AG Watch

National Consumer Protection Week runs from February 5th-11th this year. In order to do our part, we’ll warn consumers that Attorneys General continue to run the biggest consumer scam of them all.

Idaho, to choose one of fifty examples, raised the prices we pay by $600,000 last year. No doubt, the real recovery of money stolen or fraudulently acquired from Idahoans by Idahoans accounts for some of that figure. But, as AG Lawrence Wasden proudly recounts, a big chunk of it comes from Idaho fleecing the citizens of all 50 states. Consider Wasden’s part in the $40M that the AGs grabbed from State Farm Insurance or the $5M taken from DirecTV. In both instances, the AGs raised the price for national consumers in order, to be frank, to win re-election. And they managed to tack on a nice “litigation fee” for their respective offices as well.

To be fair, this was not Idaho’s worst year. 2005 was the first year since 1999 that the “Consumer Restitution Recovered” by Idaho was less than the “Dollars Claimed Lost” by Idahoans [see page 11]. For five straight years, the State of Idaho has recovered more than was lost! 2004 was a particular gem because Idaho has no idea how much was lost…but the AG recovered $5.8M anyway. The surplus proves the scam.

Consumer protection needs to start with protection from these AG end runs on rational taxation schemes. Thanks to these bogus suits and settlements, goods and services grow more expensive, government reaps the surplus, and we the people lie threshed.

With the 2008 North Carolina election race heating up—you read that year correctly—Attorney General Roy Cooper fired a litigo-politico salvo: a lawsuit against the Tennessee Valley Authority. The dusty ol’ TVA from a depression era gone by has been making some smoke, literally. And, air currents being what they are, some of that smoke has up and gone to Carolina.

The TVA may be a relic and a polluter to boot, but the NC suit is nonetheless hack-handed theft masquerading as environmental protection. The TVA, according to the suit, violates North Carolina law. Well, whoop-dee-doo! This issue was settled in 1787. The United States of America “violates” the laws of the states in conformance with Article VI of the Constitution.

If one says, “Constitution schmonstitution,” the moneygrab angle remains. The TVA operates primarily in seven states and indirectly through all 50. In short, this litigation attempts to legislate the other states—the citizens of those states—by taking their money.

The EPA can handle this one; James and AG Watch can get back to the sun and moon shine.

Attorney General Eliot Spitzer has long made hay via nearly unlimited access to defendants’ internal documents, data, and communications. Now, in an overdue turnabout, Mr. Hank Greenberg demands the same look into Mr. Spitzer’s own file cabinet. Last week, Mr. Greenberg won the privilege of seeing the AIG internal review that led to his dismissal.

Even the most scrupulous human is prone to human errors. An infinite number of monkeys digging through an infinite number of file cabinets will eventually discover the “smoking gun”—though, in SpizterWorld, the “smoking gun” is often more smoke than gun. Rifling through Spitzer’s drawers will undoubtedly unveil some of the same intraoffice slips, gaffes, and indecencies with which Spitzer has heretofore hung others.

As a one-time lesson to General Spitzer, we applaud Mr. Greenberg’s action. However, as a long-term instruction for all of us, we should note that unlimited review of internal information—whether it be government searching a business (or individual) or a business searching government—will be, most of all, COSTLY. More improprieties will certainly be found, but the sheer bulk hours of review, not to mention the compliance and opportunity cost, will cripple both government and business.

Let’s call a cease-and-desist on the whole shotgun subpoenae enterprise. But you don’t have to take our word for it; you can play the St. Petersburg Paradox yourself.

Wisconsin State Senate Bill 425 would curtail the role of the AG in civil actions. The bill would require the AG to receive gubernatorial go-ahead before launching nuisance suits or dishing contingency contracts. The bill also provides that the Dairy State DOJ repay court costs to public nuisance defendants when those defendants are found not guilty.

The bill’s sponsors claim it would “put some checks and balances” in the way of an Attorney General who increasingly “goes after the very people they [sic] are elected to protect.”

