The White Elephant in the Room

What is “whiteness”? Specifically, what is “whiteness” in America?

Superficially, relatively pale European skin color (in its diversity) may be the result of the interplay between melanin, Vitamin D and folate/folic acid. Melanin impedes Vitamin D production, but aids the production/retention of folic acid, both of which affect human development even prenatally. Environments with little sun (high latitudes) put the ability to produce Vitamin D at a premium, so a lack of melanin is especially helpful in the north. On the other hand in sunnier latitudes, where production of melanin is less critical, melanin aids in protecting folic acid production from the damage of the sun’s radiation. Accordingly, northern climes in northern Europe tend to be habitats of fairer-skinned people, the opposite near the Equator. The palest people on earth are clustered near the Baltic Sea. The arctic Sami in the Nordic countries are darker than, say, Lithuanians or Estonians to the south. Some have conjectured that the Gulf Stream and adaptation to agriculture led to a reduction to Vitamin D exposure, promoting over time even paler skin on the Baltic shores.

But we don’t care about “whiteness” primarily out of curiosity about fetal development, anthropology or evolutionary scientific hypotheses. “Whiteness” is at core about sociology and power politics, not the detail of skin color. White people do not lose their caste status as white people after a week of bronzing at the beach.

“Whiteness” got invented in multiple places where Europeans exploited people who were not and didn’t look European. It represented a sort of cartel between uneasy competitors. Like many cartels, sometimes the membership isn’t so stable. “Whiteness” was enshrined into the laws of the American colonies, and in the first Naturalization Act passed by the first U.S. Congress, barring “non-whites” from citizenship by naturalization. Legal “Whiteness” protected the early caste system of the United States that operated not only in “slave” states but allegedly “free” ones as well.

If you go visit the 1800s records of Germany or Italy, for example (those countries did not have those names politically in 1840) for evidence of “whiteness” in the records of the towns, you won’t find it. Those folks, including my German ancestors, identified themselves by birthplace, language, region, religion and social class. Their descendants came here, and became “white people” while giving up, to greater or lesser extents, their cultural heritages and identities, almost completely by the fourth generation (for German-Americans, often by the second generation.)

The important point about American whiteness as an identity is that it has essentially no substance that unites white people reliably AND distinguishes them reliably from designed non-whites, other than the “badges and incidents” of white privilege itself. “White people” aren’t a people with a culture; they are a caste. There’s no “white food”, “white music” (a few genres are much more popular with whites, but more on this later), “white religion.” There is no “white accent”, as one can tell by listening to Senators Ben Cardin (MD), Lindsay Graham (SC) and the late Ted Kennedy (MA) on YouTube and realize that these senators are of different religions, different regions, different accents but the same white caste in this country.

Some people might suggest that a few cultural artifacts, like hockey or country music or trips to Prague, are predominantly white entertainment or recreation, forming some basis for some “white culture.” The minor premises are true: marketing professionals will confirm that some cultural and non-cultural products are overwhelmingly white-bought/used/attended in the United States. But these artifacts are, in essentially every instance, sharply limited by class, subculture or region. One finds few hockey fans in Georgia, few country music buffs in New England and Long Island and Washington State, few aficionados of trendy European travel among blue-collar white people, even among those who might afford a longer, more expensive trip to Hawaii. Other cultural artifacts particularly popular among white-caste people have similar other limits.

What did Pee Wee Herman, Evel Knievel, the Lubavitcher Rebbe, Hillary Clinton, Flo from the 1970’s sit-com “Alice”, a white college student at the University of Washington, David Letterman, Klansman and neo-Nazi David Duke, Theodore Roosevelt and the author of this blog post have in common? All are “white by law” and de facto white by caste, the caste created before the founding to this Republic and reinforced by centuries of law, custom and individual and collective practice. All benefit from the violence, plunder, depraved indifference and hypocrisy of what some people call “white privilege.”

I don’t particularly like the term “white privilege” – the most common term for the peculiar institutions of white caste of this country, going back to 1650. “Privilege” is a semi-nice word. “I feel privileged to be here” is not a gripe but a statement of gratitude. In my law practice, I take pains to protect “attorney-client privilege.” The Constitution protects some “privileges and immunities.” It’s perhaps better than nothing, but the word “privilege” isn’t nasty enough to describe the nasty reality.

