s) of a “living trust” is to be the property owner, Fannie Mae wants certain portions of the document phrased certain ways. Again, makes sense. But their instructions contain no guidance at all to the situation in which both spouses are owners, but only one is the borrower (happens all the time, too). 

The instructions do contain language that applies when you have only one borrower spouse and one owner spouse (presumably the same spouse, but that’s not necessarily the case, is it?). The instructions tell you to provide that the non-debtor spouse “signs as Borrower solely for the purpose of waiving dower rights without personal obligation for payment of any sums secured by this Security Instrument.” There are several things wrong there. For starts, one does not “sign as Borrower” unless one is actually the borrower (I cannot sign “as” the president of a corporation if I am actually the janitor). Secondly, the uniform instrument contains a raft of affirmative obligations, many of them requiring financial imposition, but which are completely extrinsic to and unrelated to paying “any sums secured by” the instrument. The only sums “secured by” the instrument are those payable under the promissory note. Thus, the non-debtor spouse who “signs as Borrower” is in fact signing up for all manner of personal obligation. You as a closing agent dare not tell that non-debtor spouse that “Oh, honey, you’re not signing up to pay any money; they just need you to sign here to make sure the bank gets a good lien on the property.” Can you say, “consumer fraud,” anyone? 

But the most hilarious thing about this form document and its instructions is that “dower” as an estate in property was abolished in our state . . . in the spring of 1977. And by the way, males had “curtesy,” not “dower.” We now have “marital rights” in property, including especially property used as one’s principal residence, but those rights are very much distinct from the rights an owner has in that property (e.g., an owner has her own homestead exemption; a non-owner has only the inchoate right to her husband’s homestead exemption, should he die first). 

So if you have a non-debtor owner spouse sign the Fannie Mae uniform instrument, using the language they provide, you’ve just created an invalid lien on the property, and one which can’t be insured. The non-debtor spouse may have waived, for example, the right to claim the deceased spouse’s homestead exemption in the property, and waived the right to an elective share in the property on the first spouse’s death, and waived any right to participate in the property’s division in divorce (that, too, is a marital right against the property). But actual ownership as a cotenant far exceeds any of those inchoate interests – the tenant by the entireties owns an undivided whole interest in the entire property. 

So Fannie is only about 35 years behind the power curve, and of course does not understand the distinction between marital rights and ownership rights, it seems, at all. 

Is anyone still wondering how these muddle-headed imbeciles managed to get the housing market so wrong?

 

A Whole Lot of (Very Expensive) Chopping; Chips? Not so Much

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So seems to be the conclusions suggested by the charts produced by the Cato Institute here. 

I find these charts tantalizing on several levels.  One thing I’d like to know is whether the SAT scores were normed to account for the test having been (famously) dumbed down some years ago.  If they have not been, would the trend lines be even as level as they are?  Would they not much more likely have a downward lurch to them?  I of course took the “old” test more years ago than I care to admit any more, but from what little I’ve seen, heard, and read of the “new” test, the raw scores are not equivalent.

Secondly, ought “scores” to be rising at all?  I mean, you can only teach a given person so much in the setting of a classroom, and the fact that you might be able to get Little Johnny over the hump if you exposed him to the full force of one-on-one or tiny group tutoring really doesn’t tell you a whole lot about what you can reasonably expect from him in a classroom, from a teacher with a room full of other kids also to attend to.  The SAT scores are also way too much subject to being gamed.  Back when I took the test, if you wanted a prep course and you didn’t live in a larger city, you were pretty much out of luck.  Nowadays, when an SAT prep course is only a few clicks away on the internet, and huge amounts of money and energy are spent reading the tests’ tea leaves, to say that SAT scores are flat may only be telling us that we’ve run up against the upper limit on what can be done with gamesmanship.  Subject to the self-selection bias noted in the article, every test cohort will have a statistical distribution of ability, and that distribution will be reflected in the test scores.