In response, Wisconsin AG Peg Lautenschlager testified that the proposed bill would place “public nuisance out of reach of the law.” She argues, “Even the smallest risk of a financial loss is enough to discourage much-needed action” and that “citizens may sue where there is a public nuisance, but only to deal with injuries peculiar to them and only to protect their own rights.”

Michael Greve’s Harm-Less Lawsuits? addresses the latter issue more thoroughly than itty-bitty AG Watch ever could.

As for the former claim: The highest-office-holding Lautenschlager in the nation would have us believe that her license to sue is worth innocent people bearing the cost of frivolous suits brought against them. In other words, the AG thinks that innocent people should subsidize an AG lawsuit lottery, so that the Attorney General can display only the benefits of worthwhile suits while disowning the costs of bad ones.

This bill would bind the AG only to the extent that the governor would have to agree that the cost of a failed suit be worth the benefit of a successful suit. Without that measure, the AG is free to sue anyone and everyone with little risk.

It would be great if everything in life came without cost. And my solid-gold talking rocket car would certainly think so too.

The Attorneys General House of Antitrust Horrors has opened a new wing, the State Center. AG Watch is instinctively suspicious of government-assisting institutions—the SC gives grants to elected officials(?)—but we’ll bite our tongue until the babe gets out of short pants.

In the meantime, we offer our own assistance…

Haiku, like antitrust, suffers from simplicity. The bare elegance of the form deceives people into thinking that it is easy to do, that conformance to “rules” that appear basic and minimal is tantamount to the performance of the art itself. Many short poems that go by the name “haiku” are actually zappai—or, more likely, “pseudoku.” Similarly, much regulation that goes by the name “antitrust” is actually jurisdictional brinksmanship, governmental favoritism, or even outright extortion.

Given the general similarities between antitrust and haiku, perhaps George Swede’s five guidelines of haiku, read broadly, can illuminate state antitrust oversight as well:

1. haiku must be brief: one breath long
The 50-state antitrust review process would be an interminable nightmare. More than anything, citizens—shareholders and consumers—just want to know where they stand. A cacaphony of governing voices, echoing long after every merger or development, would create deadlocked confusion in the business world and would cuff the consumer benefits of efficiency.

2. haiku must express sense of awe or insight
Institutionally speaking, states are in no position to see the global forest for the local trees. Far from the awe-inspiring mountaintop (i.e., the federal/global level), the state vantage is necessarily parochial. Locals are prone to construe the competitive advantages of distant businesses as anticompetitive.

3. haiku must involve some aspect of nature other than human nature
In the nature of antitrust, the harshest regulator determines the rules for all players. It is, however, the human nature of attorneys general to want to be “effective” ostentatiously: enter, the one-way ratchet of dueling regulation; exit, sensible antitrust.

4. haiku must possess sense images, not generalizations
Just as 5-7-5 is a disinforming “rule” hawked by primary school marms and ersatz coffeeshop poets, so the “rules” of antitrust prove illusory in application. The line between “anticompetitive practices” and “best business practices” is thinner than a reed, and is as much sensed as calculated. Even the US and EU interpret the same particular instances in devilishly different ways. Because antitrust has few bright-line rules, fifty more analyses would only obscure the area further.

5. haiku must present an event as happening presently, not past or future
Antitrust, in theory and in practice, changes inexorably. International government regulators rarely move with the alacrity and dexterity of commercial innovations. Too often, today’s rulings based on yesterday’s information only trip over tomorrow’s situation. Adding fifty superfluous regulatory agencies to the mix doesn’t sound very streamlined, does it? How would they help governance keep pace with business, not to mention ever-changing antitrust theory?

The comparison may be contrived, but state-by-state antitrust oversight appears closer to pseudoku than haiku. And that AGs will be at the helm does not inspire confidence. This consumer pseudotrusts their consumer protection. Ah, let’s not mince words: we wanna zappai the works!

