Wednesday, January 28, 2009

Teaching to a test

For some years now, Arizona schools have had full blown involvement with Arizona's Instrument to Measure Standards (AIMS). Having been a professor in Arizona's junior colleges for over five years, I saw a lot of students. Let's just say that I was never overly impressed with their skill or knowledge level. Now with Standardized testing, like the AIMS Test, students who are already lacking in general knowledge helpful for survival, will degrade even further. Ranking schools according to the AIMS scores will guarantee that both students and teachers will concentrate on just the information required for the test and there will a further degradation of general knowledge.

Let me give an example. I taught Spanish 101, that is, introductory Spanish. One of the first questions I would ask the students every semester, was the following:

"What is the state that is directly south of and adjacent to Arizona?"

Now, without looking at a map, think of the answer. Give up? Well, let me ask the second question, "What is the name of the country immediately to the south of Texas, New Mexico, Arizona and California?"

Think you know the answer?

Let me give you hint, click here for the Wikipedia article.

The name of the country, for those of you who still don't get the questions, is the United Mexican States or the Unites States of Mexico. Mexico has thirty-one states. The state directly south of Arizona is Sonora.

In all of my classes, almost universally, no one could answer these two questions. Mind you, this was a college level Spanish class in Mesa, Arizona just179 miles from Mexico. When I ask the question to people randomly, I seldom get even a guess.

I use this example to point out that despite standardized testing or more likely as a result, the average American student knows practically nothing about the world around him or her when they leave 12 years of grade school and high school.

Looking at the AIMS test scores, it is apparent that most of the schools in Arizona fall into the range of test scores between 400 and 500. Although it is more difficult to read the scores than it is to take the test, if you look at the 2008 AIMS Scale Score Table, you can possibly determine that half of the Arizona students scored below meeting the standard set. Although the school may meet the standard, the score is a median so half of the students were below the standard. So not only are the students now learning only what is on a standardized test, likely half of the students aren't even learning enough to meet the test standard that is a score of about 450 to 550 or higher.

In their desire to force students to learn some basic facts to pass the test, they are ignoring teaching the students many survival skills at all. Another example, how many 12th graders can balance a check book without assistance and read a credit card bill?

Presently, a whole support industry has arisen around the tests. There are tutors, companies with practice tests and in fact, the Arizona Department of Education even has a set of sample tests. A system of education that was already impoverished is now almost totally bankrupt. Teachers who want to educate their students are forced to spend most of their time teaching to the test because their effectiveness is measured, to a great extent by the test scores of their students. What is worse, many students will begin to or already associate education with the AIMS test.

Tuesday, January 27, 2009

Questions to which there are no answers

In the weighty matters of the world there are always imponderables, questions that do not have answers. I have my own list of those questions that never seem to get adequate answers. Here are a few of them:

Why do evolutionary scientists feel threatened by the teaching of creationism?

Why do North American anthropologists immediately reject any theory of human contact with the American continents other than across the Bering Strait?

Why are paleontologist always looking for a missing link?

Why do some people get more upset about the 4236 U.S. casualties in Iraq rather than the
40,000 people each year who are killed in car accidents, over 20,000 who are killed by the flu, and over who 15,000 are murdered each year?

Why do some people believe that there are large unknown mammals in the United States outside of Alaska?

Why do some people still believe in the hollow earth?

Why do car manufacturers keep making cars that let over 40,000 people a year die in accidents?

Why do people keep opening E-mails advertising male enhancement pills?

Why do people believe that the price of gasoline is demand driven?

Why do people believe that annuities are either a form of insurance or an investment?

Why do some people feel compelled to write blogs?

I am sure there are many more questions out there but only these come to mind today.

Sunday, January 25, 2009

Braess's Paradox and the Nash Equilibrium

One interesting fact about driving in Phoenix is that depending on traffic conditions, including daily traffic patterns, there is no particular advantage to driving on one of our lovely freeways. I finally read enough to learn some of the underlying reasons why this occurs. One of the major factors is a principle called Braess's paradox. The formulation of this paradox is credited to the mathematician Dietrich Braess. Essentially, "[f]or each point of a road network, let there be given the number of cars starting from it, and the destination of the cars. Under these conditions one wishes to estimate the distribution of traffic flow. Whether one street is preferable to another depends not only on the quality of the road, but also on the density of the flow. If every driver takes the path that looks most favorable to him, the resultant running times need not be minimal. Furthermore, it is indicated by an example that an extension of the road network may cause a redistribution of the traffic that results in longer individual running times."

The reason why this occurs is due to the fact that the drivers have no incentive to change their routes, that is the system is in Nash equilibrium and that the equilibrium is not necessarily optimal. "If the system is not in a Nash equilibrium, selfish drivers must be able to improve their travels time by changing the routes they take. In the case of Braess's paradox, drivers will continue to switch until the Nash equilibrium despite the fact that overall performance is reduced."

What I had observed in driving across Phoenix is that in many cases taking a variety of surface streets can equal or reduce the driving time involving freeways. Very simply, the freeways don't always go where you are going and driving to and from the freeway may add more time to a specific trip than simply taking a more direct surface street. Another contravening factor is the vast distances involved in travel in the Salt River Valley. Even traveling at the legal speed limit on freeways it can take more than an hour to reach the edge of the city.

