Friday, December 30, 2011

Verizon Proves That Markets Still Work

Yeah, you'd better hear me now!

Verizon Wireless recently agitated hordes of customers by announcing plans to impose a $2.00 fee for single online or telephone payments.

Well, the thousands of customer complaints Verizon likely received has compelled the company to disconnect this fee plan.

This is an example of free-market capitalism at its finest. A company made a decision its customers didn't like; its customers expressed their outrage; and the company backed off. After all, Verizon bases its business on a series of voluntary transactions with its customers, and since those customers can switch providers with relative ease, Verizon needed to listen to them.

No government strong man was necessary to coerce Verizon's actions; it acted in its own interest, which happens to be satisfying its customers.

The article reporting on this story also reminds us that Bank of America customers pressured it into dropping plans to impose a $5.00 monthly debit card fee.

Long live the markets.

Ryan T. Darby practices law in San Diego. He happens to be an AT&T customer, but he's happy for all his Verizon friends, including his mom.

Thursday, December 22, 2011

Ayres & Edlin Tax Plan Would Drown Everyone on Board

Tax law professors Ian Ayres and Aaron Edlin recently wrote a New York Times op-ed outlining the most disturbing proposal that I've read in a long time: they advocate a 100 percent tax rate on all income that exceeds 36 times the median household income.

In 2006, the median American household income was $50,233. This proposal would therefore cap income for that year at $1,808,388–certainly no small chunk of change. However, the Ayres-Edlin proposal is an absolutely terrible idea that would cost us economic growth, tax revenue, and economic liberty.

First, history teaches us that excessive taxation actually lowers tax revenue. A cursory glance at income tax statistics shows that federal tax revenue was higher in the 1980s than the 1970s. This is interesting because (1) the 1970s was a highly inflationary era, and (2) the Reagan tax cuts slashed the top marginal rate from 70 percent to as low as 28 percent.

Of course, this shouldn't be surprising. Punitive taxation disincentivizes economic productivity; indeed, common sense dictates that people will not work for nothing, as the Ayres-Edlin proposal requires after an individual (or business) earns more than their income limit. Additionally, punitive tax rates incentivize various forms of evasion (some legal, some not). Even if you're a statist, shouldn't you want the rich to earn a whole lot of money that the government can tax? Incentivizing productivity yields higher economic growth and larger tax returns, so everyone wins by allowing "the one percent" to do their damn jobs.

The other problem with the proposal is the arrogance that Ayres and Edlin–or anyone else–has either the clairvoyance or the moral imperative to dictate how much money is too much for one person to earn. Wealth accrues in a market economy through a multitude of individual, voluntary transactions. To chide someone for being too successful strikes me as jealousy wrapped in an egalitarian facade.

I can't conclude without pointing out the absurdity of their statement that "The sky is the limit for the rich as long as the 'rising tide lifts all boats.'" Ayres and Edlin, of course, are borrowing President Kennedy's justification for slashing the top marginal rates. President Kennedy knew that everyone would benefit by allowing the rich to keep–and invest–more of their income. Perhaps, then, a more appropriate metaphor for Ayres and Edlin is that a sinking ship drowns everyone on board.

Tuesday, November 15, 2011

Occupy Wall Street: Rebels without a Case

A New York judge upheld the constitutionality of Mayor Bloomberg's decision to prevent Occupy Wall Street protestors from sleeping in the Zuccotti Park.

And frankly, it wasn't even a close call.

The Supreme Court has made it quite clear that laws prohibiting sleeping in public spaces apply just as equally to protestors as they do to everyone else. In Clark v. Community for Creative Non-Violence, the Court held that the National Park Service could enforce such a law against homeless advocates who wished to sleep on the Washington Mall.

Specifically: "Damage to the parks, as well as their partial inaccessibility to other members of the public, can as easily result from camping by demonstrators as by nondemonstrators. In neither case must the government tolerate it." The Court resolved that this ruling is "a reaffirmation that reasonable time, place, or manner restrictions on expression are constitutionally acceptable."

The Court's rationale is very simple: protestors have to follow the same rules as everybody else. In this case, Occupy protestors have no more of a right to create a public health hazard than those who are legitimately homeless. Furthermore, Occupy Wall Street's argument is even weaker because Zuccotti Park is not public property; it is privately owned, and its owners wanted the protestors off their property.

The Occupy protests are a terrific distraction from the drudgeries of actually working for a living, but they don't have a legal leg to stand on.