“The Court rejects the Attorney General’s argument that the Settlement Agreement unconstitutionally inhibits the power of the Legislature.”—Minnesota v. Philip Morris

Whoa! Stop the train! Lemme read that one more time…

Minnesota Attorney General Mike Hatch argued that the Master Settlement Agreement is (1) unconstitutional, and (2) usurps state legislative authority? Have I got that right? ‘Cause it sounds terribly familiar. As if we’ve been making that argument for seven years.

Ramsey County (MN) District Court Judge Michael Fetsch ruled that Minnesota cannot slam cigarettes with another health fee. Fetsch oh-so-sensibly says, “The state is bound, like any other party is bound, to the contracts to which it freely and knowingly enters, and from which it benefits.”

This really shouldn’t be news. It is preposterous that Minnesota rested $400M worth of budgetary hopes on this chicanery. Are the full implications of the MSA just now dawning on everyone not working for Big Tobacco? Are state officials (including the AGs themselves) only at this late moment realizing that AGs effectively commandeered state governments in the service of Philip Morris and Co.?

It has taken seven years for AGs to turn against their masterpiece MSA. Perhaps it will take less time for them to comprehend their other errors…

Oh, who are we kidding…

AG Watch would be more ecstatic about this decision, but the states’ Little Smokin’ Dutch Boy budget plans—plugging holes with cigarettes—will undoubtedly adopt a new face. AGs and other tax-hungry cratocrats will tinker with words long before they will change tactics: “taxes” will replace “fees,” “vitality” will supplant “health,” resiliant wills will be immobilized, and the nation perfectly demoralized.

Texas Attorney General Greg Abbott has doubled down with the house money against Sony.

The Texas suit (as with most AG-driven consumer protection and fraud suits) could be exhibit A in the case against the wacky shell game attorneys general play with the national (and international) economy. When Texas (or any state) regulates a national product, and sues based on that regulation, they effectively regulate the product nationally. Furthermore, the proceeds of the suit are taken from the national consumer base (in the form of higher prices) and dumped into the plaintiff state’s general fund. The most Draconian state regulator “wins,” by stealing the most money from the others. This inane configuration incentivizes each state to regulate national markets—and to sue national companies—more than every other state.

And the companies, such as Sony, cannot avoid their products winding up in this or that state, except at prohibitively high costs. It is easier for them to make every product comply with the strictest regulation than to tailor each product to each jurisdiction and somehow ensure that software designed for Tucson doesn’t end up on a shelf in Tuscaloosa.

Each state races to rule the world; the result is multi-multi-multi-mutually assured destruction of the national economy and social structure (call it, “mmmMADNESS“).

AG Watch is no fan of spyware, but this must be an area for federal preemption. If and when the feds regulate Sony et al., then we’ll get behind the suit. As it stands, Mr. Abbott adds a dash of Bah and a sprinkle of Humbug to the AG Watch holiday.

UPDATE: This post was updated on 12/29/05.

Last week, Federal District Court Judge Laurie Smith-Camp declared Nebraska’s corporate farm ban (Initiative-300) unconstitutional. Judge Smith-Camp found the law in violation of the Commerce Clause of the Constitution as well as the Americans with Disabilities Act, noting, “there is substantial evidence to support the premise that Initiative 300 was conceived and born in a protectionist fervor.”

Nebraska Attorney General Jon Bruning plans to appeal the decision. But why?

An appeal would waste taxpayer dollars in defense of laws that constrain American food production, as corporate farm bans undoubtedly do. In order to support such bans, one would have to argue that higher food costs for all—to the point of hunger and starvation for some—are a necessary tradeoff in order to keep “family farms” in the black (and to do it by binding government to one segment of the population against the rest). And not even all family farms will be kept in the black, as many of them have incorporated already and the others are dubiously protected by the ban, as the Eighth Circuit suggested in Hazeltine.

Mr. Bruning seems intent on winning the vote from Nebraska’s farm constituency. Though the decision to appeal isn’t solely AG discretion, it is true (point, weblAG), Mr. Bruning would do well to advise Nebraskans—and advise them strenuously—that this form of biased governance has weak Constitutional legs and cruel outcomes. Hunger allows no choice.

