Archives for posts with tag: philosophy

[G. Sallust, our reprehensible founder called the other day, and I was the one who answered the phone. So, being startled and at a loss for words, I asked the obvious question. “G,” I said, “you left us a while back to elope with a 19 year old; so how’s your sex life?” First he said nothing, then mumbled something that sounded like “not interested,” and “creepy old man,” then changed the subject. “There may be UFOs in New York,” he said, “and I want to look into it.” It seems that he read our post on printing money, especially the end part about watching the skies, and heartily agrees. The skies shouldn’t be left to NASA and DoD. We all need to be vigilant.

This is Fred, by the way. Normally UFOs are part of my beat here at the Zoo, but G. Sallust is the boss, even though many of us would rather not be seen in public with him, so he gets to go anywhere and discuss anything he wants. But there’s more to it than that. It – the UFO story – starts in Upstate New York, where he’s currently lurking, and he is our expert on what happens up there. That’s because he was raised in the area, and knows a little bit about the deep background of the locality: about the depressed economy, local native tribes, religious communities, witch covens, political movements, criminal enterprises and local oddities, plus the numerous local colleges, public and private; all percolating amongst the dairy farms and hollow cities. So I guess he’s the one best qualified to do our first report on who’s seeing UFOs today.]

You bet I am. But let’s start with today’s theme, which is watching the skies. It dates back to 1951, when Hollywood unleashed The Thing from Another World[1] on the American public. Wikipedia says it is “now considered by many to be one of the best films”[2]of that year and I’ll not dispute them on that. I searched for it on YouTube, and it no longer seems to be available as a free download, which implies that today it’s still worth something to somebody. Nevertheless the mantra of “watch the skies” was pretty common back in the 1950’s, and still resonates today. We were mostly looking for Russian bombers, but space aliens were always a possibility. You can see that if you take a look at a film clip that actually is available on YouTube, i.e., the one at

For a while the Air Force ran a program to investigate UFO sightings and perhaps uncover the truth about them. It was called Project Blue Book.[3] But that was discontinued around 1970 after publication of the so-called Condon Report.[4] Of course the Report didn’t actually disprove all such sightings. That would have involved proving a negative, i.e., that something [space aliens, interdimensional beings, etc.] did not exist. That’s hard to do, unless one can identify – conclusively – something previously unidentified. What the Report said, instead, was

“In our study we gave consideration to every possibility that we could think of for getting objective scientific data about the kind of thing that is the subject of UFO reports. As the preceding summary shows, and as is fully documented in the detailed chapters which follow, all such efforts are beset with great difficulties. We place very little value for scientific purposes on the past accumulation of anecdotal records, most of which have been explained as arising from sightings of ordinary objects. Accordingly in Section I we have recommended against the mounting of a major effort for continuing UFO study for scientific reasons.”[5]

The record was not useful. End of story, at least for the Air Force. Eventually private sources began to collect and report on the more recent sightings, the two most important sources currently being MUFON[6] and NUFORC.[7] These aren’t Government entities, of course; they’re enthusiasts, probably working as volunteers[8]; and mostly they take reports.

Now comes the good news!  Someone is analyzing the current data! I found this out from, of all places, the New York Times.[9] I know a lot of you don’t trust that paper but even today it’s full of reporters and occasionally they do turn up things which, mirabile visu, the Times reports! In this case it was a story about UFOs that’s datelined “Syracuse!” Then I looked a little further and found that Central NY also has a blog[10] that concerns itself with UFOs and their comings and goings. But for the Times, I wouldn’t have known any of that. And finally, there’s a book just out that analyzes UFO sighting data for the last 15 years.[11] Whose data? Why the sighting reports collected by MUFON and NUFORC.

So I ordered the book; it’s called the UFO Sightings Desk Reference[12] and I’ve been paging through it. It’s massive and very interesting. It says, for example, that annual UFO sightings have increased dramatically in the last 15 years, from 3479 in 2001 to 11,868 in 2015.[13] In total MUFON and NUFORC collected over 121,036 sighting reports over the sample period.[14] When you think about it, that’s quite a few, and they’re all eyewitness accounts. Are they all “vetted,” i.e. personally examined by somebody in MUFON or NUFORC? Not likely. The Government used to do that kind of thing back in the 1950s and 1960s, but gave that up when it ended Project Blue Book. MUFON and NUFORC vet reports from time to time, but lack the resources to do it consistently. That would require an “army of volunteers” that currently doesn’t exist.[15]

Nevertheless, the numbers are interesting. They’ve gone way up in the last 15 years. If somebody decided to look at the underlying reports, would that disprove all of them? Probably not. Does that mean some of them are true? No. Most likely it would mean that there’s not enough evidence to decide one way or the other. It’s like the search for extraterrestrial life in general. Absence of proof [that such life exists] is not proof of its absence. It’s not proof that it exists, either. It simply means that we have to look further to decide.

Now let’s get back to the data, unreliable as it may be. In general UFO sightings are trending up, dramatically up; but the trend isn’t uniform; some states lead the pack, like California, which has had a 15 year total of 15,836 sightings;  followed by Florida [7787], Texas [7058], Washington [5226], Pennsylvania [5176], New York [5141], Arizona [4726], Illinois [4191], Michigan [4160] and Ohio [4115].[16] But that’s not nearly as interesting as what’s happened in small parts of individual states. You see, Costa and Costa also break out their data by county, and some of those seem to be virtual beehives of UFO activity.

Take, for example, Onondaga County in Upstate New York, where the authors live. [It’s named after the Onondaga Nation, one of the six tribes of the Iroquois Confederation.] Anyway, the county started in 2001 with 3 sightings, and eventually progressed to 29 in 2015. Sightings for the past 5 years have been 14 in 2011, 18 in 2012, 22 in 2013, 21 in 2014 and, of course, 29 in 2015.[17] That’s a lot for a small area.

It seems to me that, with all the advances in recent decades made in sensor technology, we ought to be able to solve the problems that government investigators had in Project Blue Book. Instead of going in after-the-fact to study events, today our Government ought to select 5 or 10 areas that are known hotbeds of UFO activity, like Onondaga County; blanket them with the latest sensor technology; and wait to see what turns up. Because we’d be setting up in advance, rather than after the fact, we could lay careful plans and use anything that might work: spy satellites; airborne reconnaissance [e.g., loitering drones]; ground sensors and even stuff we haven’t heard about yet. The public doesn’t need to know what’s deployed; just that the Government is back on the job. Details of the effort should be highly classified.

Anyway, that’s my modest proposal to repel UFOs and other night-time intruders. And please don’t thank me, all of you residents of Onondaga County! I’m just trying to keep us safe.

[1] Wikipedia does a good job with this kind of thing, so for more information check out its piece on the movie at .

[2] Id at Critical and box office reception. See also the Internet Movie Database at for a somewhat unenthusiastic posting about the Thing from Another World. It’s at

[3] Wikipedia has a good piece on Project Blue Book. It’s at

[4] If you’re interested, a copy currently is maintained on the internet by NCAS [National Capital Area Skeptics] at . The official citation for the report would be, I guess, Condon,  Scientific Study of Unidentified Flying Objects, Conducted by the University of Colorado under Contract No. 44620-67-C-0035 with the United States Air Force (1968).

[5] Id. at Conclusion, p. 67.

[6] That’s the Mutual UFO Network, at .

[7] That’s the National UFO Reporting Center at  .

[8] Don’t hold me to that. This is America, after all. No doubt somebody is drawing a salary.

[9] See New York Times, Blumenthal, People Are Seeing U.F.O.s Everywhere, and This Book Proves It (April 24, 2017), available at

[10] The blog is called New York Skies, and it’s hosted by the Syracuse New Times at

[11] It’s Costa & Costa, UFO Sightings Desk Reference: United States of America 2001-2015 (March 24, 2017). I bought our copy from Amazon, where else? I found it at

[12] See Costa & Costa, UFO Sightings Desk Reference, United States of America 2001 – 2015 (Dragon Lady Media 2017), hereafter cited as Costa & Costa at __.