Yet another limitation on the full application of the paradox is the availability of side streets that are seldom used by commuters. If you find a line of cars you can turn down the first available side street and avoid the congestion, if you know the streets.

The real reason this paradox is interesting is that it tends to show that adding freeways and widening streets may increase congestion and travel time, rather than reduce it. Each driver in turn takes this slightly quicker route, at a small saving for himself, but causing substantial extra delay to a number of other drivers. By the time everyone has decided whether to take the short cut, the total congestion gained by the system far outweighs the savings in distance.

We are presently being told by our new President, that he is going to improve roads and pour huge sums of money into infrastructure. The solution in Phoenix, so far, has been to add more freeways, i.e. increase the complexity of the network. Maybe it is time to think of the alternative? Reduce the number of cars instead of just adding another route to the network.

Thursday, January 22, 2009

Don't cry for National Public Radio

I fall right in the middle of the demographics for listeners of National Public Radio (NPR), except in political, social and religious views. I first started listening regularly shortly after it went on the air in 1970 and have listened regularly since then. When I started listening, it was common for me to mention the broadcasts and receive totally blank looks. No one listened to NPR. Now it exactly the opposite, to quote their Web site: "The audience for NPR programming has doubled in the last ten years to 26 million weekly listeners. Since Fall 2000, the audience to NPR programming has added nearly 8 million listeners, an increase of 40 percent. In the early 1980s, about 2 million people listened to NPR."

Part of the reason for the increase, I am sure, is the simple fact that there is nothing else to listen to on commercial radio, unless you want to be yelled at or sworn at or both by the radical right or the radical left. Unfortunately, as the audience for public radio has expanded, NPR has become more and more politically correct and sensational. I used to love hearing commentators like Red Barber and John Ciardi. I cried when both of them died because it was like losing a friend. In fact, I can still feel sad just thinking about them. Unfortunately, as they died off, no one replaced them.

Today, other than a few highlights, like Story Corps, most of the commentary is either so politicized to be offensive or so bland as to be offensive. The programming is so predictable that I know exactly what they will be talking about regardless of what is happening in the world. Some of the commentators are so biased that I have to turn off the radio. Recently I am getting tired of hearing about challenges in the Gay Community and how the Palestinians are suffering under the attack by Israel.

Historically, NPR has been so liberal that more conservative Congresses have almost cut off their funding. Now, with a Democratic Congress, that is unlikely to happen. But although it will be hard for me to break my long time habit of listening, I am cutting down more and more. I can only be offended by Howard Burkus so many times before I will quit entirely especially now that I can listen to Car Talk, Science Friday and Story Corps on Pod Casts and don't have to put up with the rest of the drivel.

Tuesday, January 20, 2009

All statistics lie, even this one

It is not difficult to find a news article that either refers to or alludes to some sort of study or statistic. In 1954 Darrell Huff wrote a book called "How to Lie with Statistics." Recently, the atheists have gotten into citing statistics and seem to be proponents of Mr. Huff's book. In a recent article posted by the Americanatheists in which they ask President Obama to turn down a role as honorary president of the Boy Scouts of America, the author, who identifies himself as Roy Speckhardt, states; "Many presidents of the United States have taken on the title of honorary president of the Boy Scouts of America. However, this tradition was established when discrimination against nontheists was, unfortunately, socially acceptable. Given that nontheists now make up a sizeable minority of the American population-­having more numbers than Mormons, Buddhists, Hindus, and Jews combined-­the BSA is clearly out of touch with the spirit of pluralism, tolerance, and inclusiveness that compose today’s American values." [Spelling as in the original]

Mr. Speckhardt purports to speak for a whole long list of organizations:

American Atheists

American Ethical Union

American Humanist Association

Atheist Alliance International

Atheist Nexus

Camp Quest

Center for Atheism

Center for Inquiry

Center for Naturalism

Council for Secular Humanism

Freedom From Religion Foundation



Institute for Humanist Studies

International Federation for Secular & Humanistic Judaism

Military Association of Atheists and Freethinkers

Secular Coalition for America

Secular Student Alliance

Society for Humanistic Judaism

Do nontheists outnumber Mormons, Buddhists, Hindus and Jews in the United States? If they don't then the American Atheists are lying and what is more, they are attempting to lie to the President of the United States. Now, I can't possibly believe that President Obama would even give these people the time of day, but it is symptomatic of this group of organizations to misrepresent their own importance. Even if it is true that the atheists outnumber the four groups, it is likely is that the authors chose those four organizations from a list, including the controversial Mormons or members of The Church of Jesus Christ of Latter-day Saints, specifically because the total membership of the four groups was less than their own estimate of the number of atheists. It is interesting that the Pew Research Council found 84% of the U.S. population considered themselves Christians.

Here are some statistics on the sizes of the four groups, obviously, you can take your pick of who you believe, but I will give you links to the original sources rather than making a blanket unsupported statement. Listed in the order they are claimed in the Atheist article:

The Church of Jesus Christ of Latter-day Saints, 5,779,316 members as reported by the 2008 Edition of the Yearbook of American and Canadian Churches.