Michael Greve debated James Tierney on Wednesday, December 7th at the National Press Club in Washington, DC. Mr. Greve’s thoughts can be found as part of the Federalism Project; Mr. Tierney is listed, as always, as Our Least Favorite.

AG Watch will link to the transcript of the debate when it is posted.

AG Watch v. Costner was cancelled from the undercard.

As first noted in the Seattle Weekly, the FTC and DOJ gave the green light to the proposed merger between Village Voice and New Times. As far as antitrust obstacles, this should be the end of a non-event.

However, the rival SF Bay Guardian planted the seeds of disorder, begging California AG Bill Lockyer and others (including that distasteful fellow in NY) to intervene with a little state-cooked antitrust litigation. As AG Watch has noted before, state-by-state antitrust oversight would lead to a bizarre and sclerotic merger world.

The budding 50 state merger process is not only overwraught and inappropriate, but stifles healthy competition as well.

Last week, NPR took some wild semantic swings at the ongoing Payola debacle. Unfortunately, they bungled the issue.

The facts (more or less): Once again, Eliot Spitzer is shocked—shocked!—that there is gambling in the casino! Sony BMG and now Warner Music settled with Eliot Spitzer to escape the glare of his Payola investigation.

The rudimentary economics: Payola has long been recognized as an efficient means of airtime distribution. That is, a “good” way to find the “best” music.

The spin: NPR began, “‘Payola’ is a dirty word.” The piece also asserted that radio was “serving the music industry at the expense of their listeners…” and that Payola-induced music was not “the best the radio station could find.”

The sociology and semantics: AG Watch itself was a little shocked that NPR roughhoused so piggily with “good,” “better,” and “best,” especially in relation to something as clearly subjective as taste in music.

Howard Becker’s elegantly comprehensive Art Worlds lances “pure aesthetics.” He writes:

“All art works involve the cooperation of everyone whose activity has anything to do with the end result. That includes the people who make materials, instruments, and tools; the people who create the financial arrangements that make the work possible; the people who see to distributing the works that are made; the people who produced the tradition of forms, genres, and styles the artist works with and against; and the audience.”

The point is that notions of aesthetic “good-better-best” are socioeconomic constructions. Mr. Spitzer’s maneuver has a (strained) legal basis, and no basis at all in ars gratia artis. The settlements are not a victory for good music or better airwaves, though they might win best AG claptrap. Facile jokes about Spitzer’s “revelation” regarding the poor quality of Britney Spears tunes, as well as jokes about Ms. Spears’s oeuvre itself, both mistake the issue; in truth, Britney’s fame owes no more to non-”musical” factors than Beethoven’s. The history of conventions and connections accounts for our interpreted world, including Mozart, Miles, Madonna, and [pause, gentle Reader] murder.

That said, gawd forbid that Spitzer chooses what spins.

Last week, the 47 states and the District—just “the District”—leveraged $8M out of the Western Union piggy bank. AGs and the Union—just “the Union”—agreed to form a “national consumer awareness program.” Or “national peer counseling program“—we aren’t sure which grandiose term will gain ascendancy.

Seems that some folks, maybe even some folks reading this, have been suckered into those silly wire fraud scams. You know, “Millions are Trapped in Nigeria (we’ll give you some of the millions, but we needs $15,000 first),” “You’ve Won the Big Dutch Award Lottery Sweepstakes (but must pay taxes to receive your winnings),” and “Gimme $30 for a little carton o’ somethin’ somethin’ via the FedEx.” Consider yourself educated.

How this the Union’s fault, we’ll never know. But, the hope for reelection springs eternal, so the AGs pounced on the money messenger. Facing a draining disagreement with AGs and the attendant public relations headache, Western Union gladly paid the $8M.

But just $8M?!?! If this is really Western Union’s fault—and not just a headline-grab ploy by the AGs—why only $8M? As the AGs are fond of noting, scam losses to Canada alone amount to $113M. Do AGs routinely get only 7% back from criminals they catch red-handed and cash-ready?