Theodore Roosevelt (may his name be blotted out) attacked corporations for collusion against the public in price-fixing, and declared war on them through enforcement of the Sherman Antitrust Act. Teddy Roosevelt never had the moral insight or character to declare war on white collusion against black American citizens in the U.S. South or elsewhere. Indeed, Teddy Roosevelt was an open and unapologetic advocate of explicit “race wars” by whites in America against Native Americans (expressing rough approval of the idea that the “only good Indian is a dead Indian”) and Filipinos. Roosevelt told black audiences that the “rapists and criminals” among them “did more harm to their race than any white man can possibly do them.” Roosevelt explicitly advocated that white people outbreed non-whites as a means of conquest so as to promote among whites “a clear instinct for racial selfishness.” White racist pathology, organized into the structure of an entire government and society, was the first “price-fixer”, and Roosevelt was among its bigger “big sticks”.

For his advocacy of criminality, war and injustice and the expansion of American empire, Roosevelt’s graven image appears for white people’s reverence carved at enormous expense into the side of Mt. Rushmore. May his name be blotted out by all who fear Justice.

A better term for the 350 years of white caste in this country is “white pathology.” People talk about “black socio-pathology” because of high crime rates and other admittedly serious social problems in many impoverished black neighborhoods. Yet what is more pathological than making peace with a history of murder, enslavement, sundown towns, theft, redlining, racist exclusion from unions, professional associations, licenses, housing, jobs, credit? What is more pathological than taxing people to make a monument to someone as atrocious, as hideous as Teddy Roosevelt? The answer, of course, is that white America sociopathically felt almost no guilt about its sociopathology or the conditions of black Americans even 40 years after emancipation. White people are not generally sociopaths, but white caste and white power have operated under a sociopathic model, and most white people don’t particularly give a damn about it.

The terms “white-race sociopathology” or “white American sociopathic politics” are clumsy but get the job done better than “white privilege.” Professor Robin DiAngelo has suggested the term “white fragility.” Lots of people who benefit from white caste don’t look particularly privileged materially.  Many whites are broke and REALLY hurting, and have been hurting for many years. But broke white people can count on knowing that America was built for them, for their caste and their children, for people who look like them, a few decades of civil rights statutes and economic growth in Black America notwithstanding. When white people hear “This Land is Your Land”, a folk anthem by self-described communist Woody Guthrie decrying inequality in the United States, white people aren’t generally thinking about non-whites.

White people got offered a fairly tough bargain: drop the culture of your parents and buy into American culture including America’s peculiar institutions of white sociopathy and you too can eventually enjoy white caste. White caste was not always fully open to all Europeans at all times.  Many might be surprised to learn that at different times and places in the US, Hungarians, Irish, Sicilians, Greeks, Arabs from the Levant and even perhaps surprisingly Swedes were distinguished from “white people” and excluded, at least partially, from white caste. I refer the reader to the scholarship of Noel Ignatiev and Robin D.G. Kelley for some of the history details.

White caste was fully open to Germans in Maryland.  My German (and, elsewhere, non-German) ancestors came here and eventually they and their descendants became white-caste Americans, retaining little more than the name “Rupp” from the old country. America made a hard bargain but it was in the end a bargain. Germans, white by US law, came and became white-caste Americans by the millions, both before and after the US Civil War.

My ancestors’ experience – coming into the port of Baltimore, meeting other German-Americans, buying a little farm land, starting businesses, becoming white-caste American people – was quite different from that of my friend and college roommate Professor Anton Treuer of Bemidji State University. His father escaped Hitler’s Anschluss of Austria by a few days, came to America and married Tony’s mother, an Ojibwe from a reservation near Bemidji MN. Tony’s father got white privilege here but spent much of his life undermining that privilege as a journalist and socialist activist. The Ojibwe and other native nations on this continent did not get white caste. Even the U.S. citizenship of Native Americans was in legal doubt for centuries.