[13] See Costa & Costa at p. 5.

[14] See Costa & Costa at p. 1, 121,036 Eyewitness Accounts.

[15] See Costa & Costa at p. 21.

[16] See Costa & Costa at p. 7.

[17] See Costa & Costa at p. 240.


By the time the scherm[1] was finished the moon peeped up, and our dinners of giraffe steaks and roasted marrow bones were ready. How we enjoyed those marrow bones, though it was rather a job to crack them! I know of no greater luxury than giraffe marrow, unless it is elephant heart, and we had that on the morrow. We ate our simple meal by the light of the moon …

H. Rider Haggard[2]

That’s disgusting!

G. Sallust[3]

 [Sometimes I just don’t understand this place. Here am I, the blog philosopher; as such I’m supposed to be the conscience of this outfit, empathic and sensitive to everyone’s needs. So when I pick a quote that’s offensive, or possibly even revolting, you can be sure I didn’t do it just for the shock value. There’s a higher purpose, usually to educate, and that was my reason for choosing Mr. Haggard as our guest moralist. People back in the 19th Century didn’t necessarily think about things the way many of us do today. Take hunting, for example. Our ancestors knew it was a bloody business, and often they made a virtue out of that. Rider Haggard’s description of eating giraffe marrow and elephant heart in the African bush is almost poetic.

Today, of course, many think meat comes from the super market, wrapped in plastic, rather than from animals, and are offended when someone points out the obvious. Forget the plastic; we still get our meat from things that move and make noise. Perhaps someday test tubes will substitute,[4] but not yet. The people who work in our slaughter houses and meat packing plants already know this. The children of our middle class and other hyper-civilized folks should learn it too.]

Death & Dying

I got to thinking about this the other day when I stumbled across a bunch of odd news reports. Or perhaps they’re not odd, but common, and I just hadn’t noticed their kind before. Anyway, the stories were about animals and what happens to them. As you may know – we’ve talked about it before – the folks in Venezuela are suffering rather badly right now because their economy is on the rocks. I won’t get into why that’s the case – lots of people have opinions and most of them are better grounded than mine – but the signs are that the people are hungry, don’t have enough money for food, and forage to supplement their diets. Local wildlife, such as pink flamingos and giant anteaters, find their way on to local tables, along with dogs, cats and donkeys.[5] That was the same day I learned monkeys were falling out of the trees near Minas Gerais, Brazil, due to an epidemic of yellow fever. The disease also affects local humans.[6] And finally, there was the woman caught on an aircraft recently with 22 pounds of raw animal brains.[7] She was bringing them in from El Salvador.

Granted these are only anecdotes from one day, but they have three things in common: (i) animals died in greater numbers than normal, but (ii) not in the normal way, i.e., not on farms or in meat packing plants; and (iii) humans were responsible, either as hunters or disease carriers. The sample was too small to really tell anything about trends, so I looked further.

And I found a lot.  There was a mass fish die-off in California in 2011.[8] Fish had died and birds were falling in Arkansas.[9] Pesticides may be killing our honey bee population, or it may be something else.[10] Nevertheless, the bees are dying. A White Nose syndrome is striking bats, leaving a fungus on their noses, wings and bodies, and eventually leading to starvation. The syndrome kills millions.[11] One year a virus killed over 6 million baby pigs, and bacon prices rose.[12]  And so on, and so on, and so on.

A Recent Study

It turns out that it’s not unusual for animals to die in quantity, but it’s happening more often.[13] How do we know this? Well, National Geographic reports it,[14] but, more importantly, there’s a study put out in the Proceedings of the National Academy of Sciences that says the same thing,[15] but with greater rigor.

  • The report deals only with “Mass Mortality Events” (MMEs). MMEs are “rapidly occurring, catastrophic events that punctuate background mortality levels.”[16] They stand out because of the sheer size and intensity of the dying. “Individual MMEs are staggering in their observed magnitude: removing more than 90% of a population, resulting in the death of more than a billion individuals, or producing more than 700 million tons of dead biomass.”[17]
  • The authors believe their report is the “first … quantitative analysis of MMEs across the animal kingdom and, as such … [explores] novel trends, patterns and features associated with MME’s.”[18]
  • Reports of MME’s increased during the period studied. The question is whether actual MME events increased, or the reporting of them simply improved. The authors conclude that both are the case. Reporting was spotty in the 19th Century, but has been much more consistent since the 1940s. Nevertheless, “more than half the variation … in changes in the occurrence of MME’s through time was not explained by increases in publication output alone.”[19] So MME’s – inherently catastrophic events – increased over time.
  • The report focuses on MME’s in the animal kingdom. If there’s a horserace – my bad metaphor – one might say that currently fishes are the “largest contributor of reported MME’s;[20]” amphibian and reptile MME’s increased sharply beginning in the 1970s, but recently declined; and the same can be said for birds and mammals.[21]
  • These events also vary in size. “[M]agnitude increases for birds, marine invertebrates and fishes; remains invariant for mammals; and decreases for amphibians and reptiles.”

What to Do

Frankly, I don’t know what to do. It can’t be good that so many things around us are dying before their time, and while the picture is mixed, the overall casualty rate seems to be increasing. My personal preference is to learn more about what’s going on and put a stop to it.

My guess is that nobody powerful in today’s world will want to do that. What’s happening is simply creative destruction, the economists would say; it’s natural, so let it continue. It would be sinful to interfere. And, by the way, we’ll all be better off when that superfluous life disappears. Only then does it stop competing with the rest of us for resources.

Just kidding, Mr. Panda.



[1] “Scherm” is an old word, not much used today. It means “A screen or barrier constructed of brushwood or the like, to serve as a protection for troops, as an ambuscade from which to shoot game, or to prevent cattle from straying.” If you have an old word, we have the old book to define it.  See The Compact Edition of the Oxford English Dictionary, Complete Text Reproduced Micrographically (Oxford 1971), at p. 2664, scherm.

[2] See Haggard, King Solomon’s Mines (1885) (Octopus edition, 1979) at p. 39.

[3] G. Sallust is our disreputable founder, who comments and criticizes even when he’s not here.

[4] See Huffington Post, Gebreyes, How Lab-Grown Meat May Change Our World (11/24/2015), available at

[5] See Fox News, O’Reilly, Venezuelans killing flamingos and anteaters to stave off hunger amid mounting food crisis (February 10, 2017), available at

[6] See The Washington Post, Reuters, Yellow Fever kills 600 monkeys in Brazil’s Atlantic rainforest (February 10. 2017), available at

[7] See Dallas Morning News, Dallas News, Woman smuggling animal brains in luggage detained at DFW airport (Feb. 10, 2017), available at

[8] See CBS Live, CBS/AP, Mass fish die-off in Southern California (March 15, 2011), available at

[9] See CBS News, CBS/AP, First Falling Birds, Now Dead Fish in Arkansas (January 3, 2011), available at

[10] See CBS News, CBS/AP, What’s killing the honey bees? Mystery may be solved (May 14, 2014), available at

[11] See CBS News, CBS/AP, Dying bats called No. 1 mammal crisis in U.S. (July 12, 2011) available at

[12] See CBS News, CBS/AP, U.S. bacon prices rise after virus kills more than 6 million piglets (April 8, 2014), available at

[13] See CBS News, Schupak, Mass animal deaths on the rise worldwide ( January 16, 2015), available at

[14] See National Geographic, Lee, Mass Animal Die-Offs Are on the Rise, Killing Billions and Raising Questions (January 14, 2015), available at

[15] See PNAS, Fey, Siepielski et al., Recent shifts in the occurrence, cause, and magnitude of animal mass mortality events (January 27, 2015), available at

[16] Id. at p. 1083.

[17] Id.

[18] Id. at Significance

[19] Id. at p. 1084, Results and Discussion

[20] Id. At 56% of all reports.

[21] I’m grossly oversimplifying this. Take a look at the bar charts at p. 1084 to get a more accurate picture

Artificial intelligence will reach human levels by around 2029. Follow that out further to, say, 2045, we will have multiplied the intelligence, the human biological machine intelligence of our civilization a billion-fold.