Buddhists 2,000,000 appx. The Buddhist Faith Fellowship of Connecticut claims in news articles that in the year 2008, the Pew Forum's U.S Religious Landscape Survey was published with great fanfare. The results showed surprising shifts in American religious life over the past decade. One important development is that Buddhism climbed to be the 3rd most practiced religion in America below that of Christianity and Judaism. The results showed that .7%, surveyed as Buddhists, which would mean that there about 2,000,000 Buddhists in the USA. Islam ranked at .6% and Hinduism settled in at .4%. Demographically, it was found that the majority of Buddhists were Gen-Xers and between the ages of 30 - 49. Also, American Buddhism's growth is predominantly based on the conversion of native-born Americans showing that Asians numbered only 30% of this population. Geographically, western USA had more Buddhists than in the east coast. Finally, 20% surveyed believed in a personal God in contrast with the overall population that registered at majority of 60%.

Well, it seems that the Buddhists at least, claim to outnumber the Atheists all by themselves.

Hindus are estimated to be 1,478,670 or .5% of the total population. However, Hinduism Today give a much higher figure of 2,290,000.

Each of these discussions gives the rationale and the range of figures.

The total is about 13,257,000 for all four groups. Now what about atheists? First, of all, atheists don't belong to an organization as such, so they can't be counted like Mormons, but there are plenty of estimates of their numbers. See this article on How Many Atheists in America?

A University of Minnesota Study on American Attitudes Towards Atheists & Atheism
expresses the opinion that there are a relatively low number of atheists. The number is probably entirely indeterminable because some of the studies cited lump everyone who says they do not belong to an organized religious group as an atheist. Other studies put the number at slightly more than a million. One study quotes figures indicating the 1.6% of the population say they are atheists.

If the study quoting 1.6% is correct then the claim that there are more atheists than Mormons, Buddhists, Hindus and Jews is wrong. It is always unlikely that any special interest group, especially one that claims to be persecuted, will accurately estimate its own size and composition.

Saturday, January 17, 2009

Newspapers are dead, long live newspapers...

Newspapers, telephone books and almost all print advertising is on its way out and about ready to bite the dust. When was the last time you looked at a telephone book? Even if you saw a print ad, didn't you go look up the item on the Internet? A Pew Research Center for the People and the Press did a study. The results were as follows:

Although traditional newspaper readership is down, falling at the rate of about 2.5% a year, rather than signaling the end of news, it is more an indication of the change in the channel of communication. You may not be able to wrap the garbage in it or put it down to paint the room, but the paper edition is only transforming itself into a different product. The Annual Report on American Journalism states that News is shifting from being a product — today’s newspaper, Web site or newscast — to becoming a service — how can you help me, even empower me? To quote their article on Major Trends; "And newer media seem to have an even narrower peripheral vision than older media. Cable news, talk radio (and also blogs) tend to seize on top stories (often polarizing ones) and amplify them. The Internet offers the promise of aggregating ever more sources, but its value still depends on what those originating sources are providing. Even as the media world has fragmented into more outlets and options, reporting resources have shrunk."

The Annual Report also reports "A shrinking of news staffs and space committed to news continued though 2007 and spread from the big metros to many mid-sized papers. Some of the lost “feet on the street” end up as jobs added to online and niche, but the ambition of newspapers to cover their regions or even basic government functions in nearby exurban towns is on a sharp decline."

It may be that all that time I spent as a Boy Scout collecting old newspapers to raise money for our troop may soon become a historical oddity.

A disadvantaged child

Let's get past the political correctness right off the bat, a "disadvantaged" child is one that is poor. We don't have any poor in America anymore, we have disadvantaged minorities. But I would like to tell you about one of those disadvantaged (read poor) children. This child was so poor that he never had the obvious advantages of watching Sesame Street on TV, wearing Oskosh by gosh toddler clothes or being able to use his home computer for homework. In fact, this child was so poor, he only attended formal schooling for a short time. He never had the advantage of an extended learning or advanced placement program. He never got drilled for standardized testing. His parents never bought him Nikes or Rebocks. Worst of all, he never owned a set of Legos.

He didn't have the advantage of an enlightened curriculum designed so that no child was left behind. He never had the benefit of effective classroom teaching in terms of pedagogy. His ability to understand a particular lesson was never enhanced through effective audiovisual techniques. He apparently never was taught how to put a specific lesson into a larger context including its clinical relevance or review of prior material. It is unlikely that anyone fostered him in an effective learning environment including showing respect for him as a student. His intellectual growth was not encouraged.

No one taught this poor child any social skills. He never experienced a cooperative learning team in a brainstorming session. I doubt he was Student of the Week and certainly did not have access to a Skill of the Week bulletin board. He probably never learned active listening or praising, taking turns or using quiet voices. He certainly was never tutored in staying on task. His life was not cumbered with an expert preceptor interactive curriculum and how to prioritize among problems. You can tell, he was severely and perhaps terminally disadvantaged. It is unlikely that he ever viewed a PowerPoint presentation.

We can only wonder at how this child was able to function at all, and it is no surprise that he became a day laborer working at the most menial of tasks.

Remarkably, he was able to overcome these vast educational and economic deficits. He was finally, after many years of self study and hard work able to get a respectable job. It could even be said that he was well liked by some of his peers. He was well liked enough to get elected as President of the United States and become one of the greatest writers and speakers in the English Language -- of course, Abraham Lincoln. How much of what he missed was really a disadvantage?

