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Remembering James H. Wolff

Memorial Day Weekend, 2015:– I wish to honor the memory of a naval veteran who survived the Civil War.  Before you sigh and roll your eyes, please note that — my foreign birth notwithstanding — I do understand the difference between Veterans Day, when we celebrate all who served, and Memorial Day, when we commemorate those who fell. But in view of the fact that the man I am honoring enlisted at well below the minimum recruitment age, I suspect that my bending the rules would have met with his approval.


This year marks the 150th anniversary of the decommissioning of USS Minnesota and of the Massachusetts Legislature enacting “An Act Forbidding Unjust Discrimination on Account of Color or Race,” which served as a model for the first federal Civil Rights Act. There is a connection between the warship and the statute, and the connection’s name was James H. Wolff.

James H. Wolff, Esq.

James H. Wolff, Esq.

Wolff was just 14 when he enlisted in the US Navy at the outbreak of the Civil War. Born to free parents in New Hampshire, he must have known that by volunteering to fight the Slave Power he was at risk of losing both his liberty and his life. Live free or die were the conditions of his daily life, not simply a motto.

He was aboard Minnesota when she bombarded the Confederates into surrender at Fort Hatteras, and when she became a stationary target for enemy fire after running aground early in the Battle of Hampton Roads. Three of her crew died in that engagement.

Wolff survived the battle and the rest of the war, and went on to practice law in Massachusetts.  Twenty years after the war’s end and the passage of the Massachusetts anti-discrimination act, Wolff represented the plaintiff in a case that tested the statute’s limits and led to its expansion.  His client in that 1885 case, Edward E. Brown, also happened to be his law partner. Together with attorney Edwin Garrison Walker, Wolff and Brown established the state’s first Black law firm. It was a firm with a mission.

After the decision of the Supreme Court of the United States in the Civil Rights Cases, 109 U.S. 3 (1883) that Congress lacked the constitutional authority to prohibit private discrimination (effectively neutralizing the federal Civil Rights Act) Wolff and his partners helped lead the campaign for stronger state-level legislation in Massachusetts. One element of that campaign took the form of a lawsuit against a Boston skating rink that refused to sell tickets to people of color. Brown was a plaintiff, and Wolff his attorney. They won.

Coordinating the case and legislative effort to enforce and amend the 1865 law was the Wendell Phillips Club, which functioned as a sort of precursor to the NAACP, bringing together business owners, ministers, and lawyers in the cause of civil rights.  Walker, Wolff, and Brown were at the forefront, litigating and lobbying for liberty pro bono publico while somehow bringing in enough billable work to pay the bills and raise their families (both of Wolff’s sons followed him into the law, by the way).

For a fuller account of the case, see my article “The Genesis of the Black Law Firm in Massachusetts,” Massachusetts Legal History 5 (1999).  Not quite everything ever published is available online, it seems, so if you would like a copy, email your request to peter@petervickery.com.

In the meantime, please devote a few moments of thought to James H. Wolff.  An exemplar of physical and moral courage, he is worthy of remembrance.

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Presto! Delusionary Zoning, Part III

In the manner of the conjurer pulling a rabbit from his hat, Amherst’s Planning Board has produced something of a surprise for Town Meeting.

Because Amherst’s current affordable-housing mandate has failed to generate any affordable housing during its 10 years of existence (see Vox Vickery passim), the Planning Board drafted a longer, more complex version. The avowed purpose of the new version is to encourage the development of new affordable homes. Now, with that purpose in mind, try to synthesize both clauses of the following sentence uttered by the chair of said board on the subject of its last-minute motion to radically amend its own proposal: “I think it may have the effect of damp[en]ing development, but it does meet the town’s express charge to us to come up with something better.”

So dampening development of affordable housing = better affordable housing bylaw. Got it?

What exactly will have this effect (i.e. dampening development)? The Planning Board’s motion to designed to assuage the fears of those who think the new bylaw will lead to too much density in residential neighborhoods. They do want affordable housing, you see. Just not in residential neighborhoods.

Rather than bleat on about this any more* I shall simply draw your attention to this article in last October’s Atlantic Monthly: Why Middle Class Americans Can’t Afford To Live in Liberal Cities.

* Final Cato the Elder ceterum-censeo style bleat: Please repeal this wretched bylaw root and branch before it kills any more potential home-building in Amherst.