The national whatever-it-is scores are the ones which suggest the more important questions.  Why are the scores largely flat?  Are the scores flat because the complexity of the test has been adjusted upward?  Is this national level of aggregation even useful?  How about breaking the scores down by some of other benchmarks: class size, median teacher salary (expressed relative to local median income), school size, gross population of local school district, local median income as a proportion of national median income, number of post-bachelor’s hours of course work per teacher, percentage of classroom teachers as proportion of total school system non-maintenance employment, amount of school funds spent on marquee sports (football, baseball, softball, basketball, soccer) as proportion of overall school system spending?

I’d also like to figure out a way to put a reliable metric on some of the intangibles, like average minutes per week spent learning about global warming, or “diversity,” or “inclusiveness,” or “community service.”  It seems to this lay person that with all the other nonsense that teachers are being required to teach these days, instead of their field — I mean, what the hell does “diversity” have to do with chemistry?  Either a student can calculate the amount of heat that will be released in a particular reaction or he can’t.  Might it not bear investigating?  Subject/verb agreement is not inclusive or exclusive, and in any event the solution of an integral function has zero to do with whether this year’s arctic ice cap is changing faster or slower than the antarctic ice cap.  Picking up litter, or scrubbing graffiti out of housing project stairwells, or raking some little old lady’s front yard are all laudable tasks, but how do they teach a student to distinguish between correlation and causation?

What these charts do convey, however, is the negative conclusion that net marginal return on additional gross spending per pupil is a number soberingly close to zero.  Reasonable minds can and will differ as to why the two trend lines diverge so dramatically, but what we can’t dispute is that shovelling additional dollars willy-nilly into the system is simply not moving measurable outcomes.

On a related note, these charts do jibe with the results of a study that was done in Germany some years ago (saw a report of it in the FAZ, but didn’t print it off).  What they found was that all the traditional nostrums, all the way from per-pupil spending to teacher salary to class size had no measurable effect on student outcomes.  What they did end up recommending was delaying the triage of the German education system for a year or two, and keep all three strata of students together longer.

Funeral Procession

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I don’t care who you are; this is funny. 

Happy Birthday Jerry Clower, wherever you are, born on this date in 1926.

Other than the fact that he’s side-splitting funny, one of the more impressive things about Jerry was he never used a four-letter word.  You can play Jerry Clower for your youngest children and never have to worry about what they’re going to hear.  And they’ll learn a thing or several about their native language.

Among his classic lines (too many to count) are the famous, “Well shoot up here ‘mongst us.  One of us has got to have some relief!”

A repeated theme in Clower’s work (and I think it does deserve to be considered as a body of work, every bit as much as that of some Hollywood buffoon) is the puncturing of conceit and pretense.  He tells the story of some television show that was filming at one of the grand Southern estates.  One of the fruity little Hollywood types makes the mistake of effusing over the flower beds, and says to the tiny little ancient black woman, on the staff there and to whom he addresses himself, that it looks as if “some fairy had waved a magic wand over this place” to produce all those wonderful flowers etc. etc. etc.  The woman says in fact it was even so, “an’ it had a hoe on the end of it!”  Or the time it come twelve inches or so of rain in 24 hours and they had them a flood.  All the hot-snot McMansion dwellers (although Clower was spared having to see those sprout all over the face of his beloved land) were just outraged that their houses had flooded!!  Floods, you see, are for poor people, people who live down by the levee, or in bottom land, or beside drainage ditches.  Sure enough the television talking heads were out in force, shoving microphones in the outraged faces of the Poor Victims and inquiring what had “Caused the Flood.”  Well, the Corps (or as Dear Leader would presumably say it, the “corpse”) of Engineers caused it with their dam; or the sport fishermen who wouldn’t let them lower the water enough; or all those greedy corporations.  Etc., in other words.  And then they made the mistake of asking some well-dressed boy standing by, not realizing that he was NOKD (Not Our Kind, Dear).  What caused the flood?  “I’ll tell what caused this flood:  Twelve inches of rain in 24 hours caused this flood an’ if we ever get that kinda rain again, we gon’ have us another flood.”