There is much more to say about the history of white caste and Native Americans than what I, unstudied, am qualified to say.  I would refer the reader to Anton Treuer’s extensive scholarship. Tony’s life’s work has involved unwinding what violence and cultural extermination white sociopathology and its institutions infliction to the Ojibwe and other Native American nations.  Specifically Tony’s work involved preserving and promoting the Ojibwe language in immersion schools, scholarship, history, dictionaries, recordings and also in common parlance and commerce in Bemidji among Ojibwe and non-Ojibwe alike.  In other words, his work involves the direct rollback of aspects of white caste power, which was particularly oppressive against the Ojibwe of northern Minnesota.

Getting back to white caste. One of the effects of the size and wealth of the country’s white caste is the ability to live inside its boundary lines, economically, culturally, socially. The same white American folks who know a lot about Prague (today, perhaps, Warsaw, Istanbul, Bucharest) and wander its streets will often die knowing not a damn thing about Black American life. You can see it in my hometown Baltimore. When you saw the maps of the locations of the “riots” (some of which were bona fide riots, some of which were crimes short of riot and some were no crimes whatsoever), you saw clusters in west and northwest Baltimore and others on the east side, in a shape that looks roughly like a bow-tie. The MTA and mayor shut several metro stations down in NW Baltimore, turned them into “ghost stations” like those that existed in East Berlin after the Wall was built over the tunnels and split the city. Transit service on the largely white Light Rail, running north-south linking to predominantly white suburbs and skirting some of the city’s wealthiest neighborhoods, was unaffected. There were a few demonstrations in overwhelmingly white neighborhoods like Hampden, where white demonstrators challenged the City’s curfew. The Baltimore City police were much more polite in Hampden, in deference to white caste, than they were at overwhelming black Penn-North, where more direct and violent policing methods were employed. But most white people could avoid the “bow-tie” or “butterfly” entirely.

A personal, though perhaps trivial (you decide) example of living in a white bubble, was a comment that I made to a black friend in law school. He and I were coming out of the law school and we were discussing television. I mentioned that “Seinfeld” was a dominant program on Thursday night TV and a touchstone for the country. My friend patiently informed me that “Living Single” was much more popular among black Americans at the time, that “Seinfeld” was not particularly popular among black Americans. I then realized to my embarrassment that “Seinfeld” was set in New York, a city where white people were a minority, but on the show there were essentially nothing but white people. Even in New York, perhaps especially in New York, white people often live in a white cocoon. So can white law students in a city that’s 65% black.

One of the annoying things about white pathology is that white people tend to think of “racism” as something to do with a personal outlook. “I’m not racist,” comes the reply. That’s nice, and irrelevant. If the only contact that white people have with the peculiar race-caste institutions of this Republic is the opportunity to disavow “impure thoughts”, they prove rather than challenge the general point. “Racism” becomes a personal disavowal, like removing gluten from one’s diet: might be nice for your digestive tract but it doesn’t move the needle for the rest of the human race.

Black Americans (and others burned by white caste pathology in this society) aren’t trying to get validation and warm fuzzies from you or me or your or my racist uncle.  By and large, Black Americans are trying to design, build, operate and maintain their lives in a society that for most of its history has made doing all of the above very difficult or impossible. Many white people have maintained the conceit that they have a right not to be made uncomfortable about such discussions, not to have their consciences challenged. CS Lewis once wrote that the one sin that the devil could not make popular was cowardice, but the American white caste has proved him wrong.  Life involves conflict, and believe oneself to be exempt from the discomfort of conflict is, historically speaking, pretty peculiar.

Some will say that I am “bad-mouthing” America, and on the eve of Memorial Day, no less. I shrug my shoulders and invite critics to correct my errors and check my math. Some will suggest that America has been far less bad than many other societies in history. This might be true; our species does have a poor track record. The Byzantine emperor Basil the Bulgar-Slayer, upon defeating an enemy army of Bulgars, blinded 99% of the survivors and plucked one eye each out of the other 1%, leaving them to lead the other 99% back home to their king. Empire after empire in history has inflicted cruelty and mass killings,.  The Romans, Phoenicians, British, French, Chinese, Japanese, the Greek-speaking “Romanoi” of the Eastern Roman/Byzantine Empire, the Songhai, the Egyptians, the Sumerians, the Axum empire in Ethiopia, the Babylonians, Alexander the Great, Tamerlane, Genghis Khan, the Aztecs, the Third Reich, the Russian Empire and its successor Soviet empire. Perhaps others can grade the American Empire on the curve.