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It’s Cromwell’s Birthday, Cry If You Want To

cromwell statue

Oliver Cromwell: Advocate of Plain English

On April 25, I note without celebration the anniversary of the birth of Oliver Cromwell: squire, soldier-statesman, and slayer of civilians. During the wars of the 1640s Cromwell ordered the slaughter of innocents in Ireland, an abomination that not even the most ardent of Roundheads (of which I am one) should attempt to rationalize or excuse.

So, mindful of the aphorism attributed to Fritz Perls regarding the fimetic quality of everything that precedes the word “but,” I now have to explain why the birthday of this bloody man is worthy of note in the relatively pancytopenic field of legislative drafting.  My reason has to do with Cromwell’s belief that writing should be simple, a principle I flouted in the preceding sentence by using “fimetic” and “pancytopenic,” words that are not exactly in everyday parlance.  My word choice would have annoyed Old Noll, as his adoring public called him.

As Lord Protector, Cromwell appointed a law-reform committee and charged it with making the laws “plain, short, and easy.” This was one of the achievements he announced in his speech to Parliament on September 12, 1654, in which he urged the honorable members to adopt the Instrument of Government, which would make him life-long Lord Protector.  Standing in a room full of politicians and referring to the establishment of a committee as an accomplishment deserving of reward is evidence that Cromwell knew his audience.

After listing his other successes, (e.g. peace with the Dutch, Swedes, and Danes) Cromwell told his listeners to think of him not so much as a “lord over them” but more as a “fellow servant.” Then he cautioned that before making him dictator for life they should look for evidence that the Almighty considered him up to the job:

[F]or men to entitle themselves to be the only men to govern nations and rule kingdoms and give laws to the world, to determine of property and liberty and everything else, needs a great manifestation of God’s presence before wise men will submit to it.

The Members of Parliament took Cromwell at his word and debated the proposal. However, when their search for a great manifestation of God’s presence took rather longer than he had anticipated, fellow-servant Cromwell sent four companies of the Scots Guards to summon them into his presence in the Painted Chamber at Westminster Palace. There he explained to the representatives of the people that their unanimous endorsement of the Instrument of Government in the “spirit of union and concord” really was the “best expedient and pilot to conduct them to the Haven of Happiness.” Surrounded by men bearing muskets, swords, and pikestaffs, a majority of the parliamentarians suddenly discovered the elusive manifestation of Divine approval they had been looking for, and voted aye.

Just to be on the safe side, the following morning Cromwell locked the doors to Parliament and took possession of the ceremonial mace, so as to put an end to what the official report of the speech and its aftermath called “these distractions.” Historians differ as to whether it is reasonable to describe the ensuing period (which entailed carving the country into military districts to facilitate the rule of the major-generals, a vigorous campaign against immorality, the ejection of dissident preachers, and the imposition of a decimation tax on Cromwell’s royalist opponents) as a Haven of Happiness.

What lesson does this episode offer to aspiring legislative drafters? Simply this: If promises of plain, short, and easy statutes do not prove persuasive, send in the army. But students thinking of enrolling in my one-credit Legislative Drafting course next semester should note that due to time constraints and lack of resources (the ROTC commandant has not returned my calls) we will not be exploring said option in much depth. Instead we shall look at less controversial approaches to lawmaking, such as this.

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Delusionary Zoning, Cont’d.

My previous post about Amherst’s inclusionary-zoning bylaw opened with a quote about the appropriate direction in which to move when standing at the edge of a precipice.  As if to compensate for its potentially Brian-Williamsical quality, a Facebook commenter provided a substitute, which I must remember to use from now on. After impugning my motives (stage two in the Kuebler-Ross model of online discourse) and asking who I am really working for (answer: Koch Brothers, obviously) he asked:

“[A]re you just interested in stampeding the herd with you at the front?”

In the unlikely event that I ever attempt to stampede a herd, I assure you that the front will be the very last place to find me. But I appreciate the image, and shall cherish the quote forever. You can read the whole, jolly FB exchange here.