Tuesday, October 11, 2011

Dear "Rich Kid for Redistribution": Just shut up & give it away.

This girl epitomizes the problem with so many wealthy statists (and those who pretend to be, as I'm guessing is the case here).

She purportedly deplores the fact that she has money, and she chooses to do...well, nothing about it. If she really wants her money to go to the less fortunate, then why doesn't she just give it away? There are plenty of worthy charities out there that are far more efficient than the government.

Alas, I suspect she prefers to use her money as a status symbol, just like the people she's protesting. "Look at me! I have money that I don't need, so I want to help the less fortunate! Look at what a wonderful person I am!"

Oh, just shut up and give it away, already.

Thursday, September 15, 2011

...and she wants to control MORE of our tax dollars?

Sen. Dianne Feinstein (D-CA) announced that her campaign war chest was "wiped out" by treasurer Kinde Durkee. Ms. Durkee faces federal charges for allegedly plundering hundreds of thousands—if not millions—of dollars from Democratic candidates throughout California.

Oddly enough, Sen. Feinstein does not know how much money Ms. Durkee stole from her. Why not? Because, according to
Feinstein said she and her campaign staff have been unable to access all their bank records at this point because Durkee alone controlled access to the account, which has made it difficult for them to assess how much money is gone.
Seriously? What kind of fool provides a third party with sole, unchecked access to a financial account?

Oh, wait—the same fools responsible for America's $14.7 trillion national debt.

And if Sen. Feinstein is this irresponsible with her own campaign's money, then what makes us think she is responsible with ours? 

Ryan T. Darby practices law in San Diego. He has yet to find himself locked out of any of his bank accounts.

Thursday, August 18, 2011

Law School Blame Game Heads East

I previously blogged about an unemployed lawyer's regrettable lawsuit against Thomas Jefferson School of Law. The angry alumnus alleged that the law school misled her into believing her odds of post-graduate employment were stronger than they actually were, even though a simple glance at the school's bar passage rates should have easily dispelled her purported misconception.

Well, it looks like the Law School Blame Game is hitting the road, as alumni from New York Law School and Cooley Law School have filed similar complaints against their respective alma maters. Cooley, meanwhile, appears to be striking back by filing a defamation action against Kurzon Strauss, the law firm representing the unemployed alums.

The story is pretty simple at the end of the day: the plaintiffs applied to law school without performing their due diligence, graduated in the middle of a bad economy, want to blame someone, and decided their law schools are easy (and wealthy) enough targets. Bad times often popularize bad ideas, so I really hope for the sake of the legal profession that this one doesn't catch on.

Ryan T. Darby practices law in San Diego, California. He received an outstanding legal education and has no plans of suing his alma mater.

Friday, July 15, 2011

Casey Anthony: Deranged enough to create Reasonable Doubt?

I didn't monitor the Casey Anthony trial because, well, I have my own cases to worry about. However, the surprise acquittal has provoked numerous friends to solicit my lawyerly opinion on the matter, so I decided to weigh the evidence in an effort to autopsy the prosecution's failed case. Maybe conducting some independent research free from the TV talking heads could give me a fresh, untainted perspective.

But, before I provide my opinion, two caveats:

1. I am a civil attorney, not a criminal attorney; and

2. Not observing the trial largely precludes me from critiquing the attorneys' performances.

That being said, I think the evidence establishes beyond a reasonable doubt that Casey Anthony killed her daughter. Why? Because there is just no reasonable explanation why Ms. Anthony would place duct tape over her daughter's mouth, either pre- or post-mortem.

For the sake of discussion, let's remove the duct tape from the fact pattern. Do children accidentally drown? Yes. Is it plausible that a demonstrably deranged mother may attempt to cover up an accidental drowning out of fear? I suppose. But deranged must a person be in order to duct tape the child's mouth either before or after the drowning? Implausibly deranged, in my opinion. So implausibly, in fact, to dispel reasonable doubt.

The jurors, however, seem to have misunderstood the concept of reasonable doubt. Juror Jennifer Ford stated that the jurors were "sick to [their] stomachs" and "crying, and not just the women." Such a visceral reaction tells me they knew with a strong degree of certainty that Ms. Anthony was guilty, but they didn't think that certainty amounted to reasonable doubt.

Ms. Ford continued: "If you're going to charge someone with murder, don't you have to know how they killed someone or why they might have killed someone, or have something where, when, why, how?" Well, no, you don't. The jury instructions do not require jurors to answer those questions because it's possible to find guilt beyond a reasonable doubt without them.