Ray Kurzweil[1]

[This is Phil, blog philosopher and occasional commenter on technology, science fiction and the scientific method. Fred called the other day, much disturbed; he’s been looking at the research programs of our country’s much esteemed Defense Advanced Research Programs Agency [DARPA], and he’s found worrisome things and trends. Of course there’s always reason to worry when the human animal tries something new; that’s evolution, I guess. First we had antibiotics, now we have antibiotic-resistant bacteria. Then we developed nuclear power, and early-on found a way to make it go bang! But despite our valiant efforts – remember the “Atoms for Peace” program?[2] – its peaceful uses are few, expensive and often dangerous. If you don’t believe me, reflect for a moment on Chernobyl,[3] and the more recent experience of the Japanese.[4] Does anyone want to do that again?

Anyway, recently Fred sat me down for several hours and explained his views on robots and their danger to us. I was impressed, and asked him to pen a blog for us, but he’s very busy right now; so I agreed to write it for him. I don’t necessarily agree with everything he says but, as usual, he’s interesting.]


Antibiotics and nuclear power are old news. Fred’s more concerned about the new stuff, that is, about the startling progress we’ve made in building machines that mimic, or duplicate, human mental processes. Of course, people have always worried that one day mankind might create something that might destroy us. Mary Shelley’s Frankenstein is an example of that. Shelley’s monster was a human-like thing made up of sewn-together body parts robbed from graves. The Terminator movie franchise is a bit more modern but essentially the same, except the monsters aren’t biological; they’re essentially an outgrowth of modern computer technology. If I recall correctly, the terminators are part of a computerized defense system that goes rogue.

So you can see why Fred might be concerned. He’s read quite a bit of sci-fi, as have I, and the rebellious robot is a favorite meme of the genre.[5] And Fred’s not the only one to be concerned. Stephen Hawking, for one, has warned that developing artificial intelligence might be very bad for humanity.[6] And reportedly Bill Gates, of Microsoft fame, has said pretty much the same thing,[7] and so has Elon Musk, the guy behind Tesla cars.[8] These people know a thing or two about intelligence, human or otherwise.

The Three Laws

Fred says, truthfully, that robots in literature are not always hostile. His favorite examples of non-monster robots are the ones portrayed by Isaac Asimov in a series of novels he began in the 1950’s. Asimov posited a future in which the vast majority of humans were trapped on a badly overcrowded planet Earth, while a minority had escaped to 50 nearby star systems. The off-planet settlers had technology superior to that of the home planet, so much so that it allowed them to develop “humaniform” robots, i.e., ones that substantially mimicked human beings

Asimov’s first three “robot” novels[9]dealt with the efforts of an earth detective and an off-planet robot to solve a series of murders. It’s entertaining but, more to the point, it deals at length with the interaction of a human with a robot, and suggests a set of controls humans might impose on their mechanical friends. These are, in order of priority, that (i) a robot shouldn’t harm humans, (ii) should obey the orders of humans, and (iii) should protect its own existence.[10] They’re also known as Asimov’s Three Laws of Robotics.

Asimov’s first robot novels were written 50 or more years ago. Neither Fred nor I know how he proposed to educate a robotic “brain” to accept such limitations, but today Fred sees the “three laws” as software that should be added to the programming of autonomous machines. The problem, he says,  is that DARPA is doing a lot of good work in creating devices, etc., that mimic human functions, but apparently nothing to add a conscience to them.

The DARPA Programs

Some of these projects are astonishing. There’s one, for example, aimed at developing communication devices [aka radios, etc.] that will operate at any time or place, and under any conditions. DARPA calls this Adaptive RF Technology [ART], [11] and pretty much implies that the adjustments will be made automatically when necessary, i.e. without human intervention. That would be useful, I suppose, if one is operating a drone from a distance. The drone is on the spot, knows the local conditions, and would be much more useful if it had a “cognitive” radio that could solve communications problems, rather than rely on a remote human pilot to do the job.

Then there are the machines, etc., that will do the same things humans do, only better and faster.  In the Cyber Grand Challenge, for example, DARPA sponsored [sponsors?] “a major competition to develop advanced autonomous systems that can detect, evaluate, and patch software vulnerabilities before adversaries have a chance to exploit them.” Why should machines do this sort of thing? Well, because humans just aren’t fast enough. [12]  But the humans at this stage are very much involved in designing their own successors. 

Or, on that same theme, consider model-making. That’s the kind of thing that economists and other people do to make sense of voluminous data and, incidentally, also to make a living. The people on talk radio, of course, use very simple models, usually something like, “if supply goes up, then, then prices will go down,” completely ignoring the many other things that might affect price. DARPA says, we humans are awash in data but “what’s missing are empirical models of complex processes that influence the behavior and impact of those data elements.”  At the end of the day, it’s really difficult to create good models that reliably predict things that actually happen. So how do we solve that problem? DARPA has an answer – its Data Driven Discovery of Models program – which will free us from all that drudgery. [13] Using artificial intelligence, it will analyze data and develop models for us.

Then there’s the astonishing work being done in creating artificial limbs for the injured. Versions currently in production are battery powered, of “near natural size and weight,” and allow for “extremely dexterous” arm and hand movement. [14] Also we’re learning how to convey touch and pressure through these things[15] and are experimenting to develop one that can be controlled by the user’s brain. [16]

This information comes directly from DARPA, mostly in the form of news releases. One of the odder ones deals with a separate program to develop self-healing construction materials. DARPA is now studying the use of living materials – ones that can be grown and regenerate – for these purposes. “DARPA is launching the Engineered Living Materials (ELM) program with a goal of creating a new class of materials that combines the structural properties of traditional building materials with attributes of living systems ….”[17] Could this line of research also lead us to materials that might be incorporated into machines, say cars, drones and robots?

Protecting Us from Our Creations

I suppose you can classify that last paragraph as speculation, but the greater point is not. Our scientists experiment with artificial intelligence, and are making great progress to boot.  They’re developing autonomous machines – ones that can operate on their own[18] – and giving them mental capabilities that in some cases exceed those of ordinary humans. Others are working hard to fabricate artificial limbs for the wounded, but the same technology might be adaptable to other platforms, i.e. to mobile robots. Add construction materials to the mix, and it’s not impossible to believe that someday you and I might be dealing with mobile, bi-pedal, autonomous robots. Ask Arnold Schwarzenegger; he’s already been there in the Terminator movies.

If such things are possible, why aren’t scientists also working on ways to protect us from the occasional wayward or hostile robot? Why isn’t somebody experimenting with, for example, a software version of Asimov’s Three Laws? I can think of one reason, of course; a lot of the current development work is being done by the military who, of course, primarily are interested in technologies that will neutralize an enemy. Pacifist robots – ones that won’t harm humans – probably aren’t in any military organization’s R&D[19] budget.

So could private industry do this kind of work? That is, develop a software conscience for intelligent machines, so that they don’t turn on their human creators? Certainly that could be a selling point for some products. Someone who buys an intelligent, self-driven car, for example, probably would like to know that the vehicle won’t go homicidal. Asimov’s Three Laws are tailor-made for that situation.

Nevertheless Fred wouldn’t rely on private industry to do this kind of work unless somebody paid them to do it. Modern companies don’t have a budget for pure research. Their focus is too short-term, on the next quarterly earnings report; not on the long view. He would rather enlist the aid of Bill Gates, Warren Buffett or other proven philanthropists to fund and oversee the work that needs to be done. Fred says he would be happy to set up and manage such a program, if somebody wants to support it.

Fred’s ideas often are weird, but he has a winner here. In my humble opinion.

[1] Ray Kurzweil is an inventor, computer scientist, author and general commentator on things cybernetic. Wikipedia has an entry on him at . The quote is from Brainy Quote at

[2] Probably not. Check out Wikipedia at  for a refresher.