Yesterday evening I joined the discussion off-line, a term not synonymous with “real world.” The Select Board was discussing the Planning Board’s proposal to replace the current inclusionary-zoning bylaw, Article 15, with a new version. Readers will recall that the purpose of Article 15, which Amherst adopted in 2005, is to increase the number of affordable units. Although fundamentally flawed, the current version at least has the advantage of being simple and, at about 400 words, relatively short. Moreover, it is constitutionally sound, applying only to projects that would require a Special Permit, as opposed to by-right projects.

How well has it worked so far, asked the chair?

At that point I heard the snarky little voice inside my head mutter, “We haven’t gotten any affordable units out of it. It’s been a deterrent.” Only it was not the snarky little voice inside my head. It was Rob Crowner speaking on behalf of the Planning Board, the proponent of the new Article 15.

“We haven’t gotten any affordable units out of it,” he said.  “It’s been a deterrent.”

Inclusionary zoning, whose sole raison d’être is the production of affordable homes in Amherst, has produced absolutely none. Not one. In ten years.

Repeal the bylaw before it does any more damage, send it the way of the Corn Laws; that would be my advice. Unlike my advice, however, the Planning Board’s observes the immutable law of zoning physics, which decrees that bylaws can only ever expand, never contract, let alone disappear.

Therefore, because the short, straightforward bylaw has proved an execrable failure, we must replace it with a bylaw that is not only long and complicated but also extends its reach to by-right developments, i.e. home-building projects that would not require a Special Permit.

Inclusionary zoning has produced no affordable housing, said Mr. Crowner. Rather, it has been a deterrent (as in, something that deters). It has discouraged, not encouraged, affordable housing. If the herd was ever going to stampede away from inclusionary zoning, you would think this announcement would have provided sufficient spooking. But the floors did not vibrate with thundering hooves, and nobody got trampled. That said, there was an odor in the air redolent of the ranch.

Switching metaphors to matters nautical, picture this: His vessel holed below the Plimsoll line and sinking fast, the captain says to his crew, “Lads, we are taking on water. We need to let it out. Larry, you go below-decks and make holes, big ones and lots of ’em.  Take the sledgehammer and a stick or two of dynamite. Curly, you swim ashore and fetch a rock. Something about the size of an Easter Island statute should do.”

That is what the new Article 15 represents. More — much more — of the same.

The current Article 15 consists of about 400 words; the new version weighs in at around 2,000. The current version applies only to Special Permit developments; the new version covers by-right as well. Because of its potential to infringe on property-owners’ Fifth Amendment rights it contains a “nexus statement,” which claims the policy is necessary because affordable housing in Amherst is diminishing, even though it is not. In 2005 the stock of affordable housing stood at just over 10% and ten years later it still stands at just over 10%, which is not a diminution no matter what dictionary you use.

The Planning Board report described this dodgy nexus statement as “legally necessary.” I had emailed my doubts to the Select Board the day before the meeting, and the Town Manager had called counsel for clarity. Yesterday evening the Town Manager stated that the latest legal opinion describes the nexus statement as something that “would be helpful.” The thing went from absolutely necessary to just potentially helpful in next to no time. In a couple of days it will be, “Meh, probably couldn’t hurt.”

So the new Article 15 – all 2,400 words of it, legally indeterminate nexus statement and all – is what the Select Board voted in favor of, unanimously. Onward to Town Meeting, where I am sure it will engender much reasoned, thoughtful debate.

On the subject of reasoned, thoughtful debate, my coming out in opposition to inclusionary zoning led to a robust Facebook exchange that culminated in the quote about my stampeding the herd from the front. It thereby produced something of value, which is more than you can say for inclusionary zoning.

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Decorated combat vet hates America, says cartoonist: No threats or atrocities ensue

Congratulations to Lalo Alcaraz, creator of Vox Vickery’s inaugural Clunkily Unfunny Cartoon Award, which appears in the March 16 edition of the Daily Hampshire Gazette. Alcaraz’s cartoon consists of the words “Dear Iran, We hate the USA too” in a child-like scrawl on United State Senate letterhead, signed Tom Cotton and David Perdue.  Senators Cotton and Perdue are the first two signatories of the letter to the government of the Islamic Republic of Iran that points out that any nuclear-weapons-enabling agreement President Obama enters into with Iran will be one that the next President can revoke should s/he so choose.