Or put another way: the $8M educational program, when spread evenly across the Western Union universe, amounts to less than forty bucks per WU location. What sort of slipshod awareness counseling do they expect to fund with $40?

AGs plan to hold American businesses and consumers hostage for non-crimes and the greedy foolishness of con patrons; can’t they at least do it effectively. If AGs had the courage of their proclaimed convictions, they would close down Western Union, prohibit tobacco entirely, ban wine, bar oil, block every transaction by which anyone prospered, make the minimum wage a million dollars, mandate a merry Christmas, and carve my turkey.

Ah, carve my turkey!

While AG Watch revelled (and then recovered) following the Harriet Miers withdrawal, Walter Olson and the Wall Street Journal kept tabs on the Attorneys General. Of course-curses!-Eliot Spitzer has broken our pact and Rhode Island AG Patrick Lynch has surreptitiously attacked the ex post facto principle.

Mr. Olson has sharply criticized General Spitzer’s overzealous answer to the question, “What Can Brown Do For You?” Mr. Olson addresses the legal implications of the UPS-Spitzer agreement to block cigarette deliveries: why is Spitzer regulating business in all 50 states? and what happens when he decides to shut down UPS shipments of other items he deems “destructive?” Or more likely, something else he would like to tax?

On top of these arguments, AG Watch would like to add a question related to the immediate commerce concerns: How do we get ahold of FedEx? (When every smoker moves their business to FedEx, UPS may reconsider the bed it shares with Spitzer.)

If smokers should shun UPS, everyone should shun Rhode Island. To recap the WSJ article [subscription; “Paint by Lawyer,” November 7, 2005], when it was perfectly legal to use lead in paint, paint contained lead-though many companies voluntarily lowered the lead content long before lead became illegal. To sue the paint companies now makes as much sense as suing the Consumer Product Safety Commission for failing to regulate lead before 1978. More importantly, as the Journal notes, “A better way to protect [children at risk of lead poisoning] would be to pursue landlords who don’t maintain their properties, rather than hooking up with contingency-fee lawyers to loot the paint industry for products that it believed to be safe when they were sold 30 years ago.”

The RI AG suit has the whiff of “recovered memories.” Sure, some long-past harms may have force, but most, such as this one, are simply ways to rob “deep pockets” by inventing harms that weren’t understood as harms when they occurred.

Hmm…come to think of it, 20 years ago, AG Watch was deprived of internet access by its parents (Mr. and Mrs. Watch) and wasn’t even offered DSL by the local cable provider. To think of the lost opportunity to AG Watch…oh, the horror! The aggregate pleasure of all those unsmoked cigarettes…oh, the indecency! Now, give us $30 so we can order a little carton o’ somethin’ somethin’ via FedEx!

Wisconsin Attorney General Peg Lautenschlager plans to sue the Milwaukee Metropolitan Sewerage District (MMSD). Though the thought of an AG navigating the sewer system has some charm, the suit irresponsibly squanders money that should be spent unplugging Milwaukee’s pipes. In fact, as MMSD Commission Chair Jeannette Bell stresses in her response to the suit, the Clean Water Act and a preexisting 2002 court order (signed by the Attorney General) make the suit redundant and wasteful.

Badger State Representative Jeff Stone gets the gold star for his analysis: “The idea of suing MMSD to force the district to better serve the constituents in the community is backwards…What is even more unbelievable is that we are using taxpayer’s money to sue taxpayers. What good can come of this effort? …If the Attorney General wants us to flush money down the drain she should consider who will need to clean it out of our water supply.”

The Upside-Down Federalism of the Attorneys General is foolish enough when it “works correctly.” But the Dairy Country AG needs even that cheese-headed concept explained to her. Ms. Lautenschlager, the idea is this: use the leverage of a costly suit to wrench obscene settlements from businesses with a global shareholder and consumer base, slush the settlement into the home state general fund, and repeat. Basically, play the part of a politico Robin Hood on Quaaludes: take from the citizens of other states and give to the citizens who elect you.