To its merit, the US has been more protective (though not absolutely so) of free speech and assembly than most of the societies named above, allowing for some better hope of civic remedies short of revolution, The US, at times, has ruthlessly suppressed free speech and assembly through, for example, COINTELPRO, the suppression of Native American languages and religion even by violence, FBI infiltration of political organizations, the bugging of both Martin Luther King Jr. and Malcolm X.  Even when we get a little bit exceptional, we find that we are not exceptionally exceptional.

Back to the central question: What is “whiteness”? The answer, counter-intuitive as it seems to people, is that American whiteness is as artificial as a silicone implant. It is as artificial as being “British” was in Philadelphia on the eve of Independence. It is as artificial as the Klingon language spoken on “Star Trek”. American whiteness got invented to protect the power and assuage the greed of slaveholders, who learned that they could not safely enslave Africans and others merely on the basis of being “infidels” (non-Christians.) Race and racial caste came to define life-time chattel enslavement in Virginia, my beautiful and beloved Maryland and elsewhere. White caste sociology and pathology remain to this day in the explicit political consciousness of some white-caste Americans (Rush Limbaugh, Jared Taylor of American Renaissance, Lee Atwater, David Duke, Chuck C Johnson come to mind (Author note: 2019 examples would include Steve Bannon, Tucker Carlson, Professor Amy Wax and occasional CNN commentator Richard Spencer) and in the implicit world views of perhaps most white-caste Americans, replete with some level of cognitive dissonance.

White-caste Americans should, if they actually believe the words of the Hebrew Bible “Tzedek Tzedek Tirdof“, reject as a criminal conspiracy, as illegitimate, what white-caste politics, sociology and institutions have done on this continent. We should be more fearless than were those who rejected British identity in Philadelphia, even at the cost of our lives, our fortunes and our sacred honor. Five million “taxed without representation” Americans resided in the colonies on Independence Day. 36 million black Americans, most the descendants of enslaved inhabitants of this continent, of persons taxed without the right to vote throughout the Jim Crow south, are better moral claimants for a moral revolution than were British subjects who shot hot lead into the bellies of British regulars in the American Revolution.

Who is a traitor, and who is a revolutionary? We generally do not call George Washington a “traitor”, though had the British Crown defeated the Continental Army there is a good chance that Washington would not have received from the British Crown the mercy that the United States showed to its enemies Robert E. Lee and Jefferson Davis. Washington and his army, with some key help, prevailed.  Washington’s face is on Mount Rushmore next to Teddy Roosevelt’s. Winning helps. What I advocate is unapologetic treason to what American history and present society has constituted as the American white caste – in a certain sense, “race treason” as an ethical obligation.

Caste/race treason requires white caste people in this country to face the fact that this country, like the fields and villages and shtetls of Eastern Europe, like the plains where Basil the Bulgar-Slayer plucked out 20,000 eyeballs of his enemies, is to some extent a crime scene. America is hardly unique in being a crime scene.   The human race has been horrible in its history. A small example with which to end: If you drive up Troyer Road (pronounced like the surname of my friend Anton Treuer mentioned above, but Anglicized by one of my fellow German-American white caste members or an immigration clerk) in northern Baltimore County near the PA line, you will pass by a crime scene. It won’t look like a crime scene, but a black American of my acquaintance lives on Troyer Road. He enjoyed success in business and other professional life, and purchased the specific parcel of land on which white caste pathology enslaved his very own ancestors, just below the Mason-Dixon Line.

Yet it doesn’t look like a crime scene.  It looks like a rather nice-looking fenced piece of rural property in northern Baltimore County, 25 minutes away from the nearest police station. Americans, including especially self-congratulatory white-caste Americans, are not exceptions to human nature in wanting not to face reality.