[3] Want to know more? Check out the Wikipedia article on the Chernobyl disaster, at

[4] Wikipedia does a fairly good job on this as well. Its article is at

[5] Oh, look: fancy words! A “genre” is a specific category of music, film or writing. Today science fiction is recognized as a “genre.” See, e.g., .  A “meme” is basically a story-line.

[6] See Daily Mail, Zolfagharifard , Artificial intelligence ‘could be the worst thing to happen to humanity’: Stephen Hawking warns that rise of robots may be disastrous for mankind ( 2 May 2014), available at

[7] See, e.g., Sunday Express, Dassanayake, Bill Gates joins Stephen Hawking in warning Artificial Intelligence IS a threat to mankind (Jan. 29, 2015 ) available at

[8] Id.

[9] The first book in the series is called I Robot. Actually it’s a series of short stories, not a novel. The next three are novels. If you want to know more, you can always read the books. Otherwise check out Wikipedia at . It’s more or less correct.

[10] Wikipedia also discusses the Three Laws.  See   The “laws” are: (i) A robot may not injure a human being or, through inaction, allow a human being to come to harm. (ii) A robot must obey the orders given it by human beings except where such orders would conflict with the First Law. (iii) A robot must protect its own existence as long as such protection does not conflict with the First or Second Laws.”

[11] DARPA, Rondeau, Adaptive RF Technology (ART), available at  “ART-enabled “cognitive” radios would be able to reconfigure themselves to operate in any frequency band with any modulation and for multiple access specifications under a range of environmental and operating conditions.”

[12] DARPA,  “Mayhem” Declared Preliminary Winner of Historic Grand Cyber Challenge (8/4/2016) available at

[13]See DARPA, DARPA Goes “Meta” with Machine Learning for Machine Learning (6/17/2016), available at  .

[14] DARPA, DARPA Provides Mobius Bionics LUKE Arms to Walter Reed (12/22/2016),   available at

[15] DARPA, Neuroscience of Touch Supports Improved Robotic and Prosthetic Interfaces (10/26/2016), available at

[16] DARPA, DARPA Helps Paralyzed Man Feel Again Using a Brain-Controlled Robotic Arm (10/13/2016), available at

[17] DARPA, Living Structural Materials Could Open New Horizons for Engineers and Architects (8/5/016), available at

[18] Actually we did a blog on that a while ago. See the blog of 2016/09/07, Autonomous Weapons, available at .

[19] That’s Research & Development, sometimes also known as RDT&E {Research, Development, Test and Evaluation].

First of all, the Big Bang wasn’t very big. Second of all, there was no bang. Third, Big Bang Theory doesn’t tell you what banged, when it banged, how it banged. It just said it did bang. So the Big Bang theory in some sense is a total misnomer.

Michio Kaku[1]

No, no! Don’t talk about the big bang! Talk about the bang a gun makes when someone pulls the trigger! That’s your topic!

G. Sallust[2]

OK, this is Larry, and G. Sallust has asked me to talk about guns or, to narrow the focus a bit, about when our police can shoot them at civilians and possibly get away with it. While not common, police shootings are headline events when they occur and the reporting is not always, shall we say, accurate. So I thought this might be a good opportunity to talk about the rules that apply to you and me, and to the police, and how they might differ. This little dissertation is for information only; it’d not for me to decide what the rules ought to be. I leave that to the courts, our legislators, whoever they might be, and the voters. I’m just trying to tell you, as of now, the way things are.

Self Defense

Let’s start with self-defense. As you’ve probably heard, people have a right to defend themselves when they reasonably believe their life is threatened and there’s really no way to escape. This is generally a matter of state law. Some states want you to retreat, if possible, when threatened; others say that you can “stand your ground,” but can react, again, only if you are reasonably afraid for your life. In either case, I think, if an aggressor has you on the ground, and is beating you mercilessly, and you have a gun, probably you can draw it and fire. At least that’s what I think. But this is just my opinion. Check with a local attorney if you want to know how things are where you live.[3]

So what rules do the police follow when they’re enforcing the law? Can they fire only in self-defense, and must they retreat to the wall; or does their job allow them to do more? Good questions all, but the big difference between them and us is that, for the most part, they can’t be sued by grieving relatives, etc., when they make a mistake. Today I’m going to focus on why that’s true, and what the exceptions might be.

Sovereign Immunity

There’s a hoary old rule that says our various governments, federal and state, are sovereigns immune from suit.[4] “Generally, the idea is that the sovereign … is immune from lawsuits or other legal actions except when it consents to them.”[5] The federal government seems to get this immunity through tradition and judicial precedent. The states get theirs in part because their immunity, it’s said, is guaranteed by the 11th Amendment to our Constitution.[6]

But, of course, nothing in the law is quite that simple. The Federal Government, for example, has waived its immunity from suit in a wide range of personal injury and other tort suits.[7] A tort is a civil action, usually for money damages, to remedy a civil wrong. [“A tort is an act or omission that gives rise to injury or harm to another and amounts to a civil wrong for which courts impose liability.”][8]

OK, suppose the Government is, in fact, immune from suit in a specific matter, can a person aggrieved sue the Government employees instead? That’s another good question, and the answer has “evolved” over time. At least that’s what I would call it. At the Federal level it’s always been clear that the President couldn’t be sued; after all, he is the head of the whole shebang, and the closest thing we have to a king. So who else should be privileged against suit, and why should that be?

Well, back in the day the Supreme Court ruled several times on that question. It found that judges acting as judges were privileged[9], as well as others engaged in the judicial process[10]; that the Postmaster General was similarly privileged[11]; and even the Acting Director of the Office of Rent Stabilization, when that entity existed.[12] Why?

The reasons for the recognition of the privilege have been often stated. It has been thought important that officials of government should be free to exercise their duties unembarrassed by the fear of damage suits in respect of acts done in the course of those duties — suits which would consume time and energies which would otherwise be devoted to governmental service and the threat of which might appreciably inhibit the fearless, vigorous, and effective administration of policies of government.[13]

So these people had an “absolute” privilege, i.e., simply couldn’t be sued for performing their duties. They needed to be insulated from civil liability so that they could do their thing in a “fearless, vigorous and effective” way. But what about lower level officials, say law enforcement types? Are they also privileged, to act with impunity? How about if they violate the U.S. Constitution?

The Fourth Amendment

For these purposes let’s treat federal and state law enforcement as the same thing. Both are bound, theoretically at least, by our Constitution. So what part of that document are law enforcement people most likely to infringe upon? My guess is the Fourth Amendment. That’s the one that says:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.[14]

Back in 1971 a very interesting case was decided that stated, apparently for the first time, that a citizen can sue federal agents personally if they violate his [or her] 4th Amendment rights.[15] That is, the Court ruled that citizens have a cause of action under the 4th Amendment; they can raise it in federal court; and the courts have jurisdiction to hear it. That was all well and good, and certainly was ground-breaking at the time. The decision recognized a “constitutional tort”; but the Court didn’t decide whether the defendant agents could assert sovereign immunity as a defense. It remanded that particular issue to the lower courts for further consideration.

Absolute Immunity

So here we are, back with sovereign immunity. Most of the early cases we discussed dealt with the “absolute” immunity enjoyed by government officials who were more or less high up in the bureaucratic food chain. If one is “absolutely” immune, it sounds like there are no exceptions. Hold the job, and get the immunity. These days, however, there’s a new kind of immunity out there – the “qualified”- kind, that the courts seem to prefer.

The recent trend seems to be that even high officials get only qualified immunity. I realized this a few years ago when I read a case involving John Ashcroft, Attorney General under President George W. Bush[16]. Mr. Ashcroft was taken to task for his liberal use of the “material witness” law after the terrorist attack of 9/11; he detained some people even though [apparently] he didn’t intend to use them at a trial, on the mistaken theory that he could do so in an emergency. He argued that he was entitled to absolute immunity, but the Court found he was protected by the “qualified” type, and there was no need to look further.[17] The Court had no opinion as to whether Mr. Ashcroft also had absolute immunity against civil suits.

What standards govern qualified immunity? It just so happens we have some recent new wisdom from the Supreme Court on that very issue.