Suing your own citizens for crimes against themselves? I guess it only makes sense according to the brain sewage of AG Logic.

Because AG Watch likes the ludicrous, California AG Bill Lockyer’s suit against Big Tuna has us, well, hooked. Sentences such as “Defendants sell Tuna Products” and “The true names and capacities of the defendants sued herein as Does 1 through 100 are unknown to plaintiff, who therefore sues them by such fictitious names” amount to a truly ridiculous complaint. Imaginary fishmongers on trial; if Kafka isn’t court stenographer, we’re protesting.

The tuna companies have fought back. Thankfully, their attorney has a sense of humor. He claimed in court, “The only warning that would be appropriate for canned tuna would be: Warning, not eating enough of this product could be hazardous to your health.” But he isn’t jesting entirely: the FDA supports Big Tuna in the suit, even advising Mr. Lockyer to release the Fish Men.

California’s Prop 65, the cause of this fishiness, is federally preempted according the the FDA. The Proposition, also known as the Safe Drinking Water and Toxic Enforcement Act of 1986, is an exercise in health-nut semiotics. The suit alleges that the Tuna People (and Non-People) didn’t adequately provide, “(A) warnings on labels, (B) identification at the retail outlet through ’shelf labeling, signs, menus, or a combination thereof,’ and (C) ‘a system of signs, public advertising identifying the system and toll-free information services, that provides clear and reasonable warnings.’”

But Lockyer isn’t really interested in the relationship of signifier and signified. He just wants cash from Starkist. Tsk! Tsk!

No wonder Saussure went batty. And he went wherever I did go.

Judge Sidney Stein hammered Eliot Spitzer with a brutal right-left combination. Spitzer, according to the dual rulings, cannot trump the Office of the Comptroller in banking regulations and has to defer to the Clearing House Association in the housing lender realm.

Licking his wounds, Spitzer also dropped the remaining four counts of the 29 he brought against with Theodore Sihpol. A jury acquitted Siphol of the first 25 charges in June.

Spitzer’s lifetime record against Sihpol: Zero wins, zero ties, twenty-nine losses.

Too bad The Spitz didn’t nominate Harriet Miers.

The DC brain-blender rarely leaves the capital’s citizens pitying their cross-Potomac counterparts. Still, to people for whom federally-funded decorative bamboo seems a satisfactory public expenditure, the Virginia AG election stands out as muddled governance.

A recent debate between contenders Creigh Deeds and Bob McDonnell exemplifies the improvident incentivization for Attorneys General nationwide. Both candidates promised to increase the transportation budget of the state. On the most narrow margin (traffic law enforcement), the aspiring quasi-executives might have had probable cause to enter a budgetary discussion. But, in the main, nothing in the Virginia state Constitution or even the VA AG’s own description of the office licenses the Attorney General to build roads. Furthermore, these fellas are fussing over I-81, an interstate highway governed, presumably, by the Department of Transportation.

All politicians are promissory animals; arguably, few deliver their promises. McDonnell and Deeds differ only in that their promises rest on lawsuits of dubious legality. But why shouldn’t they make such promises? Publicly elected private enforcers have one-way motivation: sue, regardless of harm. If they don’t, people might notice that the ideal AG has little power. Or they might forget the Attorney General altogether.

Alas! He sues, and sues forever. A thousand years from now, Virginia, nay, ten times ten thousand years from now, he will continue to make sad the heart of citizenship.

When the Supreme Court ruled that Michigan could not prohibit out-of-state wine merchants, pinot patrons rejoiced from Ishpeming to Ypsilanti. Hey, more chardonnay means more melon blanc! Am I wrong?

I am wrong. Michigan AG Mike Cox has requested that a federal judge also ban in-state wine shipment for the time being. No booze for anybody from anybody, not in Michigan, pal! Cox argues that temporary temperance would allow the state legislature to amend the unconstitutional wine law. Ordinarily, AG Watch would give him the benefit of the doubt and let it slide…But!