This misunderstanding most likely originated with the best of intentions. I can just imagine (and this is pure speculation, mind you) some juror stoically declaring to his or her colleagues that this case is too important to screw up, so they had to make damn sure that no reasonable doubt existed in their minds. Unfortunately, this problem psyched them out: they were so scared of screwing up that they confused "reasonable doubt" with "any reason to doubt." The latter standard is completely unmanageable, because it is almost always possible to find some reason to doubt a case. Applying it would make it virtually impossible to ever secure a conviction.

And so, back to the doubt that must have crept into the jurors minds: that Casey Anthony is such a bad person that she might not have killed her daughter. Now, there is a paradox that will haunt criminal law students and prospective prosecutors for generations to come.

Ryan T. Darby practices civil litigation in San Diego, CA.

Wednesday, June 22, 2011

Bush's "Decision Points": in Defense of a Presidency

Love him or hate him, President George W. Bush's memoirs have an important place in the historical record and are a must-read for those who wish to understand the tumultuous past decade of American history.

Decision Points is best understood as President Bush's defense of his presidency. Bush obviously writes it from a biased, self-interested viewpoint. This is not an objective narrative, but that hardly renders it immaterial. Critics have made strong arguments against his presidency; this is President Bush's rebuttal.

I am pleased to say that I walked away with a superior understanding of some of the decisions he made. For example, I was surprised to learn that Bush attempted to convince Louisiana Gov. Kathleen Blanco to concede control of the Hurricane Katrina response in the aftermath of Hurricane Katrina, but Blanco adamantly refused to do so. Similarly, I had never really considered that Bush's decision not to immediately visit the Katrina disaster zone was due to the fact that emergency responders did not want him there, since his presence would divert resources from the response.

I was also fascinated by the behind-the-scenes look at his time in office. His narrative of the hours following the Sept. 11 attacks was insightful and dramatic, and his account of the various Iraq deliberations was also interesting. The details of his secret Thanksgiving trip to Baghdad following the invasion are quite riveting.

Of course, the book does not lack flaws. I looked forward to his thoughts on the Valerie Plame incident, but no mention was made. He also tried to defend his credentials as a fiscal conservative which is, well, an argument that he just can't win. Similarly, his defense of his Medicare expansion made me want to bang my head into the wall.

Despite these flaws, I really do classify the book as a must-read for anyone seeking a better understanding of the Bush presidency. You don't need to take his word as Gospel truth, but it certainly is worth more than a grain of salt.

Thursday, June 2, 2011

In Defense of Thomas Jefferson School of Law

Recent graduates from Thomas Jefferson School of Law ("TJSL") filed a class action lawsuit against their alma mater, alleging that it intentionally misrepresents its employment figures. This—the plaintiffs allege—caused them to attend TJSL, which they now regret because their career prospects are dim (also TJSL's fault, they allege).

Note to the plaintiffs: dragging your alma mater's name through the mud is no way to advance your career prospects; it actually harms the value of your degree. I'm just sayin'.

Now, looking at the merits, it seems to me that the plaintiffs face an uphill climb. Specifically, they may find it difficult to prove the following elements necessary for a successful intentional misrepresentation claim:
  1. that TJSL represented to the plaintiffs that an important fact was true, when it was actually false; and
  2. that the plaintiffs reasonably relied on TJSL's representation.
(1) It is unclear that TJSL falsely represented anything to the plaintiffs. Their primary contention appears to be that TJSL included non-lawyers in the employment data it submitted to U.S. News & World Report. This creates the illusion that 80 percent of its graduates become employed as lawyers within a few months of graduation, when in reality many found jobs in other fields.

This legerdemain may be misleading, but it is a common practice among law schools. The primary question is why it has taken U.S. News & World Report so long to close this gaping loophole.

Frankly, I do not see how a misrepresentation was made so long as TJSL provided data that conformed with U.S. News & World Report's loose standards, and so long as TJSL accurately reported this data to prospective students. Evidence that TJSL told prospective students that 80 percent of recent graduates become attorneys would, however, satisfy that element. We will see what comes out during discovery.

(2) It was not reasonable for the plaintiffs to rely upon TJSL's employment figures. Yes, the prospect of getting a job after graduation is important. However, it is bizarre to claim that this single data point controlled their decision to attend TJSL. Other factors, such as ranking, bar pass rate, location, professor quality, tuition/scholarships, and personal comfort seem to play larger roles.