We need more Jerry Clowers in this ol’ world.  One wasn’t enough.

Sea Power and the Influence of Mahan, 1890-2012

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27 September 1840: Alfred Thayer Mahan is born. Graduates from the Naval Academy and becomes a career officer, but never is truly enamored of the sea. Eventually gets orders for the U.S. Naval War College, in preparation for which duty station he begins to contemplate Sea Power. And a pattern emerges in his head, which he then begins to pursue in a systematic, academic fashion. He digs deeper and begins to write.

The pattern Mahan noticed is one that the British semi-intuitively, semi-institutionally understood, although in typical British fashion no one had ever actually sat down and demonstrated its truth. What the British understood and Mahan laid out on paper is the fact that throughout history, when nations have got cross-ways and one had control of the seas and the other not, the outcome always seemed to favor that power which controlled the seas. Why? 

In 1890 he begins to publish the results of his research, beginning with a book with a rather bulky but self-explanatory title: The Influence of Sea Power Upon History, 1660 – 1783. A little over a century, a long, miserable century later, we might add to its title (in the style Mahan himself would have recognized), “; or, American Sea Captain Lays Powder Trail to Magazine and Blows up World”. But wait, the gentle reader murmurs, I’ve never heard of this sea dog or his book. Sort of like the newspaper reporter who couldn’t believe Nixon won in 1972 because, “No one I know voted for him.” But most people have never heard of the benzene ring, either. 

What made Mahan so influential was not what he wrote – the British, as mentioned, had been practicing his precepts as part of their military-cultural DNA for generations. What made Mahan influential was who read him. More to the point, which one specific person read him: a gentleman who, except for his garish moustache and withered left arm, would not have stood out in a crowd . . . well, apart from the Pickelhaube. Wilhelm II of Germany bit down hard on Mahan’s argument and in a case of confirmation bias if ever there was such, found in it a theoretical justification for what he admitted (to the shame of his ministers) he’d wanted ever since he was a child: a nice big shiny battle fleet, just like his grandmother Victoria’s. 

The problem was that Wilhelm was in a position to do something about it, and in a textbook illustration of what happens when the wrong two people get put in a room together, Wilhelm and Alfred Tirpitz (the “von” was added only later), who rose to the top of the Kaiserliche Marine in 1897, brought out the worst in each other and Mahan’s ideas were the glue that held them together. Wilhelm wanted a battle fleet to steam over to visit the relatives. Tirpitz wanted a battle fleet because . . . ummmm, because in building a battle fleet he will cement his position in the hierarchy of the German navy, and transform it from the bastard idiot step-sister of the Army into something that was . . . well, in point of fact, that was both a strategic and a tactical problem that Tirpitz never really successfully addressed. A recent biography of him paints a fairly unflattering picture of a bureaucrat’s bureaucrat, maneuvering, back-biting, side-stepping, and intriguing his way around in the circular logic that is the species’s hallmark: I must be master of the Kaiserliche Marine because Germany needs a battle fleet (Mahan hath said) and I must build it; the battle fleet must be built and continually expanded because without building the battle fleet I will have no navy to master. 

Why, you ask, is all this relevant? It is relevant because of what it did to British foreign policy during the not-quite 25 years from 1890 to 1914. As late as 1895 and the start of the third and last Salisbury government, Britain still proudly pursued her Splendid Isolation. In a famous formulation, she had no friends or enemies, but only interests, which she pursued at her discretion. “Fog in Channel; Continent Cut Off” read a much-quote headline in The Times. To the extent that Britain looked favorably on anyone, Germany would be it. Their ruling houses were closely connected, their commercial interests in friendly competition, their overseas merchants respectable. And the Germans had kicked the ever-loving snot out of England’s hereditary enemy, France, as recently as 1871. 