Qualified Immunity

If an individual is immune from suit, that means he [or she] can’t and shouldn’t be sued. Any suit filed should be dismissed even before a trial. Trials are lengthy and burdensome to the defendant, and if he [or she] is immune from suit, they serve no purpose. The Supreme Court says qualified immunity is important to “society as a whole,” presumably because it helps those who enforce our laws. It’s “effectively lost if a case is erroneously permitted to go to trial.”[18]

No doubt that’s a good thing for the employee, to be immune from suit. Certainly I agree. But if the immunity is only “qualified,” what does that mean? Basically qualified immunity attaches, and the police are immune from prosecution for doing their jobs, so long as (i) they don’t “violate clearly established statutory or constitutional rights” that (ii) a reasonable person would have known about. [19]

  • The test is that the civilian’s rights must be “clearly established,” not debatable; if there is a dispute about the law, “existing precedent must have placed the statutory or constitutional question beyond debate.”[20]
  • In short, the immunity protects “all but the plainly incompetent or those who knowingly violate the law.”[21]

The Court also says that it doesn’t want to get involved with glittering generalities to determine whether this or that asserted right is “clearly established.” Such law should not be defined at a high level of generality.”[22] Rather, it must be “particularized” to the facts of the current situation. I think that means there should be well-known and established precedents applied to similar fact patterns. If they exist, and are relevant, and show a consistent pattern of interpretation, then they pretty much define what’s “clearly established.”

To allow a more generalized analysis, say retreating to first principles, etc., would allow plaintiffs to advance all kinds of new theories. While they are new, and might be accepted someday, such theories are not “clearly established” when it matters, i.e., when whatever happened actually happened. Also, new legal theories probably aren’t the kind of thing the average trooper, etc. would know about.

So the Court wants to see precedents on topic when it looks at whether a government employee has violated a “clearly established. To do otherwise would allow plaintiffs “to convert the rule of qualified immunity . . . into a rule of virtually unqualified liability simply by alleging violation of extremely abstract rights.”[23] Lawyers [and politicians] like to do that kind of thing, but it looks like the courts won’t let them in these cases.


So have I answered your question about how and when law enforcement may be held responsible when they make mistakes in policing your area? When they shoot somebody, for example? I’m afraid not. All I can say is, when you read a story about that kind of thing, you need to ask yourself, or the person reporting it, what law [or Constitutional provision] was violated, and is it “clearly established” in some specific way? And (ii) do the law enforcement types involved look plainly incompetent or willfully violent?

And what about you, as a citizen? What if you defend yourself and shoot somebody? Well, unlike law enforcement, you don’t have any immunity, absolute or qualified. So even if you’re innocent, you’ll probably have to put up with a lengthy [and expensive] legal proceeding. That’s better than being dead, I suppose; but it’s not good.

You don’t like my answers? I told you that you wouldn’t.



[1] Michio Kaku is a famous theoretical physicist. He has a very nice website at .The quote is from Brainy Quote at:

[2] G. Sallust is our disreputable founder, who gives orders even when he’s not here.

[3] Wikipedia has an article on this, at If you want better information, you might check with the NRA or possibly with your local sheriff, etc.

[4] See The Siren, 74 U.S. (7 Wall.) 152, 154 (1808):  “[i]t is a familiar doctrine of common law that a sovereign cannot be sued in his own court without his consent.”

[5] Thanks to the Cornell Law School, Legal Information Institute for this quote. It’s borrowed from their free online Legal Dictionary and Encyclopedia (“Wex”), available at

[6] See U.S. Constitution, 11th Amendment, available from the National Archives at “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”

[7] That’s under the Federal Tort Claims Act, 28 U.S.C. Ch. 171 & §1346(b). If you want to know why there’s a Federal Tort Claims Act, take a look at a case that deals with the catastrophic 1947 fertilizer explosions in Texas City, TX. See Dalehite v. United States, 346 U.S. 15 (1953).

[8] Again we take our definition from Cornell’s “Wex” definitions, this time from :”A tort is an act or omission that gives rise to injury or harm to another and amounts to a civil wrong for which courts impose liability. In the context of torts, “injury” describes the invasion of any legal right, whereas “harm” describes a loss or detriment in fact that an individual suffers.”

[9] See Bradley v. Fisher, 80 U.S. (13 Wall.) 335 (1826)

[10] See Yaselli v. Goff, 12 F.2d 396, aff’d per curiam, 275 U.S. 503 (1927)

[11] See Spalding v. Vilas, 161 U. S. 483 (1896)

[12] See Barr v. Matteo, 360 U.S. 564 (1959). You can find a good copy of this decision at  but, of course, you should use only the original if you’re filing legal papers.

[13] Id. at p. 571.

[14] We use the National Archives as out source for the wording of those documents. It’s accurate and free. You can find the 4th Amendment there, at .

[15] See Bivens v. Six Unknown Named Agents, 405 U.S. 388 (1971).

[16] See Ashcroft v. al-Kidd, 563 U.S. 731 (2011). We wrote a blog on this case 5 or 6 years ago. See the blog of 09/09/2011, Ashcroft v. al-Kidd, at

[17] The Court reached this conclusion in part because of the way al-Kidd pled his case. He didn’t challenge the warrant issued to detain him. “The Government needs only to make an objective case, under the statute, for an arrest warrant. If the warrant was properly issued, by definition it had met that obligation. The Government’s ‘subjective intent’ was irrelevant and a non-issue.”

[18] See Pauly at per curiam, p. 6 (citing Pearson v. Callahan, 555 U. S. 223, 231 (2009)).

[19] See White v. Pauly, 580 U.S. ___ (2017) (per curiam), a slip opinion currently available from the Court at . The slip opinion will be cited as Pauly at ___; page references will be to the portion of the opinion cited, i.e., to per curiam at __, or Ginsburg at __. See Pauly at per curiam, p. 6. “Qualified immunity attaches when an official’s conduct “‘does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’’ (citation omitted).

[20] See Pauly at per curiam, p. 6.

[21] Id.

[22] See Pauly at per curiam, p. 6, citing Ashcroft v. al-Kidd, 563 U. S. 731, 742 (2011)

[23] See Pauly at per curiam, p. 6, citing Anderson v. Creighton, 483 U. S. 635, 639 (1987).

Grow old along with me!

The best is yet to be,

The last of life, for which the first was made.

Robert Browning[1]

I don’t think so!

G. Sallust[2]

This started as a blog on DARPA [The Defense Advanced Research Programs Agency][3], artificial intelligence and outer space. There’s always new stuff on technology that educates and alarms the innocents, such as ourselves, who don’t keep up with the news. And on the other hand, there’s a new Supreme Court ruling on when the police can up and shoot a law-breaker without themselves being prosecuted. Larry tells me it doesn’t blaze any new trails, but it does do a pretty good job of summarizing the current rules.[4] These are interesting subjects, well worth your time and mine, and no doubt we’ll do blogs on them; but I thought this time we ought to focus on something different, a subject that interests more and more of us each year; and that’s elder abuse.

This is Fred, by the way, and like you I’m growing older every day. That’s good, in a way, because the alternative is much less good. But really, it’s not a happy thing to age in the United States. As time goes by, the ageing lose control of their destinies; but not because they’re dumber than the people who try to defraud them, vandalize their property or invade their homes. Instead they simply don’t have the physical or financial resources to resist aggression. Threaten an old person, who’s never been sued, with a legal action of any kind, and watch him [or her] dissolve before your eyes.

Suppose you have a troublesome neighbor, who’s old, and you want to get rid of him [or her]. Suppose that person is unpopular. What can you do? Well, if the old person owns a house, try working through the Homeowner’s Association, if there is one. Dream up things for the owner to do, and send him [or her] threatening letters if they don’t. If the old person rents, complain to the landlord. File reports with the authorities, alleging real or imagined infractions of local rules. Spread lots of gossip, true or false; it doesn’t matter; an old person probably won’t have the money, energy etc. to sue a gossip for libel. Let it be known that you won’t object if individuals take informal, extra-judicial action against the offender, although you certainly aren’t sanctioning anything wrong or illegal.