Tuesday, January 13, 2009

Give me liberty not rights above liberty

Is social acceptance so dear, or individual freedom so sweet, as to be purchased at the price of losing our families and our children? I would ask this question, paraphrased from Patrick Henry, today about the proliferation of individual "rights" at the expense of losing our basic identity, our Western civilization and our humanity. In the pursuit of individual rights, we have all but abandoned the fundamentals of moral agency that made us a free nation. As Patrick Henry said, "We are apt to shut our eyes against a painful truth, and listen to the song of that siren till she transforms us into beasts."

Although that pursuit of rights above liberty, rights above freedom and rights above logic or reason, has lead us to the brink of disaster, there is some small measure of hope that right thinking citizens of many races and persuasions will awaken to the danger that raising rights above all other considerations will ultimately befall us all. The true danger comes in the form of court opinions that overthrow the will of the majority of our people to satisfy hurt feelings of the few. When social acceptance and political correctness become our highest national aspiration, the short path to moral and societal destruction cannot be far behind.

There is no middle ground in this battle, those favoring same sex marriage do not just demand social equality, they wish to determine the values of our entire culture and belief structure. Again quoting Patrick Henry, "In vain, after these things, may we indulge the fond hope of peace and reconciliation. There is no longer any room for hope. If we wish to be free-- if we mean to preserve inviolate those inestimable privileges for which we have been so long contending--if we mean not basely to abandon the noble struggle in which we have been so long engaged, and which we have pledged ourselves never to abandon until the glorious object of our contest shall be obtained--we must fight! I repeat it, sir, we must fight! An appeal to arms and to the God of hosts is all that is left us!"

We will not and cannot abandon this noble cause to the base and degrading lowest denominator of our society. Society as a whole, must know and recognize that there are those who believe in eternal principles and that there is no compromise with evil. Social acceptance is not truth. Individual rights do not and cannot be allowed to destroy our sacred liberty.

"They tell us, sir, that we are weak; unable to cope with so formidable an adversary. But when shall we be stronger? Will it be the next week, or the next year? Will it be when we are totally disarmed...? Shall we gather strength by irresolution and inaction? Shall we acquire the means of effectual resistance by lying supinely on our backs and hugging the delusive phantom of hope, until our enemies shall have bound us hand and foot? Sir, we are not weak if we make a proper use of those means which the God of nature hath placed in our power. The millions of people, armed in the holy cause of liberty, and in such a country as that which we possess, are invincible by any force which our enemy can send against us."

Sunday, January 11, 2009

You have the right

"Rights" are one of the most overworked topics in today's discourse both in the media and in the courts. In examining the United State's Constitution it is interesting to see where the word "right" or "rights" is used. Here is a compilation of the places and context of the words:

Section 8: To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

That's it. One instance and that reference is to patents and copyrights. You may wish to see an online high resolution scan of the original document.

Then where then does this idea of constitutional rights come from? The first ten amendments to the U.S. Constitution are called the Bill of Rights. Alexander Hamilton wrote in the Federalist No. 84, that Bills of rights are in their origin, stipulations between kings and their subjects, abridgments of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was "Magna Carta" obtained by the Barons, swords in hand, from King John. It is and was implicit in the concept of "rights" that those given rights would have concomitant responsibilities and duties.

The very first of those Amendments states: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." In each of these categories, those given rights were implicitly given responsibilities.

I would suggest you read all twenty-seven amendments. If you look very carefully through the amendments you may find that certain "rights" commonly referred to by the media, are not mentioned at all such as the so-called right to privacy. This type of "right" comes from either the popular perception or from subsequent court decisions or legislation. The history of the evolution of these additional rights could each be the subject of a lengthy study. The Framers of the Constitution and its Amendments took into consideration that other rights could be considered. In this regard, it is important to consider the wording of the Ninth Amendment. "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

By focusing on rights to the exclusion of responsibilities, our modern society has moved far from the equity and respect for individuals envisioned by the Framers of our Constitution. Although certain major issues involving the dignity of our nation's citizens, like slavery and women's suffrage were omitted from consideration originally, those glaring errors were rectified, although the process, in the case of slavery, resulted in the American Civil War. The rights addressed in the Constitutional Amendments, almost entirely, with participation in the processes of voting and government administration and finance. The Amendments are not directed at individual or personal issues. The only time an amendment dealt with a social issue was Amendment 18 which was repealed by Amendment 21 having to do with Prohibition.

The present movements to increase various "rights", including those directed at same sex marriage, have moved out of the realm of dignity and the consideration of the participation of individuals in the governmental process, into the realm of social engineering. It is not so much that the new rights are intended to rectify long standing wrongs, they are more designed to remake society in the image of those contending for additional privileges. We are now more focused on labels than the duties and obligations as citizens. Especially those advocating same sex marriage are not intending by their search for additional rights to increase their own responsibilities, in fact, they wish to abdicate any responsibility at all, for their actions, for the impact their choices have on our society and the impact on our children. Their claims are not in furtherance of social welfare, but of their own personal gratification and social acceptance.