Florida AG Charlie Crist filed a second gas-gouging suit. AG Watch ignored the first suit—as AG Watch’s mother would say, “everyone makes mistakes.” In any case, AG Watch commented already: Crist can either show collusion among Tallahassee petrol providers or reveal his own poor understanding of the pricing system …But!

These two seemingly unrelated events didn’t sit right…And that’s when it hit us: the Attorneys General—surely childhood’s wicked fantasms come to life—are trying to get rid of liquid! Tired of overrunning states of the union, the AGs have started an assault on a state of matter. Gasoline, check. Wine, check. Milk? Check. If an AG asks for a glass of water, RUN!

But run where? These people seem to have infinite juristidiction. Hmmm…a place AGs can’t invade?

Pull on your hip waders! It is gettin’ pretty deep along the ArkLahoma border.

Oklahoma Attorney General Drew Edmondson has had it with the…ahem…phosphorus that little Arkansas chickens dump into the Illinois River. Water, like something better not named, always runs downhill-in this case, into Oklahoma.

Chickens aren’t the only ones dropping P into the H2O. Edmondson’s actions are certainly unpopular in Arkansas, but have also spurred the Oklahoma legislature to consider revoking the home state AG’s power to sue.

Kickbacks, of course, are at the bottom of the coop. Edmonson has farmed out the litigation for the suit to campaign contributors; one-third of the booty from the case will go to firms whose letterheads coincide happily with the Edmondson donor list (Riggs, Orbison, Turpen, Neal).

In a seeming effort to balance the scales of suspect donations, the Oklahoma Scenic Rivers Commission has accepted a $1.1 M “grant” from the poultry industy in exchange for a bevy of “commendations.” Edmondson objects to the grant and his suit remains. The various interests of the state clearly conflict.

So many contradictions and countervailing contributions make for a situation as furcated as the Illinois River itself. Nothing apprehensible grows from this fertilizer of shady deals and chicken dung; the whole heap amounts to a multiple choice money-grab.

Understandably, Mississippi Attorney General Jim Hood hopes for a felicitous resolution of the ruin and grief in the Magnolia state. He brings a lawsuit against insurers.

Mr. Hood has a clear syllogism: Insurers cover damages; we have damages here: insurers should cover these damages. The syllogism, however needful it seems, compounds the sadness in the Gulf. As the hometown Biloxi Sun-Herald clarifies painstakingly, “This has two dangerous consequences:

1. It gives some devastated property owners false hope by cruelly raising their expectations that suddenly contracts don’t matter in Mississippi.
2. It tells business owners - not just of insurance companies, but owners of businesses in all industries - that in Mississippi a deal isn’t necessarily a deal.”

The American Insurance Association’s response to Mr. Hood’s suit reframes the problem. Private insurers, for the most part, were not involved in flood insurance in the Gulf Coast. But the AIA misstates the situation as well, falsely claiming that the federal government provides flood insurance. In truth, most people have no flood insurance and had none when Hurricane Katrina touched land.

The National Flood Insurance Program—a testament to the blurrily distorting quality of “protective” federal bureaucracy—subsidizes flood insurance for qualifying structures through private insurers. As the NFIP explains, “Many people wrongly believe that the U.S. government will take care of all their financial needs if they suffer damage due to flooding.” NFIP offers insurance subsidies to those who purchase insurance and, to the rest, NFIP offers a mirage of federal security shimmering behind disused and jurisdictionally indistinct local government.

John Tierney says rightly, “The federal government has a role in coordinating flood control among states and in organizing outside disaster relief, but the locals should fight floods much the same way they fight fires” (New York Times, 9/3/05); that is, by sound local institutions and self-assured insurance—not, as Mr. Hood prefers, by post facto contractual relativism.

Leadership requires a contemplative courage that borders on coldness. Our hopes are with Mr. Hood’s, but we urge him to reconsider the suit: no dirge or deal can undo what is done; only by cool reason and cautious concern may we forge a less imperfect future.