Unlike the Byzantine soldiers under Basil the Bulgar-Slayer, we seem at times to have plucked out our own eyes. It’s time to start seeing clearly, and to address with moral courage the aftermath of our bloody, or to admit honestly that we – those whose ancestors’ fateful choice to join the white American caste – in fact do not and never will give a damn about justice.  Either we can choose to see, or we can keep pretending that we have no eyes.

Unemployment Insurance, Baltimore Shutdown Edition

The following information may be useful for readers who live or work in or near the scenes of recent disturbances in Baltimore. By reading this, you do not become my client.  I might be suing you, and so I don’t want to become your attorney by you reading this. Statutes cited are from the Maryland Unemployment Insurance Law, Md. Code Ann. LE § 8-101 et seq.

1) If a worker loses her job because the business got burned down, can she get unemployment in MD?

Maybe. In general employees who lose their job “through no fault of their own” per the general language of § 8-102(c) are eligible if otherwise qualified and not disqualified for other reasons. Losing one’s job due to arson is an example of this, unless the worker purposefully or, perhaps, negligently burned or allowed to be burned her place of employment.

2) If a worker loses her job due to the curfew, can she get unemployment in MD?

Maybe. The curfew is a strong public policy in Baltimore City; people are being held in Central Booking for violating it right now (April 30). The question is very fact-specific. A bar might have to shut down if its customers cannot walk the street or its workers commute in or out. On the other hand, night-shift work is often 10PM-6AM, and the curfew might not affect those workers directly. Most workers are permitted to commute under the curfew, but curfew might interrupt other services necessary to the business or to getting to work (transit interruptions.)

3) If I get locked up, can I get unemployment?

Maybe, but it’s doubtful. While you are locked up, you cannot get unemployment for multiple reasons, most specifically because you are not “able, available and actively seeking work” while a jail or correctional facility is preventing you from working. If you get locked up and released, a lot depends on what led to the lock up and what happened after.

Whether getting locked up is either a form of “misconduct” (8-1002or a “voluntary quit” depends on the details. The Unemployment Insurance Division has opined that the mere fact of incarceration, without later conviction, does not constitute a “voluntary quit” from employment, provided that the worker notifies the employer. Lansinger v. Baltimore County Fire Department, 1305-BR-82. Whether workers locked up in Central Booking with dubious access to communications, per recent reports, would be excused from not contacting their employer immediately is debatable.

The other issue is whether getting locked up constitutes “misconduct” under § 8-1003 or, by analogy, related §§ 8-1002 or 8-1002.1 To effectuate a misconduct disqualification, an employer must fire a worker as a disciplinary response to misconduct, which is “a transgression of some established rule or policy of the employer, the commission of a forbidden act, a dereliction of duty, or a course of wrongful conduct committed by an employee within the scope of his employment relationship, or on the employer’s premises.” Hollenbaugh v. Whitcraft Transmission 1101-BR-85 If the firing is not the result of a disciplinary choice, or it is not “connected with the work”, it does not constitute a basis for a misconduct disqualification. The first duty of the worker, however, is to show up for work. The issue then becomes whether one’s misconduct that led to the arrest is sufficiently connected to the work, through the risk of arrest and schedule interruption, to constitute “misconduct connected with the work.” Since riot – the common-law charge under which many people have been charged or arrested in Baltimore – carries no maximum penalty, one who commits riot probably risks arrest, high bail ($500,000.00 in some recent cases) and indefinite incarceration in a way that constitute an act of misconduct connected to the work.

4) If I get fired for what I put on Facebook about the demonstrations, can I get unemployment?

Maybe. It’s illegal for an employer in Maryland to demand the passwords to social media accounts such as Facebook. However an employer is at liberty to read whatever is open to be read, and may take offense and even fire a worker for online (or non-online commentary.) The right of the employer under at-will employment to fire a worker is a separate question from whether a worker’s online activities constitute a transgression or dereliction connected to the work.

If your job relates to public safety, public health or administration, might be a good idea to run your actual and proposed social media feed by your own attorney before you make commentary.

5) What if I cannot get work for a while in the face of this unrest?