What they are seeking is not equal rights, but privilege and avoidance of consequences. They wish absolution of their responsibility for the destruction of the nuclear family and more than equality, they wish to impose their lack of morality and family values on the rest of society. They are not seeking rights. They are seeking privilege. By forcing this issue into the realm of Constitutional law, those opposing same sex marriage and other such experiments in social engineering, are left with the sole option of opposing those efforts on a Constitutional level. Although the Constitution and its Amendments have not historically addressed such issues, the passage of state laws allowing same sex marriage and judicial decisions sanctioning same sex marriage and overturning state constitutional amendments, has forced this social, religious and moral issue into becoming a Constitutional issue.

Improvements that aren't

One of the hallmarks of our post-industrial/information based society is the need for "new and improved." The vast majority of manufacturers seem to believe that any product worth buying has to be "improved" periodically or it won't sell. A Google search on "new and improved" returned 7,530,000 entries with references to everything from software to cars and even libraries. I am reminded of the Apostle Paul's experience in Acts 17:21 where the philosophers spent their time in nothing else, but but either to tell, or to hear some new thing.

In my early youth, I began shaving with an electric razor. I soon changed over to razor with blades. Through the years I have found that every so often the companies stop making the type of razor blades that fit in my particular razor and so I have to buy a new one. Of course, each new development is guaranteed to be the closest shave of your life and some beautiful girl will just be irresistibly drawn to you because of your close shave. The latest iteration of this phenomena is the Gillette Fusion with five, yes you read that right, five blades. There is even a model with battery power. The blades cost a small fortune to replace. There is just one problem. The blade head is now too big to shave my face. In addition, my experience was that the blade wear out and become dull inordinately fast. After suffering several bothersome nicks, I finally decided to go back to the previous model. Guess what? They don't sell the blades any more.

In desperation, I grabbed a very inexpensive disposable razor, a whole bag of these razors sell for less that the replacement blades for the Fusion. What a treat! The cheap razor worked much better than the expensive one and lasted more than twice as long. This got me thinking. How many things, big and small, are not improvements at all, but merely a way to force us to pay for something new. Why do we always assume that the new item is better? What else out there is new but not improved?

We have one really good example of new and improved not being either new or improved with a light rail system in Phoenix. First of all, we had an electric trolley system in Phoenix around the beginning of the 1900s, so the idea is far from new. Secondly, the new system is not an improvement because first, it doesn't go anywhere people need to go and second it only covers a small portion of central Phoenix. For example, one of the busiest airports in the world is Sky Harbor Airport in Phoenix, you might think it would be a good idea, if you were going to build a light rail system costing millions and millions, to have it go to the airport. Wrong. In order to get to the airport from the light rail you would have to take a shuttle bus.

In the East Valley, there is a large community college, one of the largest in the United States. Mesa Community College has over 26,000 students, most of which attend its main campus. Now, maybe you would think that the light rail would go by MCC? You would be wrong. The end of the rail system is about two miles away from the Campus. Just far enough, that no one would think of walking. You might also think, well, I could drive to the terminal and take the light rail downtown to Phoenix, saving on parking and travel. Well, the light rail takes longer than the freeways in car and there is no where to park at the East Terminal. So you can't park and ride.
This goes on and on.

We have a huge financial crisis in our country right now, maybe it is time someone started thinking about building transportation and making our own products that actually work. It might be easier to compete with China and the rest of the world if Americans built things that worked and were a real improvement. By the way, the Fusion Razor was made in Poland. The cheap razors, I am now using, are also Gillette and made in Mexico. They come in a package of 52 razors, which appears to me to be more than a two years supply.

Saturday, January 10, 2009

Homeowner associations -- the new American servitude

Early in our American history, many immigrants financed their escape to the New World by becoming indentured servants. The only real difference, in some cases, between being an indentured servant and a slave, was that the servitude was generally for a period of years. By entering into such a contract, a person gave up valuable rights and privileges. If the contract turned out to be advantageous, all was fine and good, but if the service turned out to be intolerable, too bad.

Presently, both indentured servants and slavery are ostensibly outlawed in the United States. However, many of the incidents of both institutions have been revived in the modern homeowners association. Purchasing a home governed by an association obligates the owner to bow to the will of the association concerning virtually anything having to do with the home. Although there is some language supposedly limiting the power of the association over the lives and possessions of the owners, in many cases a simple majority of your neighbors can impose new and unimagined restrictions on the use of your property.

In most states, obligations to homeowners associations take priority over practically any protections of property granted by the state. For example, the homestead exemption, that allows you to protect a portion of the value of your property from judgment creditors does not apply to homeowner associations. In a recent ruling in a case in Arizona, the Court awarded judgment in favor of a homeowners association against one owner who had moved from the subdivision years before the lawsuit. In the same case the Judge ordered judgment against an owner whose property had been taken by foreclosure. Even selling the property or having a foreclosure did not allow the owners to escape liability to the association. In fact, in the same case, the same Judge issued a judgment against one owner who had died. At least in for both an indentured servant and a slave, their obligations ended with death. All of the above facts had been made clear to the Judge before he issued the judgment. At the last minute, the Judge did change the Judgment by crossing out the name of the dead owner with a pen mark.