You get the idea. Ramp up the dirty tricks, but don’t get caught. Anyway, what brought this to mind was an article from the Lancet that drifted into the Zoo inbox the other day.[5] The Lancet is a medical journal that’s been around since 1823. It publishes research, reviews, case reports, articles, news, correspondence and editorials and articles on medical subjects. The journal has editorial offices in London, New York, and Beijing.[6] We first stumbled on The Lancet a couple of years ago, when we were covering Ebola epidemic and its consequences. Nobody around here is a doctor, or familiar with medicine except as a patient. Nevertheless, we do try to recognize a good, honest publication when we see one, and The Lancet qualifies.

The article that caught my attention is Elder abuse prevalence in community settings: a systematic review and meta-analysis, not the catchiest title but certainly informative. The article defines elder abuse as one or more subtypes of abuse, any one or combination of which causes harm or distress to an older person. The subtypes include:

  • Physical abuse. Injuring an older person by hitting, kicking, pushing, slapping, burning, or other show of force.
  • Sexual abuse. Forcing an older person to take part in a sexual act when the elder does not or cannot consent.
  • Psychological or emotional abuse. Harming an older person’s self-worth or well-being. “Examples include name calling, scaring, embarrassing, destroying property, or not letting the elder see friends and family.”
  • Financial abuse. Illegally misusing an older person’s money, property, or assets.
  • Neglect. “Failure to meet an older person’s basic needs. These needs include food, housing, clothing, and medical care.”[7]

In this the article follows the definitions recommended by our own Centers for Disease Control.[8] That’s good because it means that, when scientists study elder abuse, use the dame definitions and compare notes, they’re will talk about the same things.[9] The CDC, I might add, has its own, specific page to deal with elder abuse.[10] It also has put out an elaborate manual to help standardize the way abuse data is reported.[11]

So what did the authors of The Lancet piece do? Well, they performed what is known as a meta-analysis of prior studies done around the world and through June 26, 2015. I don’t claim to understand how this works, but they say they searched 14 data bases and concentrated on studies that reported “estimates of past-year abuse prevalence in adults aged 60 years or older.” They used statistical techniques [subgroup analysis and meta-regression] to study “heterogeneity” and registered their study protocol with an outside source.[12] Of the 38 544 studies initially identified, ultimately 52 were found eligible for inclusion in the final report. The studies considered were geographically diverse (28 countries). [13]

And what did they discover?[14] Well, that elder abuse is a world-wide problem, affecting possibly 141 million people:

Although robust prevalence studies are sparse in low-income and middle-income countries, elder abuse seems to affect one in six older adults worldwide, which is roughly 141 million people. Nonetheless, elder abuse is a neglected global public health priority, especially compared with other types of violence.[15]

The overall rate of elder abuse, around 15.7%, is a composite of all of the subcategories identified earlier. It includes reports of elders who are psychologically abused (about 12%), taken advantage of financially (about 7%), abused through neglect (4%), physically abused (2.5 %) or sexually attacked (about 1%).[16] These are estimates only, based on the most reliable current data. Results may vary over time. But so far there doesn’t seem to be a significant difference between men and women in terms of whether they are abused.[17]

So what are we to make of all this? This is a survey and analysis of world literature about elder abuse. Are we to assume that the conclusions apply to the United States as well? Granted we’re part of the world, but we’re also a rich and powerful nation. A city on a hill, some people say. The Bible says that’s a good thing, but our forefathers warned about that. We’re not automatically special. All that means is that we are watched.[18] God and the people will notice if we do things like abandon the elderly.

For that reason, I’m grateful our own CDC is focusing on elder abuse. We need more data on how big the problem might be; on who’s doing it, inside or outside our various governments; and what needs to be done to frustrate the miscreants. It’s a medical and legal issue, and the folks at CDC are the right ones to take the lead, with the able assistance of law enforcement when it’s needed. Forget the lawyers; mostly they just prey on the weak.

Oh, and did I mention that I’m authentically old? Sometimes I forget.





[1] See Oxford Dictionary of Quotations (6th edition) (Oxford, 2004) at p. 161, Robert Browning, n.3. The quote is from Browning’s Rabbi Ben Ezra (1864). Hereafter, the Oxford Dictionary will be cited as ODQ at ___.

[2] G. Sallust is our disreputable founder.

[3] The main DARPA website is at

[4] See White v. Pauly, 580 U.S. ___ (2017) (per curiam), a slip opinion currently available from the Court at

[5] See The Lancet, Yon, Mikton, Gassoumis & Wilber, Elder abuse prevalence in community settings: a systematic review and meta-analysis (Feb2017), available at Hereafter this will be cited as The Lancet, Elder Abuse at ___.

[6] Wikipedia has a nice introduction to The Lancet; it’s available at

[7] These bullet points are basically a paraphrase or direct quote from The Lancet. .

[8] See CDC, Elder Abuse: Definitions, at .

[9] Id. “A consistent definition is needed to monitor the incidence of elder abuse and examine trends over time. Consistency helps to determine the magnitude of elder abuse and enables comparison of the problem across locations.”

[10] See CDC, Elder Abuse, at

[11] See CDC, Hall, Karch & Crosby (compilers), Elder Abuse Surveillance: Uniform Definitions and Recommended Core Data Elements (2016), available from

[12] Id. at p. 147, Methods.  That’s with PROSPERO; some of you statisticians might know that. The registration number is CRD42015029197

[13] Id. at p. 147, Findings.

[14] See The Lancet, Elder Abuse at p. 147, Methods.

[15] See The Lancet, Elder Abuse at p. 147, Interpretation.

[16] See The Lancet, Elder Abuse at p. 147, Findings.

[17] See The Lancet, Elder Abuse at p. 153, Discussion. “Despite several additional analyses, our research found no significant difference in prevalence between older women and older men. Few studies have examined gender differences in elder abuse; those that did found mixed results, with some identifying disparate rates across genders. Yet in studies of intimate partner violence, gender symmetry is reported, supported by both systematic review and meta-analysis. Although much research on abuse has used gender roles and masculinity as a predictor for violent behaviour [“behavior” in the U.S.], emerging evidence has shown a weak association between gender roles and abuse.”

[18] See ODQ at p. 841, John Winthrop: “We must consider that we shall be a city upon a hill, the eyes of all people are on us; so that if we shall deal falsely with our God in this work we have undertaken, and so cause him to withdraw His present help from us, we shall be made a story and a byword through the world.” John Winthrop was an early American settler; he lived from 1588 – 1649.


Sometimes a cigar is just a cigar

Sigmund Freud[1]

[Note: G. Sallust, our disreputable founder, dropped by the other day and left this piece on Sigmund Freud and current events. He ordered us to publish it. We obey.]

[So why discuss cigars? Well, mostly because the Prime Minister of Israel seems to have gotten into trouble over them. Then, of course, there’s my personal interest. Many years ago I smoked, researched and talked about cigars, and waved them around in meetings, etc. I was pretty obnoxious, I’ll admit, but I’m over that now. Just ask anybody. But the cigar magazines aren’t; today they’ve moved into politics, recently interviewing Arnold Schwarzenegger as a cigar aficionado, and advertise everywhere. So it’s natural, I suppose, that the occasional head of state develops a taste for them.

Benjamin Netanyahu’s hobby isn’t unknown in Israel. It seems he [and his wife] have a reputation for high living, sort of like the McDonnells in Virginia. Israeli media report, according to the Washington Post[2], that one Hollywood producer, over the last eight years “spent up to $130,000 … on boxes of [Cuban] cigars and cases of champagne for the Netanyahu clan.[3]” The local police want to know more, and are interviewing the couple.]

Freud on Cigars

Are cigars really important to the powerful? Perhaps. Freud had a lot to say about this, but in the context of dreams. In a nutshell, he hypothesized that sex is the primary instinct that brings humans together.[4]  People seek pleasure – especially sex – and try to avoid pain. But men are aggressive.[5] Civilization tames men by imposing rules of conduct; this in turn creates stress and hostility,[6] some conscious and some repressed.