However, one flagrant logical flaw probably defeats the whole claim. The complaint specifically alleges that more than 50 percent of TJSL graduates routinely fail the bar. Well, if that is the case, then why did the plaintiffs believe that 80 percent of TJSL alumni become attorneys within a few months of graduating?

Math may not be most attorneys' strong suit, but it does not take a rocket scientist to conclude that this is impossible. Maybe poor logical reasoning explains why the plaintiffs have not found attorney positions.

In conclusion, I don't think the plaintiffs have a very good case. It is unclear that TJSL misrepresented any facts to the plaintiffs, and even if it did, other factors made it unreasonable for plaintiffs to base their decision to attend TJSL upon that representation.

There is no doubt that TJSL—among other law schools—exposed a flaw in the U.S. News & World Report rankings. Fortunately, U.S. News has closed that loophole. There is no doubt that the job market out there is difficult, but TJSL is not to blame for that. As an East Village resident, I think the new TJSL campus adds a lot to my community. I just hope its reputation—which I can tell it is working hard to improve—is not harmed by what appears to be a meritless lawsuit.

Thursday, April 7, 2011

Leland Yee & the Hypocrisy of Campaign Finance Reform

A number of San Francisco mayoral candidates have side-stepped local campaign finance regulations by spending enormous sums of money in earlier, less regulated races. For example, the Chronicle reports that Sen. Leland Yee spent $1.1 million in a non-competitive re-election campaign, including $471,000 to his campaign strategist—15 times that strategist's going rate.

The logical explanation, of course, is that Sen. Yee took advantage of less stringent state fundraising regulations to create name identification and pre-pay his consultant.

Curiously, Sen. Yee supports regulating campaign finance, according to I wonder what he had to say when he spoke at a campaign finance reform rally a couple of years ago.

Now, I am not accusing Sen. Yee of breaking the law. However, this provides a couple of lessons:

Lesson #1: Candidates who support campaign finance regulations often find ways to dodge them; and

Lesson #2: Money will always find a way into politics so long as the government picks economic winners and losers.

Wednesday, March 30, 2011

Keep Central Committee Elections on the Primary Ballot

Originally posted at San Diego Rostra.

San Diego County Registrar Deborah Seiler’s well intentioned proposal to remove central committee elections from primary ballots would centralize political power in the hands of party insiders, and ultimately undermine the power of the average voter to select candidates for the general election.

I have interacted with Ms. Seiler in the past while monitoring the ballot counting process, so I can attest that she operates the Registrar in a professional and transparent manner. I am certain she is acting in good faith, and she raises a valid point that the current system subsidizes internal party elections.

However, the passage of Proposition 14—the open primary initiative—has already thrown the nominating process into disarray. Prop 14 provides that the top two vote recipients in the primary—regardless of their party affiliations—will appear in the general election. In other words, voters in the general election may have to “choose” between two candidates from the same party. Predictably, the parties are scrambling to devise internal means of selecting their candidates.

The California Republican Party, for example, voted at its recent convention to conduct an internal mail-in primary. This pie-in-the-sky idea will likely prove that political parties lack the expertise, manpower, and funding to conduct large-scale elections. It is far more likely that Republicans will scrap this unrealistic plan, and instead consolidate the endorsement power among a relatively small number of party insiders.

When push comes to shove, county central committee members will likely play a strong—if not dominating—role in selecting the party’s official nominees prior to the primary. This vests central committees with a tremendous new power, so voters have a strong interest in (finally) paying attention to their central committee elections.

Unfortunately, Ms. Seiler’s proposal would largely remove voters’ ability to elect their central committee representatives. The same concerns plaguing the party endorsement of primary nominees also apply here: do we choose an impractical mail-in process, or vest party insiders with even greater power? Neither option sounds very good, but the mail-in election is too impractical.

Therefore, under Prop 14 and the Seiler proposal, party insiders would most likely select central committee members, and those central committee members would then select their parties’ official primary nominees. This would afford voters no direct control over which candidate receives their party’s endorsement (and monetary support) heading into the primary.

Furthermore, political parties are not like the Kiwanis Club (as Ms. Seiler asserted), at least according to the Supreme Court. It has held that a party privately conducting a primary election may not discriminate against voters based upon race. See Terry v. Adams, 345 U.S. 461 (1953). The Court found that the political party performs a public function, so the 15th Amendment (and presumably other restrictions upon government) apply to private political parties.