Homeowners association wield vast influence and authority in our society. They are the almost invisible government that intrudes into our very personal lives in a way unimagined by any of the other regulatory agencies of our society. Acting through its Board of Directors, homeowner associations have used their power to persecute anyone they disagree with for any reason including race, religion and national origin. In one case, a homeowner was fined repeatedly after the association president learned that her grandmother was an Black American. This is unfortunately, not an isolated instance.

Homeowners who object to the dictatorial powers of some associations are told that they can just move if they don't like it. One association officer testified in a trial, that the reason the Board had imposed so many restrictions and fines on the owners was because they did not want that kind of person in their neighborhood. In today's slumping home market, it is not always even an option for an owner to simply sell their home. In some places, like Arizona, it is very difficult to find a home that is not located in a homeowners association. In many cases, once you have purchased a home subject to an association, you are stuck with the consequences, either good or bad, for years, just like an indentured servant.

Owners who argue with their association that they are being charged for services they do not need or use, are often subject to liens and foreclosure. Failure to pay the homeowners association assessments can result in the association foreclosing on your home. Failure to abide by the rules and regulations of the association can often result in the same results. In one Arizona case, the owner, an elderly lady, was forcibly removed from her home by the police after the association foreclosed because of her failure to cut her plants. Subsequent to that case, the Arizona legislature modified the ability of associations to foreclose for breach of the rules, but they can still collect all of their fines, attorneys' fees and costs, at the time the property is ultimately sold.

In a recent movie, Over the Hedge, at the end of the movie, the homeowners association president is being hauled away by the police and is screaming, "You can't arrest me, I'm the president of the homeowners association." This wouldn't be funny if it weren't true in some cases. In Arizona, at least, the Courts, in some cases, are openly antagonistic to homeowners association cases. I have been before judges who have openly expressed the opinion that disputes involving associations were a waste of their time and the court's resources. This attitudes allows associations and their attorneys to reign almost unimpeded in the courts. Attempts to limit association's powers in the legislatures are opposed by huge professional teams of paid lobbyists. Because they are not considered "state actors" (i.e. agents of the state), homeowners associations are not subjected by the courts to the Constitutional limitations of due process or equal protection. Likewise, almost no courts have recognized that they may be sued for civil rights violations.

Perhaps it would be wise to have a disclosure posted on the boundary of every homeowners association stating that you are advised to proceed at your own risk because you are leaving the jurisdiction of the United States of America.

Those who support associations argue that they are necessary to protect the owners' property values and interests. No one has ever demonstrated to me, through any measure or statistic that property located in a homeowners association is more valuable solely because of the existence of an association. In Arizona, real estate sales people advertise when a home is not in an association, as if that fact enhanced its value. Finding comparable property to show the value or lack thereof, of association membership, is getting harder and harder, because virtually all newly built properties in the state are located in homeowners associations.

From a legal standpoint, since homeowners associations are created and maintained by deed restrictions, if I purchase the property, I am deemed, by the law, to have agreed to the provisions even if I had no actual knowledge of their content. In Arizona, and likely in other jurisdictions, it is not legally required for a purchaser to even have been given or shown a copy of the association's legal documents, including the declarations of covenants, conditions and restrictions (CC&Rs or declaration), before the close of the sale. Arizona law only requires that the purchaser received notice after the sale has closed. But since the declaration or CC&Rs are a matter of public record, any purchaser is deemed to have notice of their existence and content.

This is obviously a subject in which a lot can be said and written and I will likely return to related issues in future posts.

Friday, January 9, 2009

Bankruptcy Blah Blah Blah

It seems that every time I think I have run out of things to comment upon, I find some new outrageous issue. This time it is the discussion of proposed revisions to the bankruptcy laws to favor home owners in default.

Here's the proposal. Give more leeway to homeowners allowing a Federal Court Bankruptcy Judge to essentially re-write the homeowner's mortgage to reduce the interest rate or to establish the home's fair value in the event of a foreclosure. Now that doesn't sound too bad does it?

Think again, if I buy a house and pay cash (or spend years and pay off the mortgage), I will have to pay every penny of the value. But if one of my neighbors ran out and purchased a home with no money down and a low initial rate on an Adjustable Rate Mortgage (ARM), then they can file bankruptcy, now that they find themselves unable to make the payments, and have the Court reduce the amount they have to repay by lowering the interest rate.

In a recent article entitled "Please, Judge, Save My House" published in the AARP Bulletin for January/February 2009, one homeowner was quoted as saying, "Bankruptcy turned out to be a bunch of blah, blah, blah. It's really not a help for working people like me." Excuse me. As a practicing attorney I never viewed bankruptcy as a "help" for anyone. I always thought that it was kin to death. You only went into bankruptcy as a last resort, not if, like the woman quoted, you owed $10,000 in credit card debt and really, just wanted a way to refinance your home loan.

How does changing the bankruptcy laws to allow for a renegotiation of home loans benefit all those people who are diligent in paying their payments. I pay 6.5% and my neighbor, who also pays 6.5% takes out bankruptcy and then gets his rate lowered to whatever. But if I go to my bank and say, look, I am diligent in paying my mortgage, how about lowering my rate to the rate you just gave my neighbor? I am sure they would laugh at me. In other words, I am penalized because I pay my debts!!!

