Friday, September 29, 2017


A dear friend has requested that I weigh in on the football v flag controversy.

I have to say that the whole brouhaha should be laid at the feet of the lawyers who drafted the million dollar contracts between NFL players and the owners of NFL teams.

Certainly, the players are American citizens and certainly, like all other Americans, they have the constitutional right to express their political opinions whenever and however they choose.


Unless they have freely exercised their equally sacred constitutional right to enter into a contract that limits their right of political expression.

Professional football is a very successful enterprise. It has become a national pastime; an important and powerful element of American life.

If you doubt that, I suggest you look at the economic impact of the Super Bowl; not only in the city where it is played, but in every city and town from Bangor to Chula Vista.

Football is a peculiarly American sport. Every high school and college has a football team.

And every city of consequence has a professional team which bolsters home town chauvinism throughout the land.

Not to mention that professional teams are economic dinosaurs that make millions for their owners and occasion huge expenditures by municipalities and their football mesmerized inhabitants.

The playing of the national anthem, and the raising of the American flag are typically part of the pageantry that surrounds a professional football game.

That’s because football is an American game. We love it. We celebrate it. It brings us together as a nation.

Certainly the owners of football teams must know that they are in a business that is not defined and delimited by a couple of hours on manly combat on the field.

They must realize that they are in the entertainment and recreation business.

And that the celebration of patriotism is as much a part of their inventory as offense and defense.

So I should think that any well advised team owner would insist on player contracts which require the players to participate in the patriotic aspects of their entertainment business.

And that would certainly include standing at respectful attention during the performance of the Star Spangled Banner.

If any team owners or their counsel should happen to see this blog, the old judge would be happy to draft the appropriate contractual language.

For a fee, of course.

Sunday, September 17, 2017


The United States Supreme Court has taken up a case out of Colorado in which a baker refused to make a wedding cake for a gay couple. The merchant bases his refusal to bake the cake upon a strongly held religious belief that marriage is a contract between a male and a female.

A decision by the high court is expected in October.

There have been a number of similar cases decided in various State courts.

Typically, these disputes arise in the context of State laws which prohibit invidious discrimination in the market place. These are the so called “civil rights “ laws which originally provided that businesses open to and serving the general public are prohibited from discriminating on the basis of race, color or creed.

The Michigan law expands on that, prohibiting discrimination based on religion, race, color, national origin, age, sex, height, weight, familial status, or marital status.

When I was in law school, we learned in the Contracts course that agreements to buy or sell things were based upon the free choices and decisions of the buyers and sellers. Only enterprises known as public utilities were obligated to deal with everyone and to do so without discrimination.

Candidly, I wish the question of religious freedom were not being injected into these cases. Freedom of contract is perhaps the most fundamental and unequivocal liberty known to mankind. Unless there is a valid, constitutional statute prohibiting or limiting our freedom to buy or sell as we choose, no court should ever interfere with our freedom of contract.

Economic boycotts are classic exercises of political choice in the marketplace. In a free country people have a right to hinge their economic decisions on their political sentiments.

Weddings are expensive. For most of us, a wedding is an orgy of major spending decisions. Cakes, flowers, gowns, musicians, venue rental, the list goes on and on, and every nickel of it is the occasion of a buyer and a seller exercising his or her freedom of contract.

Vendors in the wedding business have become particularly susceptible to and capable of political boycotts since marriage has emerged as one of the most divisive political issues of our time.

In the Obergefell  case, the Supreme Court claimed to discover a constitutional right of same sex marriage. It did not decree that same sex marriage must be approved and abetted by all wedding vendors.

The civil rights statutes in Michigan and elsewhere, protect various classes of people. They do not protect conduct. They prohibit discrimination against people based upon who they are, not what they do.

Michigan farmer Steve Tennes, owner of Country Mill Farms, in Charlotte, rents his barn as a wedding venue. But not for same sex marriages. The City of East Lansing, presumably based upon someone’s complaint, revoked Tennes’ permit to sell his apples at its Farmers’ Market.

A Michigan Court promptly issued an injunction against the City, so Tennes is back in business. At least that’s where the matter stands today.

Again, and unfortunately, Mr. Tennes argues that gay marriage is not approved by his church, and he attributes his barn ban to his Catholic faith.

Too bad. I can’t help wishing that he had just said “It’s my barn, and nobody is a going to tell me who I can rent it to.”

The Obergefell decision opened a can of worms. Its fuzzy notion of a constitutional right to marry is a judicial intrusion into an area that is peculiarly entrusted to the elected legislatures of our nation. Marriage laws typically require a license to marry and spell out who can and who cannot be licensed.

Age, relationship, marital status, mental competence, physical health and residence are all matters that legislatures have regarded as important in the marriage licensing process.  

Does Obergefell sanction incest or child marriage? Nobody knows. One thing is certain: you can’t do it at Country Mill Farms.

Tuesday, September 12, 2017


Every time William Devane appears on my television screen pitching for Rosland Capital, my dander goes up.

I always wonder whether I am the only person who sees the inherent contradiction in his message.

What he is telling us is simply this: You can’t rely on paper money. If you want your wealth to be safe, you have to buy gold. In the process of making that argument, he warns us against “paper money being printed by unstable governments.”

Devane is making his pitch on American television, for heaven’s sake. He is talking to Americans. In some commercials, he talks about the national debt of the United States. How big it is. How it grows and grows out of control.

