Category Archives: regulation

Why Johnny Can’t Read

Posted on by
Reply

An increasing number of States are looking at passing laws blocking third-graders who can’t read (well enough) from being passed on to fourth grade.

Tennessee, Michigan, and North Carolina are among at least 16 states that have tried in recent years to use reading tests and laws requiring students to repeat third grade to improve literacy. Louisiana, Arkansas, Alabama, and Nevada have all passed similar laws that will go into effect in the coming years.

Those laws, too, typically include extra tutoring, summer school, and…teacher training (what a concept that last is).

Johnny’s troubles began long before the Wuhan Virus Situation, but the school lockouts lockdowns during that period exacerbated the problem, and they were made manifest when parents, as a result of being locked out of their jobs at the same time, were able to see what actually was happening with their children’s “schooling.” Johnny’s situation was made even more obvious he went back to in-person school.

Know Betters and Coddlers, of course, object. Katherine Bike, a Knox County, TN, school board member, is typical:

I understand they might want to be tackling learning loss, but it’s truly the wrong way to do it. I think the whole thing is unfair.

Her idea of fair: she successfully “appealed” to keep her son from repeating third grade. Because promoting unqualified children to the next grade is what’s fair.

The Know Betters and Coddlers’ fear of what happens when Johnny is held back:

a defeated 18-year-old high-school junior dropping out against [Johnny’s mother’s] wishes.

No. The 18-year-old high-school junior will be defeated by his inability to read, not by his being a year or two older than his classmates.

This is the modern reason why Johhny can’t read. Know Betters and Coddlers don’t care that “can’t read” means can’t read.

Right, But for a Different Reason

Posted on by
Reply

The Wall Street Journal‘s editors’ headline and subheadline is on a reasonable track:

Punishing Banks for Regulatory Failure
Regulators want to saddle midsize banks with new capital rules.

The editors the proceed to disparage the regulators’ move, and they’re correct about that. They’re mistaken in their lede, though, and that leads them to the erroneous aspect of their disparagement:

Silicon Valley Bank failed owing to rising interest rates and lapses by regulators, not a shortage of capital.

It’s true that a shortage of capital did not cause SVB’s failure, except as the proximate outcome of the real cause of the failure, an outcome that made the failure inevitable.

SVB did run short of capital value, and that meant it couldn’t survive the rapid outflow of cash through depositor withdrawals. But rising interest rates were only the means of that capital shortfall and bank failure, not the cause. Nor were lapses by regulators—and there were some serious ones, including their lack of oversight diligence, which should have led to better enforcement of existing rules—involved in the bank’s failure.

The bank’s managers failed in their own fiscal duties, overbalancing as they did the nature of their capital holdings in the face of those rising interest rates: those managers chose not to balance the interest rate risk related to their deposits and the rates they were paying against the interest rate risk related to their capital holdings and the way rising rates were devaluing their holdings.

Those managers could see as well as any of us, and as well as their depositors, what rising rates were doing to their bank’s capital, and those managers could see as well as any of us, and as well as their depositors, the increasing risk to the bank of the decreasing interest rate spread between what the bank paid depositors and what it earned on its loans, loans the bank was increasingly unable to make in the face of those rising interest rates. And that exacerbated the impact of the bank’s decreasing capital holdings, which those managers could see as well as any of us, and as well as their depositors.

Nor did lack of overt regulator intervention have much of anything to do with SVB’s failure. Bank managers, any enterprise managers, are paid to act on their own initiative, not to wait until they’re told what to do and then, subsequently, told to go ahead and do it.

SVB’s managers were no exception to that.

This was an SVB management failure, and Regulators have no place for writing new capital rules. It’s sufficient for the market place to apply the appropriate sanctions, even if that deprives government bureaucrats of an opportunity to feel good about themselves by Doing Something.

Occupying Floodwaters

Posted on by
Reply

It seems a Wisconsin man owns some property near Ixonia, and that property has been flooded, gets flooded fairly frequently, by the Rock River against which the man’s property lies. He’s gotten fed up with the airboats that go running across his land, taking advantage of its temporarily flooded condition, and he’s filed suit in Wisconsin’s Jefferson County Circuit Court to put an end to the practice.

At the heart of the issue is the so-called public trust doctrine, which are provisions in the Wisconsin Constitution that guarantee public access to navigable waters generally defined as any waterway with a bank upon which someone can float a canoe or other small watercraft on a regular basis.
State Department of Natural Resources policies state that the doctrine grants access rights to any part of a navigable waterway as long as the person remains in the water.

At the heart of the man’s suit is this:

public access [the suit holds] ends at the ordinary high water mark, a point on the bank or shoreline where the water regularly stops, and that the DNR’s position has left law enforcement confused.
“DNR’s authority to implement and enforce the public trust doctrine is limited to navigable lakes, streams, sloughs, bayous and marsh outlets,” the lawsuit says. “Flooded yards do not fit into these categories and are not subject to DNR’s public trust jurisdiction.”