Wilhelm’s Kruger Telegram of 1896 was a belch in chapel that rattled the windows all the way up in the clerestory. Wilhelm sent congratulations to the Boers for having fended off the Jamison Raid by themselves, “without the assistance of friendly powers,” thus implying that Germany would have felt herself such a power. Although Britain was profoundly embarrassed by the raid, and in fact had no direct hand in its planning or execution – it was one of the last great and pure filibustering expeditions – it was launched from British territory, British citizens put it together, and it caused a ruckus in what was, after all, part of the British Empire. Wilhelm’s gratuitously intermeddling, and in a manner which strongly implied less than hearty goodwill towards Blighty, introduced an element into relations theretofore missing. 

Tirpitz’s Navy Law of 1898, providing for the construction of a German blue-water battle fleet, changed the direction of relations between the two countries. Even more importantly, the Second Navy Law of 1900, cobbled together by Tirpitz more or less in direct response to the frictions the Boer War generated, was pretty much a direct and explicit challenge to British naval supremacy. For quite a few years Britain had maintained an official policy that her fleet should be superior to the world’s next two most-powerful navies combined. Wilhelm and Tirpitz and their political allies changed all that. 

“All that” changed because naval supremacy was to the British not just a matter of keeping up with the Joneses (or the Hohenzollerns, or the Habsburgs, or the Romanovs, or the Meiji). It really, honestly, no kidding was an issue of life or death to their empire. You can ignore a puffing and strutting Kaiser, especially when doesn’t have a combat fleet to speak of. As was famously said of the fleet (I think it was in connection with the 1897 Diamond Jubilee naval review), all one need do was open the sea-cocks on those capital ships and within a few hours the British Empire would dissolve. Challenge her at sea, in other words, and all other bets were off. 

All bets were suddenly off. By 1904 Britain had squared matters with France, in Africa and in the Mediterranean. Later things went so far that Britain denuded her Mediterranean fleet of its most powerful units to bring them home, and France shifted her major naval power to the inland sea. In other words, each put vital sea lines of communication and supply in the effective guardianship of the other. To put some historical perspective on this, England and France had been at each other’s throats since at least the 1340s (the Crimean War was a brief and, as one looking back from 1895 would have thought, transitory exception). The Kaiserliche Marine was the proximate cause of an about-face in nearly seven centuries of mutual hostility. When HMS Dreadnought hit the water in 1906, the race was well and truly on. Britain and Germany just came right on out and admitted that each was building against the other. 

Britain and France sought out each other, each to assist in their respective protection against Germany. Britain even snuggled up with the Tsar, much to the outrage of the ruling Liberals’ constituents who wanted no truck with tyranny. The financial stresses of the naval arms race brought about the “People’s Budget” crisis of 1909 in Britain, and the following constitutional crisis of 1910-11, which resulted in the emasculation of the House of Lords as an active participant in British government. 

By 1910 Germany was encircled in fact and not just in the Kaiser’s periodic fulminations. 

In point of fact it was the building of the German battle fleet (which a few hours’ contemplation of a chart of the North Sea could – and did – reveal to the thoughtful examiner to be without strategic use or even function, Mahan’s “fleet in being” concept notwithstanding) which prompted the creation of one side of those alliances which ensured that a major blow-up in Eastern Europe would not be contained within the Balkans or wherever else; that it would spread to Western Europe; and, that – critically, from the perspective of the war’s duration and strategic development – it would involve Britain and her fleet. 

In September, 1914 the Germans were stopped at the Marne, and they were stopped, just barely, because the left flank of the French army was not in the air, but was tethered, however imperfectly, to the British Expeditionary Force and the remnants of its six decimated, dog-tired divisions of “Old Contemptibles” (itself an expression playing on what the Germans had intended a slur on Britain’s “contemptible” little army; the Germans just never did get what Americans of that generation knew as moxy).