For those who failed to receive and absorb the Obama administration’s message via other media, the cartoon will convey the news that the 47 elected members of the United States Senate who signed the letter to the misogynistic homophobic theocrats in Tehran are not merely the President’s political opponents but traitors who hate our country.

Does Senator Tom Cotton hate America? I cannot see into the man’s heart, of course, but judging by the decorations he earned over the course of his combat tours in Afghanistan as an officer in the 101st Airborne, I suspect he holds his country in high regard. But I could be wrong, and for all I know the brass hats in the Pentagon may be handing out Bronze Stars like candy nowadays to all and sundry, including people who hate America.

Sen. Tom Cotton: finally outed as a Hater of America

Mr. Alcaraz may not have put his life on the line, but he knows how to fight back against the forces of Islamic supremacism. When he learned of the murder of the Charlie Hebdo cartoonists by Islamist terrorists, Mr. Alcaraz was quick to respond. Apparently “overcome with outrage,” he drew a cartoon of a black-clad jihadi fleeing a swarm of pen nibs.  It went viral, I gather. But much as he supports free speech, he does not personally “feel the need” to draw Muhammad. Why? Because he respects Muslim religion and culture. Nothing to do with cranial-amputation anxiety, of course.

When not creating sledgehammer-subtle illustrations in the service of the Obama administration, Mr. Alcaraz rewrites the history of the United States so as to make clear what a wretched tale of oppression it is, draws the La Curacha comic-strip for the Los Angeles Times, and works as a “consulting producer” on Seth MacFarlane’s forthcoming Bordertown, an alleged comedy show coming to Fox all too soon. He must have an increasingly busy schedule. Let us hope he still has time to produce presidential propaganda so as to be in with a shot at next week’s Clunkily Unfunny Cartoon Award.

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Ongoing consent: not one of the laws of war

daniel hannan

Daniel Hannan, MEP

Daniel Hannan is a statesman and author whose speeches and writings I enjoy, and I recommend his latest book, Inventing Freedom, to anyone with a taste for liberty. It is rare that I find myself disagreeing with Hannan. His recent CapX column about the terrorist attacks in Paris (“Terrorism is a crime, not an act of holy war”) is one of those rarities, however. Better to treat Islamist terrorism as just another form of criminal behavior, Hannan contends, rather than accept the jihadists’ premise that they are waging a holy war. Before picking away at this contention, let me start where I am more comfortable: concurring with Daniel Hannan.

“Repudiation by the wider Muslim community is of limited importance,” says Hannan. “Extremists regard mainstream Muslims as traitors; indeed, in numerical terms, Muslims are by far their most common victims.”

He is absolutely right. Loath as I am to deploy historical analogies, I shall make an exception and draw a comparison between Islamic supremacism and another nasty ideology devoted to creating a hellish heaven on earth: communism. Back in 1917, there were plenty of reform-minded socialists, but they did not isolate and marginalize Lenin let alone persuade him to switch from bloodthirsty Bolshevik to moderate Menshevik. To the contrary, Lenin dubbed the compromisers “liquidators,” perhaps with an ironic little chuckle because promptly upon seizing power he set about liquidating them. Alexander Kerensky was lucky to escape with his life; millions were not. Similarly, Islamic supremacists are not likely to lay down their carving knives and Kalashnikovs at the behest of their victims-in-waiting, i.e. those Muslims who advocate religious toleration and pluralism.

But after pointing out what will not work, Hannan goes on to ask, rhetorically, what will work. And as a first step, he prescribes mockery.

“Let’s treat them, not as soldiers, but as common criminals. Instead of making documentaries about powerful, shadowy terrorist networks, let’s laugh at the numpties who end up in our courts. Let’s mock their underpants bombs and shoe bombs and pitiable street slang and attempts to set fire to glass and steel airports by driving into them.”

No fair-minded person would deny that “Laughter is the Best Medicine” has proved successful as a feature in Reader’s Digest (its jokes have calmed my nerves in many a dentist’s waiting room) but as a strategic response to militant Islamic supremacism I fear it falls short. The folly of attending a gunfight equipped only with a knife is so apparent that we have a cliché on the subject, one that may soon require an update, e.g. don’t take a joke to a jihad, smirk at a salafist, or tackle a takfiri with tickles. We are, remember, participants in a conflict of arms and ideas that one side perceives as — and has repeatedly declared to be — a war. Treating the enemy as a bunch of bumbling buffoons may help bolster morale on the home front, but it does not rob the conflict of its status.