I commend Ms. Seiler’s commitment to efficiency, and I invite her to propose a cost sharing plan that keeps party elections on the primary ballot. But ultimately, political parties play an integral role in our political system. They will adapt to any attempt to marginalize them, most likely at the expense of the average voter’s power and influence. Our electoral system thrives on transparency, so removing party elections from the public eye would be a step in the wrong direction.

Thursday, March 10, 2011

Kehoe's Bill Infringes Upon Landlord Rights

Coming soon to an apartment building near you!
Sen. Christine Kehoe (D-San Diego) proposed a bill prohibiting California landlords from preventing their tenants from posting political signs on their windows. The Legislature should reject this proposal because it improperly infringes landlords' rights to regulate the outward appearance of their properties.

Sen. Kehoe's bill—SB 337—would add the following provision to the California Civil Code:

1940.4. (a) A landlord shall not prohibit a tenant from posting
or displaying noncommercial signs, posters, flags, or banners on or
within any portion of a dwelling unit leased by the tenant, unless
the posting or display would violate a local, state, or federal law.
(b) The Legislature finds and declares that this section is
declaratory of existing law.

(emphasis added).

First of all, the italicized language makes it clear that this bill applies to far more than simple political signs. This would allow tenants to post eyesores that have absolutely nothing to do with politics, and could be as obscene as existing law permits. It is fine, of course, for homeowners to post whatever they wish on their windows; they enjoy dominion over their property, and should be allowed to make whatever use of their homes they deem fit.

Renters, however, do not own the homes in which they reside—their landlords obviously do. Property ownership comes at great cost: down payments, mortgages, property taxes, property insurance, maintenance, and (for rental property) tenant relations. The end result of this cost is the owner's right to look at his property and say, "That's mine."

SB 337 infringes upon this notion by stripping the owner's dominion of the appearance of his property. We lawyers are taught to view property not as a lump sum, but as a "bundle of sticks." For example, landlords initially possess all of their properties' "sticks," but then they transfer some of those sticks to their tenants. The landlord may own the tenant's rental unit, but the landlord has also granted the tenant specific interests in the unit, particularly involving control over the unit. That is why landlords do not object to tenants using their units however they deem fit, generally so long as they do not cause damage or disturb their neighbors.

However, tenants' property interests are generally limited to the confines of their units; existing law allows landlords to retain control over the appearance of their buildings. SB 337, however, will deprive landlords of this control. It will essentially transfer part of landlords' property interests to their tenants, without compensation. This creates a catch-22 for landlords: they may attempt to recoup this loss by charging additional rent, but tenant-created eyesores makes the property less appealing and depresses rent levels.

Furthermore, I am not really going into the notion of free speech because the First Amendment applies to the government, not landlords. Tenants have the right to express themselves however they wish, but the First Amendment does not entitle them to use their landlords' property to do so.

Ultimately, this is a question of property rights. Tenants who wish the right to express themselves by posting on their windows ought to purchase their own homes. Until then, they should keep in mind that someone else owns the windows they are using.

Ryan T. Darby is a renter, but he doesn't cause too much trouble for his landlord. He's also a staunch defender of property rights and a landlord-tenant attorney.

Wednesday, February 9, 2011

"One company should not have the power to" . . . defend itself?

The San Diego City Council recently demonstrated good sense in repealing its prior ordinance that by many accounts would have essentially banned the construction of new Walmarts within city limits.

Walmart responded to the initial ordinance by funding a massive signature-gathering campaign to place the issue before the voters in a special election. The 7-1 majority favoring the repeal largely cited the hefty $3.4 million the cash-strapped City would need to provide in order to fund the election.

Price tag aside, the repeal is good news because government has no business picking economic winners and losers.

Well, Sen. Juan Vargas (D-San Diego) doesn't see it this way. He intends to introduce a bill before the state legislature imposing the same regulations as the repealed San Diego ordinance. Vargas was motivated in large part by Walmart's decision to defend itself:

What I did not like was that one company and one company alone had the power to scare the City Council into changing its mind and that is what happened. That's not right. That's not the way government should work. One company should not have the power to do that.

Excuse me? The City deliberately targets Walmart, and Vargas is stunned when Walmart defends itself?

This extends well beyond the Walmart debate, and questions the proper role of government in economic affairs. Free marketeers like me believe the government should act as an impartial referee by upholding contracts and protecting private property rights. Unfortunately, others believe the government should prefer "the little guy" over "the rich and powerful," and then take from or otherwise hinder "the rich and powerful" for the benefit of "the little guy." And government routinely does so.

And then, folks like Vargas are appalled that "the rich and powerful" defend themselves.