Unemployment lasts up to 26 weeks, depending on worker eligibility. Under some circumstances, workers may be eligible for extended unemployment benefits that are funded in part by Congress.

6) What if I have more specific questions about my eligibility?

You need to consult with an attorney. Some attorneys are working pro bono in the aftermath of the recent unrest. I cannot take on much pro bono work myself in my Montgomery County practice, but I would be happy to help pro bono callers get to pro bono resources in Baltimore and the surrounding area.


The Enneagram: the least likely most useful thing I have encountered….

By temperament and culture, I am not given to “new age” thinking. If it came out of California and it isn’t a pair of Levi’s, it starts out with two strikes against it. There are no crystals in my apartment, unless I am indulging a nerd toy of a crystal diode radio (soon to be harder to find, since Radio Shack seems to be circling the corporate debt drain.) We speak Nerd in the Godfrey household, militantly so; bury us with our 20-sided dice.

Perhaps the only inside joke that my children’s mother and I still treasure from our marriage was our disbelief at fellow B&Bers in Canada sitting around the breakfast table talking, in all seriousness, about their “kundalinis rising.” For me, and I think for her, it had about the same level of dramatic irony that pervades the most hilariously indecent of SNL skits, but no one was laughing except me and my then-pregnant then-wife (laughing on the inside, to be polite.) She was at that time religiously conservative, I a secular-minded Nerd, but we found common ground at our near-inability to keep from bursting out laughing hearing our fellow guests holding forth on how their kundalini would rise up from their insides.

It is with this hard-nosed, woo-hostile outlook that I encourage (especially to attorneys) an open mind toward a model of human personality known as the Enneagram of Personality, and to examine the evidence for it and against it.

No single blog post can do justice to this model, but in summary, the model posits nine (Greek: ἐννέα) personality types with certain strengths and weaknesses, very roughly as follows:

  1. The Reformer – someone with a sense of mission (examples: Confucius, Pope John Paul II, Meryl Streep, Jimmy Carter)
  2. The Helper – someone with a desire to be needed by others (examples: Leo Buscaglia, Pope John XXIII, John Denver, Elizabeth Taylor, Dolly Parton, Mother Teresa)
  3. The Achiever – someone ambitious and highly driven for advancement (examples: Augustus Caesar, Muhammad Ali, Bill Clinton, Taylor Swift, Barbra Streisand)
  4. The Individualist – someone sensitive and seeking identity/personal significance (examples: Edgar Allen Poe, Sarah McLachlan, Amy Winehouse, Billie Holliday, Janis Joplin, Marlon Brando, Prince)
  5. The Investigator – someone intensely cerebral, eccentric, isolated (examples: Albert Einstein, Mark Zuckerberg, Bobby Fischer, Ursula LeGuin, Jodie Foster, Jane Goodall)
  6. The Loyalist – someone oriented towards security and relief of anxiety (examples: Chris Rock, Richard Nixon, George H.W. Bush, Dustin Hoffman, Woody Allen, Sally Field, Jennifer Aniston, Ellen DeGeneres)
  7. The Enthusiast – someone extroverted seeking variety and new experiences (examples: Mozart, Richard Branson, Sarah Palin, Bette Midler, Robin Williams, Joe Biden, Timothy Leary)
  8. The Challenger – someone dominating, confrontational and decisive (examples: John Wayne, Dr. Martin Luther King, Jr., Roseanne Barr, Tony Soprano, Humphrey Bogart, Susan Sarandon, Serena Williams)
  9. The Peacemaker – someone easygoing, conflict-averse, supportive (examples: Ronald Reagan, Gerald Ford, Jimmy Stewart, Sophia Loren, Homer Simpson.)

The nine enneatypes are typically portrayed in relation to each other upon an “enneagram” – a geometrical figure of nine points on a circle connected with nine line segments of uneven lengths, representing the purported tendency of personalities at their highest and lowest points to take on some characteristics of other personalities. In some cases, personalities may be on the frontier between types; the model posits that some people may have a “wing” to any adjacent personality type (example: 5 with a 6 wing.) The personality numbers are arbitrary and are NOT intended to rank the enneatypes.