Stress manifests itself in our dreams. In fact, Freud said the majority of our dreams are about sex.[7]

Dreams speak to us in symbols, not in facts. For the most part dreams express sexual themes in a kind of standardized way. That means, of course, that dreams of this sort employ a symbolic language that patients and doctors can understand and discuss with one another. But Freud warns that nothing about dreams is set in concrete. Psychic material has a “curious plasticity.” If necessary a dreamer might employ “anything whatever” as a sexual symbol.[8]

So what are cigars, at least in dreams? Freud says that in general dream symbols represent either the male or female principle. Long, sharp or pointy things symbolize “the male member.” Those include, for example, “[a]ll elongated objects, sticks, tree-trunks, umbrellas … all sharp and elongated weapons, knives, daggers and pikes ….”[9] Cigars qualify, I think; they’re certainly elongated, and in their various forms do look a bit like a catalog of the types of you-know-what available on humans. Freud was a famous cigar-smoker, you know, so perhaps that’s why, one day, someone asked him. “Gee, Mr. Freud, why are you puffing on a phallic symbol?”

At least that’s the legend, that he was asked something like that. He could have answered, I suppose, that (a) cigars are phallic symbols in dreams, but he was conscious, and not dreaming, so the symbol had nothing to do with him; or, (b) he could have said civilization imposes the same stresses [i.e., repression] on all of us, whether we are awake or asleep, so dream symbols have significance in either case. The story is that he went with option (a). “Sometimes a cigar is just a cigar.” In his place, I might have gone with (b). Awake or asleep symbols of the male member are important.

Of course, we don’t really know if he was, in fact, asked that question, although it seems an obvious one. And, of course, no one has verified the answer. And these days we all know that not everything said, or printed, is true.

Cigars as Status

But if the whole story is apocryphal, why worry about it? There’s another reason why people lavish time and attention on things like expensive cigars. They are status symbols, that is, things that only people of high status can or do have. In the case of Cuban cigars, they’re very expensive and therefore only available to the people who can afford them. Also for a long time they were difficult to get, because of trade restrictions. I suppose that’s beginning to relax now.

Cuban cigars, like yachts, big diamonds, complex mechanical watches and expensive cars, are important because they cost a lot, and people with money buy them. [Such things aren’t really useful; if rich people didn’t buy, the market would disappear, and the product would be junk or at least devalued.] So if you flash an expensive cigar, you tell people you have money to burn; and, as we all know, wealth is pretty much the sole determiner of status in today’s world[10]. But what happens if the public learns you get your status symbols for free? What do people think?

Actually, if you depend on others for your Cuban cigars, you pretty much look like a flunky; like a client, back in the old Roman times, who relied on a higher-status person for favors, and supported him [or her] in return.[11] That, I think, is not the message a politician today should want to send.

Airplanes as Symbols

As long as we’re talking about phallic symbols, we might as well discuss the airplane for a bit. Aircraft were relatively new back in Freud’s day, but he knew about them, and thought they were a clear symbol of the male organ. Why? Well partly because the airplane is cigar-shaped, elongated and kind of pointy; and partly because it flies. [12]  The airplane is also a status symbol, in that some rich people have one. But the rich can afford to buy the occasional aircraft only because the public also wants to fly, and supports the air transport industry. Most aircraft are bought by airlines, or governments.

It’s the government programs that interest me, especially the ones that grossly exceed budget or grossly underperform expectations, or both. Let’s start with an apparent success story. Recently I learned our Government has an unmanned space craft, the X-37B, which launches into low-earth orbit via rocket, can loiter there for hundreds of days, and returns to earth as an aircraft.[13]

Judging from the published photo, it meets all of Freud’s criteria: elongated, pointy and all that; but it really doesn’t get much public notice, probably because its missions are classified. That’s a pity, because it’s also a success; it performs, and there don’t seem to be any complaints about cost overruns. So far our government has no plans to buy more.

Then there’s the F-35. Everybody has heard about this turkey. The actual contract for it was awarded in 2006, 11 years ago, and since then the program has been subject to seemingly endless design, redesign, tinkering and delays. Recently the Air Force declared the F-35s delivered to it to be “combat ready,” but there may be some controversy about that. The program has been described as “the most expensive military weapons system in history.” As of 2014 it was reported as $163 billion over budget and seven years behind schedule.[14] We and our allies are committed to buy lots more of them.

So what’s my point? Just this: I don’t know the details, but I’m astonished at the cost. I understand the politics of the situation; probably the business generated by the F-35 is important to every state that has a Congressional delegation that’s important to DOD. But can we afford something like this? Is it answering threats that nobody poses?  Are we in too deep to get out?

I don’t know, but I don’t think anybody should be fooled into buying F-35s just because they are the most expensive fighter aircraft in the world. Granted it would be a powerful symbol to have such things in our inventory, but is the symbol worth the price? Or is the F-35 more like a Cuban cigar, prestigious simply because it’s expensive?

If you’re not worried, just remember: Benjamin Netanyahu has bought some.[15]




[1] This is attributed to Sigmund Freud, see Bartlett’s Familiar Quotations (Little, Brown) (16th Edition, 1992) at Freud, p. 570, n. 3, but so far our research hasn’t corroborated that. See, e.g., Wikiquote at , which calls the quote “misattributed.” See also at . By the way, not too long ago we wrote a blog about Freud and dreams. See our blog of 2014/07/09, Dreaming Again, at

[2] And what better source could there be? See The Washington Post, Eglash & Booth, Netanyahu on hot seat over Cuban cigars, secret recording (Tuesday, January 10, 2017) at p. A10.

[3] Id.

[4] See Freud, The Major Works of Sigmund Freud (Franklin Library, 1982) at Vol. 1, Civilization and Its Discontents, p. 615 – 683. Henceforth this will be cited as Civilization at ___.

[5] See Civilization at p. 654. Men “are not gentle, friendly creatures wishing for love, who simply defend themselves if they are attacked, but … a powerful measure of desire for aggression has to be reckoned as part of their instinctual endowment.”

[6] See Civilization at p. 663: “The natural instinct of aggressiveness in man, the hostility of each one against all, and of all against each one, opposes this program of civilization.”

[7] See Freud, The Major Works of Sigmund Freud (Franklin Library, 1982) at Vol. II, The Interpretation of Dreams, p. 204, 337. “The more one is occupied with the solution of dreams, the readier one becomes to acknowledge that the majority of the dreams of adults deal with sexual material and give expression to erotic wishes. … No other instinct has had to undergo so much suppression, from the time of childhood onwards, as the sexual instinct in all of its numerous components; from no other instincts are so many and such intense unconscious wishes left over, which now, in the sleeping state, generate dreams.”

[8] See Interpretation of Dreams at p. 314: “Dreams employ this symbolism to give a disguised representation to their latent thoughts. Among the symbols thus employed there are, of course, many which constantly, or all but constantly, mean the same thing. But we must bear in mind the curious plasticity of psychic material. Often enough a symbol in the dream content may have to be interpreted not symbolically but in accordance with its proper meaning; at other times the dreamer, having to deal with special memory material, may take the law into his own hands and employ anything whatever as a sexual symbol, though it is not generally so employed.”

[9] See Interpretation of Dreams at p. 315.

[10] Unless you’re the Pope, I guess.

[11] Want to know more about the old Roman patronage system? Check out Wikipedia at

[12] See Interpretation of Dreams at p. 317: “As a very recent symbol of the male organ I may mention the airship, whose employment is justified be its relation to flying, and also, occasionally, by its form.”

[13] See, David, Air Force’s Mysterious X-37B Space Plane Wings by 600 Days in Orbit (January 10, 2017), available at .

[14] See the Wikipedia entry on Lockheed Martin F-35 Lightning II, at the introduction, available at

[15]  See Yahoo News, Lewis, Netanyahu says Israel ‘mightier’ as first F-35 fighter jets arrive (December 12, 2016), available at–finance.html


Whoever knowingly executes, or attempts to execute, a scheme or artifice—

(1) to defraud a financial institution; or (2) to obtain any of the moneys, funds, credits, assets, securities, or other property owned by, or under the custody or control of, a financial institution, by means of false or fraudulent pretenses, representations, or promises;

shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both.