Even if only one side defines it as such, a war is a war. Those of us in the legal profession, in particular, need to remember that while the law of contracts requires offer, acceptance, and consideration, warfare does not. For those lawyers who can see the world only through legal lenses, think of the current crisis a unilateral contract. Try to put concepts like mutuality and reciprocity in a mental box for a while.

Because no matter how much we, along with former attorney and current President of the United States, Barack Obama, might wish that the tide of war was receding, it is not. Wishing, even out loud, will not transform a war into a law-and-order problem. Nor is combat subject to the same rules as Californian campus coitus, which requires ongoing consent. When the enemy is at war with us, we are at war with the enemy until we win or lose, whether we like it or not.

Our Congress acknowledged this truth in September 2001, when it passed the Authorization for Use of Military Force (AUMF) as a “specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.” Since then, has the enemy surrendered? Far from it. They are waving the black flag, not the white one.

But in his 2013 speech at the National Defense University, President Obama declared that “this war, like all wars, must end.” All wars end, true enough, but not according to some prearranged schedule. War is not a sport, so there are no rules about duration and no referee to blow the whistle at full-time. So although there has never been a Thirty Years’ Soccer Match, seventeenth-century Europe definitely experienced a Thirty Years’ War. That said, I feel like there may well have been at least one Thirty Years’ Cricket Match, and possibly a Hundred Years’ Baseball Game.

At the National Defense University, the President said that the time had come to revise the AUMF that Congress passed in 2001. Why? Because with al Qaeda, or at least the “core” thereof, “on the path to defeat,” and today’s terrorists “less capable” than the Osama bin Laden crew, “the scale of this threat closely resembles the types of attacks we faced before 9/11.” Perhaps that is true. But after “the type of attacks we faced before 9/11” came 9/11. And it was the policy of putting self-declared enemies of the United States in the same category as common criminals that helped make 9/11 possible.

Writing three years after the attacks, the authors of the 9/11 Report stated at p. 343, “It is hard now to capture the conventional wisdom before 9/11.” Not any longer, it seems. The President’s candid return to a September 10th mindset is one we shall all come to rue, here in the United States, the wider Anglosphere, and across the free world.

So, with all due respect to Daniel Hannan, while I am all in favor of kicking back for a good laugh at the Best Terrorist Fails, we are still at war. Making fun of the enemy is certainly cathartic but, as the brave souls at Charlie Hebdo learned, it won’t stop them trying to kill us.

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Mensch and Grubermensch

I am stupid and, as if that were not bad enough, I lack economic understanding. These characteristics are innately mine by dint of my status as an American voter, according to the criteria established by Jonathan Gruber. We are all Grubermensch now, and any resemblance to Nietzsche’s Ubermensch is purely phonetic. Some kudos is due to Gruber: while I don’t know about the rest of you, I have to admit that he was right about me. Any jury presented with a representative sample of the public policies I have propounded over the years would convict me on both counts–(1) stupid and (2) lacking economic understanding–and they would not have to deliberate for more than a minute or two.

grubermensch

For those of you who do not attend to the news, Jonathan Gruber is the MIT professor who helped design the Affordable Care Act (ACA). In 2006, Candidate-in-Waiting Obama described Gruber as someone whose ideas on health care he had “liberally stolen,” and six years later the Obama campaign described him as the man “who helped write Obamacare.” In between, the administration had paid Professor Gruber $400,000 for the use of his proprietary method for predicting how the Congressional Budget Office would score said health-care measure. Now the President calls him just “some adviser who never worked on our staff,” a dismissive description that may have something to do with the reason Professor Gruber has been in the headlines recently: In front of two separate audiences he referred to Americans as “stupid,” and quipped to a third audience about “the lack of economic understanding of the American voter.” And those are just the instances that were digitally captured for posterity.

Yes, a man who repeatedly denigrated the entire country in a snide and condescending manner while he knew he was being recorded thinks we are stupid.

Gruber became a person of interest to conservatives, and an embarrassment to progressives, because he contradicted the administration’s key argument in King v. Burwell, a case about the ACA now pending before the Supreme Court of the United States. The administration claims that the ACA permits the IRS to treat state exchanges and federal exchanges alike for the purposes of subsidies in the form of premium tax credits. It does not. The intent of Congress, as Professor Gruber explained, was to allow subsidies to state exchanges—not federal exchanges—so as to give states an incentive to establish them, rather than leave the job to the feds.