The enneagram and its associated personality models are the creations of G.J. Gurdjieff, Oscar Ichazo and Claudio Naranjo. Some have identified the roots of these personality types in early Christian mysticism and, per one account, even within Homer’s Odyssey among the hazards that Odysseus encountered. Those familiar with Catholic theology may be familiar with the concept of “predominant fault” – the tendency of people to do the wrong things again and again.

There is much more to discuss regarding this personality model, but for my purposes I will state that being able to figure out, reasonably quickly, which personality type I am dealing with has helped me immensely to predict conduct and avoid unnecessary conflicts, to be more forgiving of other people in my life and, unexpectedly, of myself as well.  (I am probably 5 or a 5 with “6 wing”, if it matters to the reader.)  For me, it’s a efficient shorthand, comparable to dividing politics into “left” or “right”.

Rather than indulging further discussion here, I would direct inquiring readers to take an enneagram self-test and see what you think of the results. A common result of taking the test and getting the results is something like “Oh God they really did nail me, didn’t they!” But don’t trust me: see for yourself.  Don’t trust me on this; test and see.

Mr. Boh Issues Press Release Denying Chechen Heritage

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Baltimore, April 20, 2013:  Mr. Boh, the icon of long-time Baltimore hometown brew National Bohemian, confirmed in a public statement that he is of Czech, not Chechen, cultural heritage.

“My ancestors came from west of Prague in Bohemia, in what is now the Czech Republic.  I have no connection to Chechen culture or Chechnya, though I hope God blesses those folks real good,” echoing the famous benediction of the late legendary former Comptroller of Maryland Louis Goldstein.  Mr. Boh reported that his ancestors included both Czech Bohemians and ethnic Sudeten Germans, and all enjoyed a crisp if pedestrian lager best served cold in section 34 of the former Memorial Stadium.

Mr. Boh declined to make comment about recent major events in Massachusetts, and departed the conference with his wife Ms. Hilda Mae Boh, formerly the “Utz Girl” Hilda Mae Utz of the Utz potato chip dynasty.

Personal – A big public THANK YOU to for their rapid and ethical response

As friends and colleagues may know, I am fortunate to have much good fortune in my life, what a religious person might call “many blessings.” My two sons, Sam and Noah, are both intelligent, playful and loving boys with smart-aleck senses of humor and a taste for the good old-fashioned tickle fight. They are also special education students who have diagnoses of relatively profound autism. Sam in particular is a lover of music and, after a prosperous month last year, my friend and the children’s mother Sunday Stilwell together bought the fellows each an iPad. (I don’t own one, but the fellows do.) Sam tends to use his for making and playing music while Noah tends somewhat more toward making art and watching an unbelievable volume of Dora the Explorer and Baby Einstein videos.

Due to some inadvertence, Sam managed this evening to crack the security measures on his iPad to keep him from buying, well, every iPad App in the App Store. And of course, when Sam went on his illicit buying spree, he plunked down a “buy” on the $999.99 ArtJam Universe music/video synthesizer (?) app from SoundSelecta. Sunday responded about the way you’d expect a reasonable human being to respond – with shock – but got it together and contacted both Apple and the publisher of the app. While Apple has not responded officially yet, SoundSelecta’s CEO Andy Richman has promised his full assistance in making sure that Apple and his company do not charge my boys’ mother $1000.00 for this purchase, and even offered a demo promo code to Sam for him to test the software out! (We will probably decline this exceptionally generous offer so as not to reward Sam for his 9-year old juvenile delinquent act of theft against his mother.)

A maximum “thank you” to Mr. Richman and the highly ethical SoundSelecta not only for approving this reversal but for doing so on a Sunday night on a holiday weekend (at least here in the States, as SoundSelecta appears to be headquartered in Canada.) Please go check out the company and the software; they deserve your respect and possibly your business if making music on your iOS is your entertainment. I certainly wish this company all the best.

Personal – A Big Thank-You to the Baltimore County Police Department

[A personal note from Bruce Godfrey below.]