18 U.S.C. §1344[1]

[OK, here we go again, our final discussion (for this year) of a Supreme Court decision. This one is unusual, says Larry, because: (i) it’s short, (ii) all the judges agree, and (iii) it’s hot off the presses. It was decided just this month. Normally Larry is 6 months to a year behind the news. Anyway, Larry wants to talk about it and Management wants to put out another blog this year, so here it is.]


Really, Phil, you don’t need to trivialize this. It’s a brand new decision, as you say, and fits neatly into our meme on white collar crime. The case is Shaw v. United States[2], and involves the law, quoted above, which makes it a crime “knowingly [to] execut[e] a scheme . . . to defraud a financial institution.”[3] Shaw was convicted of doing that, appealed, and argued that the law did “not apply to him because he intended to cheat only a bank depositor, not a bank.”[4]

But before we get to the substance, I want to chart the decision, just to depict who’s on what side. It’s a boring chart, because they all agree. I’ll use the same format as last time, for comparison purposes.

OPINION Alito, Roberts, Thomas, Kennedy    Ginsburg, Breyer, Kagan, Sotomayor NA
Part I agree agree NA
Part II agree agree NA
Part III agree agree NA

As you can see, there was one opinion only; that of the Court; there were no concurring opinions, dissents, or disagreements of any kind. I realize you [Phil] already said that, but it bears repeating. And while the chart is not really necessary this time around – if everyone is in total agreement, I don’t really need a visual aide to map that – I’m toying with the idea of charting all decisions we talk about from now on, so why not start with this one, when it’s easy?

Just the Facts, Please[5]

Shaw hacked somebody [or many somebodies], and eventually got the passwords, identifying numbers, etc. to a Bank of America account belonging to one Stanley Hsu. Shaw used those numbers [and other related information] “to transfer funds from Hsu’s account to other accounts at other institutions from which Shaw could obtain (and eventually did obtain) Hsu’s funds.”[6]  For that he was convicted of “defraud[ing] a financial institution,”[7] and the conviction was upheld on appeal.

Five Defenses

Shaw went to the Supreme Court on the theory that he didn’t defraud a financial institution; he simply defrauded Hsu, a bank customer. The money he took belonged to Hsu, not Bank of America; so he couldn’t have violated a statute that was there solely to protect banks. His defenses were a bit more elaborate than that, so let’s look at each of them

  1. Shaw argued that the statute makes it a crime “knowingly [to] execut[e] a scheme . . to defraud a financial institution.” The bank had no property interest in Hsu’s funds. They belonged solely to Hsu. So nothing that belonged to the bank was stolen. So the bank was not defrauded of anything.

But the Court said that wasn’t true as a matter of law. The bank did have a property interest in Hsu’s accounts, even though Mr. Hsu could have withdrawn them at any time. “When a customer deposits funds, the bank ordinarily becomes the owner of the funds and consequently has the right to use the funds as a source of loans that help the bank earn profits (though the customer retains the right, for example, to withdraw funds).”[8] Banks have other property interests in accounts as well, for instance, those of a bailee.[9]

  1. Fine, said Shaw, but he didn’t intend to harm the bank. His efforts were aimed only at Hsu. So he – Shaw – lacked the criminal intent necessary to defraud Bank of America.

The Court didn’t agree with that, either. The statute prohibits engaging in a “scheme to defraud“ a bank, there’s no requirement that the scheme be successful. The statute, said the Court, “while insisting upon ‘a scheme to defraud,’ demands neither a showing of ultimate financial loss nor a showing of intent to cause financial loss”[10] to the bank. Just plotting to mess with the bank made Shaw liable.

  1. OK, said Shaw, but whatever the true state of property law, he didn’t know that the bank had a property interest in Hsu’s account; hence he couldn’t have “intended to cheat the bank of its property.”

The Court didn’t buy that, either. “Shaw did know, however, that the bank possessed Hsu’s account. He did make false statements to the bank.  He did correctly believe that those false statements would lead the bank to release from that account funds that ultimately and wrongfully ended up in Shaw’s pocket.”[11] That’s all that’s required to establish intent under the law.

  1. Shaw argued the Government had to prove more than he would likely harm the bank by attacking Hsu’s account. The Government must prove that was his purpose, not just a possible side-effect.

The Court said “no” to that as well. Shaw was adding a new requirement to the statute, and he wasn’t a legislator. The statute requires the Government to demonstrate a “knowin[g] execut[ion of] a scheme … to defraud,” [12] nothing more. The Government does not have to demonstrate that Shaw understood the details and side effects of the scheme. There’s no indication Congress intended to add that requirement to the law.[13]

  1. Reading the whole statute, Shaw argued, it’s obvious the Government prosecuted him for violating the wrong subsection. Subsection (1) makes it a crime to scheme to defraud a financial institution; subsection (2) makes it criminal to obtain money under the “custody and control” of a bank by using “false or fraudulent” pretenses. Shaw was convicted of violating subsection (1). He should have been prosecuted under subsection (2). The prosecutors just didn’t know how to read their statute.

That’s an interesting argument, but the Supreme Court didn’t agree. While there’s overlap between the two subsections, it said, that’s “not uncommon in criminal statutes”.[14] Prosecution under subsection (1) was proper.


So is Shaw important? Well, in the great scheme of things, probably not, unless you make your living hacking banks. If you’re one of those, now you know 5 statutory defenses that probably won’t work if you’re caught.

Shaw also reminds us that not every case the Supreme Court hears is partisan, or political. In law some arguments are clearly wrong, or right to a good judge, regardless of his or her ideology. That’s when you get agreement across the divide. Will our politicians learn the same lesson any time soon? Wait and see, I guess.

Happy New Year!

[1] The title of this section is Bank Fraud. It’s in Ch. 63 of Title 18, dealing with Mail Fraud and Other Fraud Offenses. You can get the official [2015] version of Ch. 63 from the “Government Publishing [formerly, ‘Printing’] Office,” at

[2] 580 U.S.  ___ (2016). The official printed, bound version of an opinion is the best evidence of its contents. “Only the printed bound volumes of the United States Reports contain the final, official opinions of the Supreme Court of the United States. In case of discrepancies between a bound volume and the materials included here–or any other version of the same materials, whether print or electronic, official or unofficial–the printed bound volume controls.” So says the Supreme Court, at . Unfortunately the bound version doesn’t exist yet, so today you and I must rely on the “slip opinion,” the Court released when it announced its decision. That’s available at . We’ll cite it as Shaw, slip op. at Breyer, p.  __.

[3] Shaw, slip op. at Breyer, p. 1.

[4] Shaw, slip op. at Breyer, p. 1.

[5] For those of our readers who aren’t living antiques, that’s a reference to Dragnet, a radio show from the 1950’s.

[6] Shaw, slip op. at Breyer, p. 2.

[7] Id.

[8] Id.

[9] I won’t get into the law of bailments, you don’t hear much about it these days; but I do remember my first year of law school, when the Dean went into it at great length in his introductory course. When you park your car in a lot, think “bailment. You’ve just “bailed” your car to the lot owner.

[10] Shaw, slip op. at Breyer, p. 3. “Many years ago Judge Learned Hand pointed out that ‘[a] man is none the less cheated out of his property, when he is induced to part with it by fraud,’ even if ‘he gets a quid pro quo of equal value.”

[11] Shaw, slip op. at Breyer, p. 4.

[12] Shaw, slip op. at Breyer, p. 5.

[13] See Shaw, slip op. at Breyer, p. 5. This is my interpretation of what the Court actually said. The original is: “To hold that something more than knowledge [i.e., knowledge of the scheme] is required would assume that Congress intended to distinguish, in respect to states of mind, between (1) the fraudulent scheme, and (2) its fraudulent elements.  Why would Congress want to do that?”

[14] Shaw, slip op. at Breyer, p. 7.