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NBI Seminar: Discovery, Lay Witnesses & Experts

I  recently had the great opportunity to lead (perhaps “teach”) a continuing legal education seminar hosted by the National Business Institute (a.k.a. NBI, see here).  The subject was “Divorce Procedure & Settlement Agreements” and I had opportunity to speak on four main topics in particular: Client Screenings & Case Strategy, Filings & Pleadings (with Sample Language), Discovery, Lay Witnesses & Experts, and Alternative Dispute Resolution.

Although NBI published the materials, I retain the ownership of the portions I wrote, which I will post here in this blog.

Copied below are the materials I wrote for the section entitled “Discovery, Lay Witnesses & Experts.”

Thanks!

__________

Discovery, Lay Witnesses & Experts

  • Basics

            Discovery is an important part of virtually every divorce.  There are a variety of ways to secure the information necessary to adequately navigate the client through the property division process.  First and foremost, having the client secure and furnish the lawyer all of the documentation and information he has in his possession is the easiest and presumably fastest way to obtain it.  If the client does not know what all is owed/owned by the parties, or cannot secure information and/or documentation, and/or is simply uncertain, it may be a good idea to conduct formal discovery.  How complex or intense or comprehensive the discovery process will be depends on the client’s resources to sustain the discovery process, and the complexity of the particular case.  More often than not the parties have a good idea of who s/he owns and/or owes and what the spouse has as well, so the discovery can be fairly focused.

            A first step for an attorney to take after a client hires him for a divorce is to create some sort of list, spreadsheet, or chart of all the known assets or liabilities of the marriage that is easily sortable, readable, and modifiable, so that one can have a clear picture of the marital finances as information becomes available.  When creating the spreadsheet, be sure to distinguish between premarital / separate property, joint (or comingled) property, marital property, post-marital property, and/or anything covered by a pre/post nuptial agreement.  It is important to remember that just because one’s client’s name (or the spouse’s name) does not appear on a particular asset, does not mean that party does not have a marital interest or claim on that property in divorce.  It is also wise to instruct one’s client to gather all documents in his/her possession as soon as possible before the opposing spouse takes them and/or disposes of them.

            Discovery in the context of divorce is not substantially different, in terms of procedure and forms, from discovery in most other forms of typical civil litigation.  Typical discovery requests consist of interrogatories, requests for production of documents, and admissions.  It is worth noting that while discovery is generally permitted in divorce, it requires leave of court in other areas of family law (e.g. custody, support, etc).

            For those unfamiliar, interrogatories are merely a list of questions to the other party asking for various information regarding the marriage and the property held by it.  Requests for Production of Documents is pretty self-explanatory: it is merely a list of requests for particular documents regarding the marriage and the property held by it.  Requests for Admissions are little unusual in divorce cases, but they are sometimes used.  A Request for Admission sets forth a statement of purported fact, and requests the responding party to admit it, or deny it with specificity. Under Pa.R.C.P. 4014 admissions that go without a substantive response within thirty (30) days of service are supposed to be deemed admitted, so there is some pressure to respond to them, however court decisions under this Rule have removed most of its teeth, which has resulted in the hard thirty (30) day deadline having very little bite.

            Responses to all discovery requests are, of course due within thirty (30) days per the Rules of Civil Procedure.  If no responses are forthcoming after thirty (30) days, then one must remind the opposing party/attorney in good faith that the responses are due.  If, after a reasonable time, the responses are still not forthcoming, then a motion to compel discovery (and for sanctions if appropriate, see P.R.C.P. No. 4019) may be necessary.  Like any other form of civil discovery requests, the responding party can always object to a particular request as being overbroad or burdensome or some other objection, which can be resolved by a judge.

            Of course, one need not always send the opposing party the discovery requests.  Each party also has the right to issue subpoenas for documentation from third parties if the opposing party refuses and/or cannot furnish the requested documentation.  Of course, a subpoena is typically for documentation that is not in the name of the client.  Sometimes it may be more effective to send the opposing party a set of authorizations to sign along with the discovery requests.  The authorizations can be for various banks or financial institutions (for example) giving the opposing party and/or his attorney permission to go to those banks or institutions directly to secure the desired documentation.