On January 25, I (Bruce Godfrey) was robbed at gunpoint outside my home in Owings Mills.  Three men approached my automobile from behind and one banged a snub-nosed revolver against my driver side window.  The robbers robbed me of my cell phone and the cash contents of my wallet.  After the robbery, I gave extended statements to uniformed officers and detectives at Franklin Precinct in Reisterstown. The cell phone was one that I used heavily in my practice to assist clients, but was replaced reasonably quickly.

Within a week, three suspects were arrested and are being held on no bond now.  It appears that two other people in Owings Mills were similarly robbed, including one pedestrian who may have been physically battered (I was not.)  I do not wish to divulge further specifics of the case here, but the speed and efficiency with which the police acted really stunned me.  I was blown away by their professionalism and speed.  I am in awe, and I do not do “awe” very often.

My children live about a mile away from me with their mother not far from my law office.  While I would not likely have been out late with the children, there’s no reason why this assault could not have occurred with both of them in the back with their car seats.  That thought just makes me sick.

I need to something to thank the detectives and uniformed officers in this case, but I just don’t know what would be appropriate.  I am just so grateful.

– Bruce Godfrey, 4 February 2012

Contributory Negligence

There has been an interesting two-level debate in Maryland regarding the legal doctrine of contributory negligence.

What is contributory negligence?  Well, here it is in a nutshell.

Imagine you are in a car accident in Utah (not that I would wish such a thing), let’s say in a head-on collision.  You suffer $100,000.00 worth of extensive medical bills, lost wages, damages to your car, etc.  The other driver is drunk, driving at 70 miles in a 30 zone and is actively fleeing a cop.  You are driving at 33 in a 30 zone, per a speed camera over the intersection.  The case goes to jury and the jury finds that the other driver is 98% at fault and you are 2% at fault.  How much money should you get?

Well, in Utah – a state that rejected contributory negligence and uses a variation of the doctrine of comparative fault – you would get (I am informed) 98% of your damages because you were only 2% at fault.  So you get $98,000.00, not $100,000.00.  Essentially, your relatively minute fault affects your outcome in a relatively minute way.

In Baltimore or Silver Spring or Hagerstown or Ocean City, the outcome would be easier to calculate mathematically: you’d get nothing.  Your negligence contributed, however slightly, to the accident; you lose everything.

Maryland, a few other mid-Atlantic jurisdictions and Alabama are reportedly the only states to have retained this piece of the common law of England to this date; Texas, Utah, New Hampshire, South Carolina, Alaska and other conservative states are in a sense more “liberal” than allegedly liberal Maryland on this point.  Many attempts to conform this doctrine to the one of the various forms of comparative fault have met with absolute failure in the Maryland General Assembly.  There can be no doubt that some legislators are influenced by the hard-working lobbies that claim that Maryland’s economy would be ruined if it were to hold the same legal doctrine as New Jersey or Connecticut, two largely suburban and prosperous states fairly similar to Maryland in many ways.

Maryland’s Court of Appeals has fairly broad powers to develop legal doctrines consistent with the Maryland Constitution but has not been very aggressive historically in developing such doctrines.  A debate has arisen, however, as to whether modern life and modern automobile insurance economics justify a judicial re-writing of the common law on this point.  Note well that no statute discusses the topic; the doctrine of contributory negligence exists in court decisions that ultimately derive from the Maryland state  Constitutional doctrine of the right of the people of Maryland to enjoy the benefits of the common law of Maryland as it stood on Independence Day, 1776.

A Court of Appeals Rules Committee has opined (Daily Record paywall) that the Court does not have the power to change the doctrine of contributory negligence.  In my view, this is the proper ruling.  While I think that comparative fault is fundamentally fairer than contributory negligence in terms of the proportional justice, courts should not be in the business of acting as mini-legislatures, and should invoke their powers reluctantly in order to defend law, not to invent new law.  The General Assembly of Maryland is competent to address the issue of comparative fault and no fundamental legal principle such as equal protection of the laws, due process of law or separation of powers mandates the introduction of comparative fault (indeed, the imposition would probably constitute a violation of the separation of powers doctrine.)

That said, I hope that someday Maryland will be as progressive as Utah, Wyoming and Oklahoma on this issue.