The man has the right of it, and a key phrase is that “regular basis” bit. There’s nothing regular at all about floods—that’s why they’re called floods and not rivers, or bayous, or swamps, or ponds or lakes. Another key phrase is that waterway with a bank bit. Floods don’t have banks; they’re floods because the water has overflowed the waterway’s banks.

Beyond that, there are basic private property rights. A man owns his private property, whether it’s in its normal state or flooded by a temporary overflow. There are no “navigable waters” in a flood sitting on private property, however easily someone else’s boat might float on the flood.

Wisconsin’s constitution is fairly explicit on the matter of private property. Art I, Sect 13:

Private property for public use. SECTION 13. The property of no person shall be taken for public use without just compensation therefor.

There is no clause or collection of clauses that authorizes the DNR’s navigable water policy. The DNR’s…policy…looks an awful lot like a taking without just compensation. Just a “shut up and deal with it” misinterpretation of the State’s constitution.

The cynicism of the DNR’s position regarding floods and navigability is demonstrated by this definition of navigable waterway in the DNR’s own policy regarding waterway jurisdiction:

A navigable waterway is defined through case law as any waterway that has a defined bed and bank, and upon which it is possible to float a canoe or small watercraft on a recurring basis.

This directly contradicts the DNR’s Public Trust Doctrine definition of navigable waterway on which it’s hanging its hat in defense in the law suit:

The Public Trust Doctrine applies to all navigable waters, which are defined as any waterway on which it is possible to float a canoe or small watercraft at some time during the year.

That internal-to-DNR contradiction by itself ought to be enough for summary judgment in the man’s favor and the striking of DNR’s navigable water policies. With that internal contradiction, DNR has demonstrated that it has no concept of navigable waters.

A Bogus Beef is Swatted

Posted on by
Reply

When Congress passed and President Joe Biden (D) signed the recent debt ceiling bill, one of the items included was a requirement for construction on the Mountain Valley Pipeline to proceed to completion and for the pipeline to begin operation. In conjunction with that, the bill removed from lower courts their jurisdiction over questions  regarding the natural gas pipeline.

The Fourth Circuit, when “environmentalists” got their cases to it, blocked construction while it sorted out whether it could rule on the matter.

The Supreme Court has sorted the matter out for the Fourth Circuit, at least temporarily: the pipeline will be completed with no further delay; the Court has lifted the Circuit’s stay.

The “environmentalists'” beef was this, as paraphrased by The Wall Street Journal:

stopping legal challenges before the Fourth Circuit violated the separation of powers clause of the Constitution, in effect giving Congress the power to decide the outcome of judicial proceedings.

This would be risible, were it not so cynical. No judicial proceeding is being predetermined by Congress. What has been specified, as allowed under our Constitution, is the jurisdiction of courts below the Supreme Court; in this case, that lower courts do not have jurisdiction to hear cases involving the MVP. Nor have the courts as a whole been denied jurisdiction; such cases still can come before the Supreme Court, should that Court choose to hear them.

A Bogus Beef

Posted on by
Reply

Some academics object to Texas’ Republican Governor Greg Abbott moving to ban TikTok from Texas government devices and from personal devices used to conduct Texas official business. Texas’ legislature passed the bill creating the ban, and Abbott signed it into law last December. Now a New York State-headquartered organization, ironically named The Knight First Amendment Institute, which is a facility of New York City’s Columbia University, is suing Abbott among other governors, over the ban, claiming free speech violations.

The lawsuit said the state’s decision…is comprising teaching and research. And more specifically, it said it was “seriously impeding” faculty pursuing research into the app—including research that could illuminate or counter concerns about TikTok.

This is, to use the legalese technical term, a crock. It’s also, to use a legal technical term, a frivolous suit.

Banning TikTok in no way inhibits what these academics say or collaborate over, nor does it in any way impede those academics’ speech or collaboration; it only bans one tool, a national security risk, from being used for the speech/collaboration. There are, after all, a plethora of communication and collaboration devices available other than TikTok. To name just a few (located after 10 grueling seconds on Bing search):

  • Slack
  • Zoom
  • Miro
  • MindMeister
  • Loom
  • Asana
  • Notion
  • Microsoft Teams

There are, also, freeware tools like Hugo and Scribe.

It’s hard to believe these So Smart persons aren’t aware of these tools. Maybe they should listen more to the students in their freshman orientation courses.

It’s even harder to understand why these Precious Ones insist on leaving their personal information; their research ideas, techniques, and progresses; their speech and thought available for People’s Republic of China government personnel to freely exploit; they should be called to explain that.

Their free speech interference claim is especially pernicious, given that these august personages are of the same guild that so zealously blocks, even with violence and firings, the speech of those with whom they disagree.