Not that the people who cannot pay their mortgages are dead beats, but there are some who purchased their homes with no intention or no ability to actually make the payments. In those cases, changes in the bankruptcy law to allow for substantial reductions would be nothing more than a windfall, a free ticket to more deadbeatism.

What if I don't have a mortgage at all? My home decreases in value just like my neighbor and if I have to sell my home with the market down, I will lose a large chuck of what I thought I had in equity. On the other hand, if I wasn't so unAmerican to own my home, if the home is owned by the bank, I don't have to take the hit, I can file bankruptcy and have the amount I paid for the home adjusted downward to keep me from losing money. If you can't see what's wrong with this scenario, you probably have a large mortgage.

What about a program to subsidize those who own their homes? Why not allow a credit or something that will help to reduce the bite of the loss in equity due to the downturn in the market?

Wednesday, January 7, 2009

Lessons from disaster

I just finished watching another, in a very long stream of a subgenre of disaster movies depicting conditions threatening the survival of mankind. I have been raised on a steady stream of these movies since "The Day the Earth Stood Still" back in 1951 and "The Day the Earth Caught Fire" in 1962. Out of the many "ten best" lists, it seems that there are always one or two of the films that deal with the destruction of mankind in some form or another. I even suffered through various iterations of "Planet of the Apes." Some of the movies were pretty good, like Independence Day, but others were awful like When Worlds Collide. The awful ones outnumber the good ones by quite a large factor. Recently, they have been making these movies in pairs, likely so you can see how bad both of the movies really are, like Deep Impact and Armageddon as well as Volcano and Dante's Peak. I can still remember the depressed ending of On the Beach although I did like the race cars. I have to mention here, that I do not go to see R rated movies at all, period. So I am spared some of the worst of the worst. (See MIB)

Through all of this devastation and destruction, I have learned a few lessons I would like to pass on before I do.

1. If you want to survive, do not live in New York City. Inevitably, the ice (See The Day After Tomorrow), or the monsters (See the newer Godzilla 1998 version) and a lot of other terrible things end up in or start out in New York. Most recently I Am Legend which was sort-of like a remake of I Robot without the robots, other charaters besides Will Smith or the plot. Phoenix is almost immune to disaster it seems. Interestingly, in Independence Day, when all the major cities of the world that are destroyed, the aliens skip some of the larger cities in South America and Africa. Apparently, monsters and aliens are not interested in you if you live in Buenos Aires. If you have to live in New York, try to live as close to the New York Public Library as you can. If you have to move out of New York, do not chose London or Tokyo.

2. Do not walk around at night shining lights into dark warehouses or other structures. This suggestion may cause some inconvenience to those who shine lights into dark warehouses for a living, but usually the inconvenience is short, because the person ends up dead or eaten or worse.

3. In most cases, stay close to the President of the United States. The President always seems to have a good bit part in the disaster movies and although the President has been known to bite the dust, the Vice President usually comes through (or vice versa). See Independence Day again unless you have already seen it ten times.

4. If you have to go somewhere, go to a church. You might still get zapped by the aliens but the guys that survive will probably be around there somewhere. See War of the Worlds (two versions, both pretty bad). But so will the bad guys, aliens, monsters etc.

5. If you have to wear protective clothing, be careful around sharp objects. This suggestion is self explanatory and just makes good sense. However, the people who write these movies never seem to give the main characters enough sense to come in out of the rain and they always seem to be tearing the suit. See Andromeda Strain or better yet, don't see Andromeda Strain.

6. If a lone scientist moves into town with a wacky theory about the destruction of the world, leave town immediately. It is amazing how many of these movies focus on one person who seems to have figured out why the world is ending and no one else seems to catch on. If the wacko isn't the scientist, then there a beautiful young woman scientist to take the rap for the theories. See any number of hacky made for TV movies on the Sci Fi channel.

7. If a strange meteor lands near your farm, leave the area immediately. This scenario was even spoofed in Men In Black. This rule is especially true if you are at all curious and feel compelled to investigate the strange phenomena.

8. Don't pay good money to see a disaster film. Wait until you can get it free through a local public library or borrow it from one of your friends or family members who has not read my blog. If you feel compelled to see a disaster movie, just remember you can't fast forward on TV or in a theater.

Wait a minute, I almost forgot the ultimate, absolute, worst movie of all time. So bad it has a cult following, you guessed it: Plan 9 from Outer Space. And wait minute again, don't forget The Monster that Challenged the World (which assumes the world is located in the Salton Sea in southern California next to a canal). Now that I've got started, you have to remember The Invasion of the Saucer Men which redefines the term special effects in a very negative way and last, but not least, the original, the only, The Crawling Eye.

And what did I learn from these gems? I watch way too many movies.

Thursday, January 1, 2009

Attorney representation in Arizona and the issue of sexual orientation

With the coming of the new year, I will mark my 34th year of practicing law in Arizona. Considering the recent controversy over the possible adoption of a reference to sexual orientation as part of the Oath of Office for admission to the State Bar of Arizona, I can truthfully say that in all of my years of practice I cannot remember ever having the sexual orientation of a client be a factor or even a concern as to whether I represented that individual or not. In fact, I have never made a decision to represent a client or to not represent a client based on a client's inclusion in a particular category. My decision to represent a client is based first and foremost on the needs of the client and as to whether or not my particular practice, skill and or expertise can serve those needs. Quite frankly, in most commercial situations, representation is also based on the ability and willingness of clients to pay for legal services. Law is still a business and attorneys have to make a living.