 The war was not to be won on the six-week timetable envisioned by Count von Schlieffen. It was not, in fact, to be won by the Germans at all. Long wars produce results “fundamental and astounding” (to borrow Lincoln’s description from his Second Inaugural) that short wars do not. The Great War ushered in the most calamitous century of human history thus far. Our present century may yet make up the difference; we’re not even 14 years into it, after all. But the fact of strategic stalemate on the Western Front, a fact created by Britain’s belligerence, was the cauldron from which spilled revolution, fratricide, genocide, famines on untold scales, and glimpses into the wickedness of human nature which really I think we’d have been better off not being vouchsafed. Some things it’s better not to know are there, however much you may suspect them. 

Irony of ironies, it was the British fleet which starved Germany into submission in the end. Her armies were falling back, true, in part because of American manpower pouring into France at the rate of a quarter-million untrained Doughboys a month (that sealift itself a product of mastery of the oceans). But they were not broken by any means, and it was only the infection of defeatism permeating the army, as well as simple human hunger for something other than turnips (part of what stopped Ludendorff’s spring, 1918 offensives was the ordinary soldiers’ stopping to eat, just to get a damned bite of real food in the captured Allied positions after months of ersatz this-that-and-the-other, all with a good dollop of turnip and sawdust mixed in), that lead the generals to tell the Kaiser in early November, 1918 that they could no longer guarantee the army’s loyalty. In addition to their own suffering, lack of supplies, lack of food, that defeatism was in no small measure a function of the soldiers’ knowing what was going on at home. Their families were starving, literally starving to death by the tens of thousands a year. 

They starved because Britain had command of the seas. Just like Alfred Thayer Mahan, born on this date in 1840, would have predicted. 

All of which has to make Mahan one of the most influential single individuals in modern human history, easily on par with Marx, Einstein, or Darwin. Were it not for the turmoils unleashed by Mahan’s most unfortunate fan-boy, Marx’s ideas would likely never have got a trial run. Einstein’s insights into the nature of matter would have likely remained the stuff of laboratory technicians (no Manhattan Project without a target for the bomb, eh wot?). Darwin’s insight into the biological aspects of the human species would compete with a commonly accepted understanding of human moral nature not forever poisoned by the knowledge of what we humans did to each other over the course of a century that by rights should have seen material and moral progress limited only by the 24 hours in each day. 

For a tremendously good read on Mahan’s legacy, I can’t recommend any better than Robert K. Massie’s Dreadnought: Britain, Germany, and the Coming of the Great War.

 

26 September 1918

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The Meuse-Argonne offensive begins.  In which the American high command singularly fails to distinguish itself.  Not apparently having learned much at all from the doings at Belleau Wood, the Army feeds men in, and feeds men in, and feeds men in, to assault carefully prepared positions, with inadequate fire support, poor communications, and scandalously poor staff work.  The result is America’s bloodiest battle, in terms of total dead and wounded over the weeks that it lasted. 

The French on the American right offered essentially no help.  They’d been ground down by the four years’ fighting and were just content to let someone else do the dying for a while.  In fact the whole offensive really didn’t accomplish much.  The German lines were not irretrievably broken until very nearly the end of the war, and they fed next to no reinforcements into the battle.  The troops on the ground just kept killing Americans, and dying in their turn, as long as they could.  Those same troops would not have been  sent elsewhere because that would have opened the German front at that location, so the offensive can’t even make that claim to relevance.  No:  What happened there was a helluva lot of American soldiers got killed for pretty much nothing at all.

We did get Alvin York’s story out of it, however, but that doesn’t seem like much to brag about.  On the less-edifying end of the scale is the story of the Black troops who were fed, poorly armed and nearly untrained, into the fight on the American left.  This was the segregated Army at its worst, and as usual it was the grunt on the ground who took the hit.

The story of the battle is extremely well-told here.