            Finally, depositions are also a possible way to conduct discovery.  A deposition is simply like an interview that is under oath and held before a stenographer.  The attorney who requests the deposition may ask the person being deposed (e.g.: the opposing spouse) a variety of probing questions in order to gather information and data.  A spouse is an obvious target for a deposition, but tax preparers, financial planners, and co-workers, among others, can also be good candidates for deposition.

  • What to request

            The things one can request in discovery may seem overwhelming at first as the possible options seem almost listless.  It may seem obvious, but documents one should request should generally involve or reflect the assets, income, debts, and/or liabilities of the parties.  Below are some suggested items about which one may issue a discovery request:

  • Bank accounts (individually, jointly, or with a third party);
    • this may include cancelled checks;
    • savings, checking, CDs, money market accounts, etc;
    • this helps with tracing money expenditures;
      1. This may give a lead to investigate accounts the other party has refused to disclose;
    • Paypal?
  • Real estate (individually, jointly, or with a third party);
    • mortgages and liens on the real estate;
    • Dates of acquisition;
    • Names on the deed(s);
  • Businesses (e.g.: a landscaping business, or law firm, or pizza shop);
    • This opens up a whole subset of discovery about the assets, liabilities, income, debts, of the business(es);
  • Cars, boats, and other large items;
    • Outstanding notes/loans for the same;
    • Approximate current value;
    • Dates of acquisition;
    • Names on the title(s);
  • Jewelry, art, collections, memorabilia, and any other personal property of any significant value;
  • Stocks, bonds, investments for the most recent five (5) years;
  • Pensions, 401(k)s, IRAs, retirement funds, annuities, defined pension plans, etc;
  • Tax returns for the most recent five (5) years.  These will include crucial information regarding:
    • income from all employment;
    • capital gains;
    • interest;
    • dividends;
    • investment distributions (e.g.: IRAs);
    • unemployment compensation, social security, etc;
    • W-2s and 1099s;
    • Refunds (sometimes a party overpays taxes in order to receive an artificially large refund);
    • Deductions (this may provide a lead to undisclosed assets);
  • Pay checks / stubs;
  • This is related to the “Businesses” noted above.  If someone is self-employed, there is always a chance that what is being reported on a tax return regarding business income is not precisely accurate.  As a result, discovery into some of the inner workings of a business may be illustrative.  For example, if a spouse runs a pizza shop, then perhaps discovery into cash register receipts, supply purchases, payroll, and/or business purchases may be helpful to discern what the actual business income is;
  • Any documentation of loans a party may have, especially the application for the loan which likely has financial disclosures on it.  This will enable the attorney to compare and contrast the financial disclosures on the loan application with what the party claims;
  • Copies of any and all bills, utilities, expenses, paid;
  • Gifts;
  • Law suits, and other legal claims;
  • Social media;
    1. This may reveal other relationships, employment, money expenditures, activities, locations, etc.
    1. Try to keep social media posts to a minimum;
    1. Looking at the public parts of someone’s social media accounts is fair game;
    1. Do not send a friend request (or something similar) to the opposing party, which would allow one to see otherwise private material;
    1. Access?  This is balanced by probative value.
  • Text messages, emails, electronically stored data (do not forget cellphones, ipads, etc, if relevant).

            When it comes to social media, a client should be advised to be sensible and temperate.  Avoid online fights, insults, openly discussing the divorce, or mistakenly posting something that could be “incriminating.”

            Authentication of social media and text messages for use at a hearing is a new area of the law, so tread carefully.  Simply having the right telephone number or user name on the text or post will not be sufficient in and of itself to authenticate the text or post as there is no way to confidently discern who sent it or posted it.  It seems the Court will evaluate texts and social media posts on a case-by-case basis by taking a holistic view of the post/text with full consideration circumstantial evidence that could link the text/post to a certain person.