In January 2012, Gruber said: “By not setting up an exchange, the politicians of a state are costing state residents hundreds and millions and billions of dollars… That is really the ultimate threat, is, will people understand that, gee, if your governor doesn’t set up an exchange, you’re losing hundreds of millions of dollars of tax credits to be delivered to your citizens.”

Later in 2012, Gruber said: “What’s important to remember politically about this is if you’re a state and you don’t set up an exchange, that means your citizens don’t get their tax credits, but your citizens still pay the taxes that support this bill. So you’re essentially saying [to] your citizens you’re going to pay all the taxes to help all the other states in the country. I hope that that’s a blatant enough political reality that states will get their act together and realize there are billions of dollars at stake here in setting up these exchanges.”

You can watch a lengthy video here (skip to minute 31:30 for the pertinent part), or via the July edition of the libertarian magazine Reason, which describes Gruber’s position prior to the lawsuits.

I write about Gruber not to join the chorus of commentators castigating him and his former client for the contradiction, but to raise a point about the definition of victory. Professor Gruber’s statements about the dirty little secrets of the ACA’s passage sound like those of a famous thespian conducting a master class, someone who believes that he has already won his bouquets and plaudits, that the curtain has fallen, and that the drama is over. Or if I may tweak the metaphor a little, Gruber, breaking through the political equivalent of what theater-types call the fourth wall, speaks as if the audience will hear him but that the actors, having quit the stage, cannot. Professor Gruber seems not to have noticed that the show is not over. The fat lady ain’t sung yet.

As an American voter by choice not by birth, I wear my slow-wittedness as a badge of honor. Call me a Grubermensch and I will puff out my chest with pride. But even I, an open and notorious dullard, was not so stupid as to think that after the enactment of the ACA the law’s opponents would simply shrug, sigh, and shake it off. And my understanding of economics was not quite so lacking as to lead me to suppose that those whose bank accounts the Act threatened to drastically diminish would, post presidential signature, just let it go.

Politics, like other contact sports, is a game of two halves. For example, some rugby teams pride themselves on being strong second-half teams, able to absorb losses in the first 40 minutes only to bounce back with such gusto after half-time that when the referee blows the final whistle they have more points than the other guys (who don’t look so smug any more). When the President signs a bill into law, what is over is merely the first half, not the whole contest. In the second half of a political match-up, rather than switching ends the players relocate the whole game to the courthouse. Often it is there, in the judicial branch, where the laurels and trophies are handed out.

Perhaps Professor Gruber forgot how many branches of government we have (there is a nasty strain of constitutional amnesia going around Washington, D.C., these days) and figured that success in the legislative and executive branches amounted to total victory. Perhaps he has never played rugby, by which I certainly do not mean to imply that as an MIT man his veins carry dilute cat’s milk instead of blood. Or perhaps as a professor of the dismal science Gruber has no time for the political kind.  Political scientists Theodor Skocpol and Lawrence R. Jacobs mention in their 2010 book Health Care Reform and American Politics: What Everyone Needs to Know the fact that even while the President was signing the bill into law “conservative Republicans were filing lawsuits to try to have key provisions of what they derisively called ‘ObamaCare’ declared unconstitutional” (p. 7). Gruber should have perused the book. He gets a mention on page 191, footnote 8, as the “health economist… who advised both the Romney and Obama Administrations as they instituted health care reform.”

I admit that events can range from the highly improbable, those that Nassim Nicholas Taleb would categorize as Black Swans, to the well-nigh inevitable, those that are bound to occur absent some novus actus interveniens. But Republicans filing lawsuits over Obamacare would tend to fall toward the Sure-Thing end of the spectrum.

Take, for example, those Republicans who had already expressed the intention of doing so. In early 2010 Governor Rick Perry of Texas and the State’s then Attorney General, now Governor, Greg Abbott, said they would bring a case, as did a number of other Republican governors and conservative groups. That should have been a heads-up.

So you did not have to be a genius to foresee that some Republicans somewhere might challenge the law in court. Just Grubermensch like you and me.

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