It's also utterly naive to believe "the little guy" is impoverished, since in this situation he is actually the labor unions who inject millions of dollars into the political process. No surprise that Vargas neglects to criticize them, however.

Look—if you don't like the proliferation of private capital in electoral politics, then examine the underlying motive: a government mindset that prefers some economic actors over others. Remove this element from governance, and there will be no motive to inject money into the political process. Until then, don't be surprised to see these economic actors—"the rich and powerful" (i.e., Walmart) and "the little guy" (i.e., the labor unions)—spend fortunes trying to influence politics.

Hat tip to San Diego News Room contributor Michael M. Rosen.

Monday, January 24, 2011

Judge Prohibits Disbarred Lawyer from Using "J.D." Suffix

U.S. District Court Judge Patricia Gaughan has upheld an Ohio Supreme Court decision prohibiting a disbarred attorney from attaching the "J.D." suffix to his name. The former attorney, Bruce Andrew Brown, argues—and I tend to agree—that this violates his First Amendment and due process rights.

Yes, the state bar associations play an important role in protecting the general public from incompetent and/or unethical lawyers, but the fact of the matter is that Brown is, in fact, a J.D. The Ohio Bar may legally determine whether Brown can practice law, but neither it nor the judiciary can take away the Juris Doctor he earned from Columbia Law School in 1984—no more than a court can revoke a legitimately earned Bachelor of Arts.

Brown's alleged use of the "J.D." to mislead others into believing he is a lawyer may be grounds for some legal action, whether punitive or prospective, but broadly banning an individual from claiming title to a degree he legitimately earned is entirely inappropriate. How we describe ourselves to the rest of the world is a matter of free speech, and the courts generally employ strict scrutiny when analyzing a restriction on free speech. The Supreme Court has also found that commercial speech that is false or misleading is not protected by the First Amendment, but (1) Brown is, in fact, a J.D.; and (2) a blanket restriction prohibiting Brown from using suffixing "J.D." to his name is not narrowly tailored to serve the government's interest, as is required by this test.

I really hope this decision is reversed on appeal.

Wednesday, January 5, 2011

9th Circuit Rules Against the Mt. Soledad Cross

The Mount Soledad War Memorial
The 9th Circuit has ruled that the cross-adorned World War II memorial atop Mt. Soledad violates the Establishment Clause because it may be construed as a government endorsement of religion.

This ruling demonstrates how far our judiciary has wandered from how the framing generation's understanding of the Establishment Clause. As I recently explained following the 10th Circuit's similar treatment of a Utah memorial honoring fallen state troopers, the Establishment Clause's text plainly prohibits the federal establishment of a government religion. Renowned Establishment Clause scholar Dr. John Eastman's "We are a Religious People, Whose Institutions Presuppose a Supreme Being" documents the Framers' attitudes toward the role of religion in public life, and reaches the following conclusion:

The Establishment Clause barred the federal government from providing tax support to one religious sect to the exclusion of all others, or from mandating adherence to such a nationally 'established' religion, but id did not prohibit the federal government from providing aid to religion generally, or even from issuing public non-sectarian religious proclamations.

The judiciary has, unfortunately, manipulated the Establishment Clause far beyond these limits. One critical prong of the courts' convoluted Establishment Clause inquiry is whether "it would be objectively reasonable for the government action to be construed as sending primarily a message of either endorsement or disapproval of religion." Vernon v. City of Los Angeles, 27 F. 3d 1385, 1398 (9th Cir. 1994).

The 9th Circuit used this Endorsement Test to conclude:

The use of such a distinctively Christian symbol to honor all veterans sends a strong message of endorsement and exclusion. It suggests that the government is so connected to a particular religion that it treats that religion’s symbolism as its own, as universal . . . . By claiming to honor all service members with a symbol that is intrinsically connected to a particular religion, the government sends an implicit message “to nonadherents that they are outsiders, not full members of the political community . . . ."

Cases such as these use terms like suggest and implicit quite a bit in order to make groundless assertions that have no bearing on reality. For the record: the federal government does not treat Christian symbolism as its own, and non-Christians are, in fact, full members of the political community. I would like to think that further clarifications would prevent our judiciary from confusing potential perceptions of discrimination with the sort of concrete religious establishments the Establishment Clause is crafted to prevent.

Regardless, this and the earlier 10th Circuit holding should give the Supreme Court ample opportunity to restore its Establishment Clause jurisprudence to one that interprets it as it was written, and manages not to order the closure of benevolent World War II memorials.