            Finally, witnesses – both lay and expert – are often called upon to testify at a deposition or hearing.  Lay witnesses can testify to what s/he has seen or heard regarding what the parties have done, spent money on, and/or said about their finances.  For example, an employee of the spouse’s pizza shop may be able to testify as to how much business it does, where the money is kept, and/or how its finances are managed.             Sometimes expert witnesses are required to discern or illuminate a couple’s financial picture.  For example, a forensic accountant may be needed to piece together the disparate financial documents and evidences to form a coherent financial picture.  Perhaps a tax preparer, or realtor, or accountant may be needed to shed light on a disputed economic issue.  Of course, in the twenty-first century, it may also be necessary to have some sort of technology/computer expert to discern whether electronic information was deleted to altered.

YALE LOSES AN INSPIRATION

Seaside, Florida, is one of the exemplary achievements of New Urbanism, the school of architecture that favors mixed commercial/residential spaces, common grounds such as the old village green, and pedestrian-friendly roadways. Seaside became especially famous as the setting for the 1998 film The Truman Show, which portrayed the town as an ideal environment for middle-class life.

In Seaside’s town square is a building with a solid three-story wall, featuring a giant mural of a distinguished-looking old man with a pensive look on his face. He seems out of place. Kids stack their bikes at the foot of the wall. Trailers selling sno-cones, doughnuts, barbecue, and hot dogs are just across the drive. Nobody wears a coat and tie as the man on the wall does.

His name is Vincent Scully, longtime professor of art history at Yale University and, for a time, at University of Miami. Scully’s visage presides over Seaside because many of the town’s architects took his classes at Yale, where they encountered the masterworks of the past. In his courses, Scully spoke of these works as if they were entirely pertinent to the modern world. His instruction was formative for the New Urbanism. (If you stroll around Seaside, you can see evidence of architectural history embedded in the “beachy” designs and colors and materials.)

He was an electrifying lecturer. An account of the mural in the local paper says, “His undergraduate lectures at Yale were always standing-room-only.” None of the people wandering around the town square now know who Scully was, but everything that draws them there can be traced back to him—to Scully lecturing Seaside’s creators, in their 20s, in “Introduction to Art History: Renaissance to the Present.”

I first visited Seaside more than 20 years ago, touring it with a friend who had a cottage in Grayton Beach a mile away. In fact, this was when The Truman Show was being filmed. The town wasn’t yet complete, but the moment you crossed the boundary line you knew you had entered a visionary space. The houses, the layout, the green spaces, the small shops . . . they were the result of an outlook in which form followed human need, not just function. It took an architectural historian from Columbia whom I met a few years later to explain to me who Scully was and how he shaped the Seaside project.

Which makes what happened at Yale University this year especially dismaying. It’s a familiar tale: “Introduction to Art History,” a longstanding course in a Western Civ tradition taught over the decades by renowned professors and packed with eager students, undergoes a diversity revision. Too many white males, too Eurocentric, too neglectful of non-Western voices and cultures. Time to take it down.

The prototype episode is Stanford 1987, when Jesse Jackson led 500 students in a march around campus protesting the general education requirement that was fulfilled by the course “Western Culture.” They chanted as they marched, “Hey hey, ho ho, Western Culture’s got to go!” One year later, the faculty complied, replacing Western Culture with a bundle of offerings that included a sufficient amount of non-Western culture and works by women and people of color. (An important new report from the National Association of Scholars, authored by Stanley Kurtz, recounts the Stanford episode in detail and explains how Western civilization disappeared from Stanford and every other major campus in the decades that followed.)

The chair of Yale’s Art History department mouths the standard rationale. He told the Yale newspaper that non-Western cultures are “equally deserving of study” and that singling out the Western tradition is “problematic.” It’s as if he’s reading the talking points handed out to every humanities department chair since 1987. From now on, Yale will replace the old survey course with thematic courses such as “Art and Politics” and “Global Craft” and “Sacred Places.” They will all be diverse. We may be sure, too, that they will include the premise that Western Civ is a hidebound conception.