In one of his commercials he is standing under a cannon on the USS Iowa  bemoaning the fact that our country used to flex its muscles and the world would listen; then insisting that we need to return to those days.

The bottom line: Mr, Devane and his employer, Rosland Capital, believe that you can’t rely on the Yankee dollar. It may well become as worthless as a wet scorecard. That’s what they are saying to us.

Then, oddly enough, he immediately urges us to support our military.

I don’t get it. The United States military budget for 2018 is 824.6 billion dollars. It is the second largest item in the federal budget, exceeded only by a trillion dollars for social security.

Exactly where does Mr. Devane think that 824.6 billion dollars is going to come from?

The federal government basically gets its money from two sources: taxation and borrowing. If the wealth of our nation consists of gold buried in the back yard, how are we supposed to “support the military”?

I suppose Devane would argue that you should buy gold as an investment to pay future taxes, since gold appreciates more than such conservative investments as US Treasury Bills.

I did a little calculating. In 1982 gold was selling for $447 per ounce. For $10,000, you could have purchased 22.37 ounces of it. Today gold sells for $1,348.70. Your gold would be worth $30,170.

My research found that prescient investors who saw fit to buy $10,000 in 30-year Treasury Bills in 1982, would have pocketed $40,000, when the bonds matured in 2012.

So which is the better hedge against inflation, gold from Rosland Capital or bonds from the U.S. Treasury?

And which purchase does more to help Uncle Sam buy battleships and jet fighters?

Mr. Devane is correct , of course, in noting that the United States now issues what is called “fiat” currency. Fiat is a Latin word which simply means ‘let it be.’ So when our federal government prints a dollar bill and says “Fiat” or “let it be worth a dollar” the piece of paper becomes a dollar. Real money. Like magic. Abra Cadabra.

Is there a specific amount of gold in Fort Knox to back up every fiat dollar?

Of course not, And every time the government printing presses grind out another fistful of dollar bills, the amount of gold backing each one of them is less and less.

After WWII, at Bretton Woods, the U.S.A. agreed to buy back its paper dollars with gold at a price of $35 per ounce. Presidents Kennedy and Johnson struggled to keep that promise, using various economic strategies, without success.

In 1971, President Richard Nixon announced that the U.S. would no longer redeem its paper money. William Jennings Bryan must have have rejoiced that Americans would be spared the ignominy of crucifixion on a “Cross of Gold.”

So we have been playing with Monopoly money for almost fifty years.

Perhaps William Devane should stop leaning on the panic button.

Wednesday, September 6, 2017


The onset of geriatric short term memory loss is a perfectly normal and commonplace phenomenon for a man of my age, but damned if it isn’t frustrating, annoying and embarrassing.

I can remember the name of the little boy who had an personal accident in Sister Mariam Joseph’s second grade class, but I cannot tell you the name of the man with whom I rode around the golf course the day before yesterday. Of course, if my golfing partner had done what Harry Bloink did in 1936, I surely would recall his name, too.

Names have always been a problem for me. My law school classmates bandied about the names of the cases we studied with comfortable familiarity. I only remembered the facts of the case and the legal principle involved. For me, the famous 1929 New Hampshire tort case of Hawkins v Mcgee was simply the case of the “harry hand.”

I suppose my increasing difficulty remembering people’s names would be more concern if it were an alarming new experience. It isn’t. I have always had a problem with names.

When I was Chief Justice, I had many occasions to work with the State Bar of Michigan. The name of one charming and gracious lady with whom I often interacted in those days, never stuck in my craw. Every time I saw her, I was immediately, and uncomfortably, aware that I could not call up her name.

Embarrassing as it was, I would ask to be reminded. I have always felt that the embarrassment of asking someone’s name is at least more honest than the embarrassment of not knowing the person with whom you are having a conversation.

In any case, no matter how many times I saw her, no matter how many times I asked, and no matter how many times she told me her name, the next time we met, I would draw the same annoying and frustrating blank.

It finally came to the point where, every time I saw her, she would open the conversation with the triumphant question, “You don’t remember my name, do you?”

It is perhaps a work of charity that I cannot call up her name as I write this blog. I still feel my face getting red as I tell the story.

The process of people recognizing other people has interested the medical profession for years. Wikipedia tells us that scientists at Cal Tech have conducted brain imaging studies which show that we humans have several tiny regions in our temporal lobes – about the size of blueberries – that specialize in responding to faces.

They have actually been able to record the crackling of these brain cells in a monkey and identify who the monkey is thinking about!

All of which harkens me back to the early 1940’s, when, on a summer’s day, I ran into the street intent on playing catcher in a pick up baseball game, only to catch the full force of a baseball bat on my forehead – right between the eyes. I went down and out with two black eyes and a bump on my forehead that is still there.

Makes me wonder if it had anything to do with the pituitary tumor I developed about twenty years ago. And my annoying inability to catalog names and faces.

In any case, memory loss is all a part of the aging process. My sainted mother used to write notes to herself to avoid forgetting things. She simply  took it all in stride.

We were concerned about her driving her beloved old Ford Mustang. She insisted than she never drove over 20 miles an hour and never made left turns. We took her car and when she realized it was gone, we told her she had sold it. She smiled and said, “Did I? I don’t remember.”

I don’t write notes, although I do keep a diary on the computer. It’s not fool proof, but it helps, especially when I check it against Polly’s calendar, which is never wrong.

By the way, the kid with the baseball bat was Lee Johnson. I wonder what ever became of him.