Even though payment is a factor in choosing to represent or not, it is still only one factor. I have represented hundreds of clients who could not pay for my services. But my choice to represent these clients is mine and I would resent any, including the State Bar of Arizona, who attempted to dictate who I represented. This would be particularly true if I disagreed with the merits of the legal argument being advanced. I would simply refuse to represent anyone who did not have a meritorious claim, regardless of their ethnic, social, religious or sexual orientation. During my years of practice I have represented thousands of clients, many of whom were not of my ethnic background, country of origin, religious belief, sexual orientation or whatever. Just because they were not people I would associate with on a personal level never determined how or why I took a particular case.

In expanding on that idea, I can give a partial list of the types of people I have represented: illegal aliens, Blacks, Whites, Asians, Latin Americans, Gays, Straights, Catholics, Protestants, Jews, Native Americans, street people, millionaires, major corporations, individuals, associations, partnerships, in short, every conceivable combination of clients imaginable and many you probably would not like to imagine. Not one time in my career has a decision to represent a client been made on the basis of the category of the person.

This is the main reason why I would resent and resist the inclusion of additional categories of individuals or groups in an Oath of Admission. Is the list to be inclusive or exclusive? If the type of person coming to me is not listed by the Oath, does that mean I can discriminate based on that category? When does the listing of categories end? But from a more practical side, how do I determine that someone belongs to the suspect category in the first place? If a Black African American, Asian American or a Native American comes to me for representation, I might be able to determine his or her race. But if someone comes to me with a certain sexual orientation, how am I supposed to know this fact? Because the State Bar of Arizona puts a provision in the Oath of Office, does this now mean that I must ask my potential clients concerning their sexual orientation so that I can be sure that should the subject come up later in some context, that I will not discriminate against them? What if someone decides to change their sexual orientation after they have already become a client? Does that mean I have to conduct periodic interviews with my clients to determine if they are still Straight or whatever, just in case?

When Gays are seeking legal advice should they walk into the attorney's office and announce that they are Gay and ask if the attorney if that matters to the attorney or his staff? I do not recall ever having discussed the civil rights classification of any of my clients with anyone, would I now have to do so in order to assure myself that my staff was not somehow discriminating? Let's suppose that I have represented a client for a couple of years and we get into a dispute over billing charges, am I now going to be faced with an accusation that my billing practices are discriminatory when the client suddenly announces to me that he or she is Gay and that is the reason for my overcharges? In the vernacular of the day, give me a break.

This entire issue changes if the person seeking legal representation is asserting a claim based on discrimination in a particular category. For example, if an undocumented alien comes to me for help with immigration matters, what if I decline to represent the client by saying I don't represent illegal aliens? What if I don't happen to take discrimination cases at all? Would I be forced to take a case representing a Gay rights advocate in a discrimination matter when I have neither the background nor the expertise to do so? Why have a list of categories at all? What is the purpose to be served? Ethical Rule 1.1 of the Supreme Court of the State of Arizona (ER) says, "A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation." First and foremost attorneys must have the legal skill to represent their clients. The Comments to ER 1.1 indicate that a client should not represent anyone unless the attorney has the skill to do so or can acquire the skill through necessary study. But if an attorney cannot give the client adequate representation, they should decline to represent the client.

Fundamentally, as an attorney, I can refuse to represent anyone. In fact, I can resign from the practice of law and refuse to be a lawyer. I can also die anytime. (There has been some discussion about the personal liability of an attorney after his or her death, but I could never believe that the discussion was really serious). But once I undertake representation of a client, I can be penalized, sometimes severely, for failing to adequately represent that client. How does taking an Oath upon admission to the practice change that situation? I can also terminate representation at any time, for any reason. I may suffer the consequences if my termination is for the wrong reason, but, for example, if I suffer a heart attack and I am dying in the hospital, I can certainly send my clients to other attorneys for representation.

In all the discussion, so far, about the adoption of a particular category of interest into the Oath of Admission, there has been little public discussion of the need to add sexual orientation at all. Where are the examples of discrimination? From the amount of litigation going on in California over Proposition 108, it doesn't seem to me that the Gay community has any difficulty in obtaining legal advice and representation. So why is this now an issue, especially right after a very contentious election in which the issue was a major part of the campaign?

It appears to me that the issue before the Arizona State Bar Association, is a back-door attempt to begin to establish legal precedent. Not for the purpose of enhancing the practice of law, but for entirely other legal and legislative motives. It is a blatant move to influence the legal process into giving not just equal rights but a preferential standing to Gays under the law. Please refer to Self Evident Truths for a well written discussion of the difference between inalienable rights and Constitutional rights. Since this move by the Arizona State Bar Association comes at this time, during an ongoing national debate, it can only be seen as an attempt to politicize the State Bar. For this reason alone the suggested changes are objectionable. I am therefore specifically and categorically opposed to the addition of the language as presently proposed and as reported in the media.