I don’t bother to debate the diversifiers any more about the value of Western Civ curricula. They know what’s politically correct, and they follow the herd. My experience, too, has been that their learning in the tradition is fairly shallow. Besides that, I’ve spent too many hours losing the battle again and again—in committee rooms at my own universities and while working on projects for College Board, Common Core, and other national organizations—not to realize the war is over. The multiculturalists won, the traditionalists lost.

But let’s understand the nature of their victory correctly. When Stanford replaced Western Culture with a multiculturalist course, most of the students didn’t like it. A curriculum review six years later found that 72 percent of the students rated it poorly. It wasn’t the diversity that bothered them, but the incoherence of the offerings—a little of this culture, a little of that, something old, something new . . .  Stanford eventually scrapped it. (The Kurtz report has all the documentation for the outcome.)

It’s a story that has been repeated across the country. As the humanities have become more diverse and less Western, enrollment has plummeted. Since 2011, the number of majors in history has fallen more than 30 percent, with the number of English, philosophy, and foreign languages majors falling more than 20 percent. The Rainbow Coalition at Stanford trashed the Western Culture course, but in fact it was one of the most popular undergraduate experiences at that tech-heavy campus. And now it’s gone. An effort by conservative students at Stanford three years ago to revive it was met by charges of racism and xenophobia.

The same decline will happen at Yale. Does anybody expect that “Art and Politics” will inspire the creation of something as beloved as Seaside? Do the teachers think it will draw more sophomores to the major? These professors may enjoy their multiculturalist virtue as they introduce fewer students to Giotto’s chapel and The Raft of the Medusa, but they will never see their countenances memorialized in the public square.

By Mark Bauerlein and published in First Things in January 2020 and can be found here.

NBI Seminar: Divorce Procedure & Settlement Agreements – Filings & Pleadings (with Sample Language)

I  recently had the great opportunity to lead (perhaps “teach”) a continuing legal education seminar hosted by the National Business Institute (a.k.a. NBI, see here).  The subject was “Divorce Procedure & Settlement Agreements” and I had opportunity to speak on four main topics in particular: Client Screenings & Case Strategy, Filings & Pleadings (with Sample Language), Discovery, Lay Witnesses & Experts, and Alternative Dispute Resolution.

Although NBI published the materials, I retain the ownership of the portions I wrote, which I will post here in this blog.

Copied below are the materials I wrote for the section entitled “Filings & Pleadings (with Sample Language).”

Thanks!

__________

            Filings and pleadings in divorce typically follow established and customary forms.  The typical divorce pleading does not need significant detail when it comes to specific property or issues.  The pleadings merely serve the purpose of establishing what the claims are in general and not to any specific piece of property.  Unlike other forms of litigation, there is not any significant advocacy in a divorce complaint (e.g.: arguments or assertions of entitlement to certain pieces of property, etc).  A divorce complaint primarily establishes what grounds for the divorce are claimed and what other related claims are being sought (e.g.: alimony, equitable distribution, etc.).  Of course, no property claim need to be asserted if one does not think it is necessary (e.g.: there is little to no property to divide, or all the property sought by the client is in his/her own name and, therefore, no division is necessary for that party).

            Of course, one has to establish whether a fault or no-fault divorce is to be pursed.  Alternative pleading is permitted (keep in mind one must always consent to one’s own divorce), but, as divorce is an emotional and personal process, raising fault claims, which are extremely unlikely to be the basis on which the divorce is granted, may only cause unnecessary emotionality on the part of the opposing party.

            Upon filing the complaint, it must be served within thirty (30) days (or ninety (90) days if out-of-state) upon the opposing party.  Service must be: (1) via personal service; (2) via certified mail (signed by the opposing party); (3) and/or through a voluntary acceptance by the opposing party (via an Acceptance of Service).  If the complaint is not served within thirty (30) days, it must be reinstated before another attempt at service is made.

Divorce case timeline:

            The sequence of the typical divorce case is fairly predictable in terms of litigation, which proceeds as follows:

  • Complaint;
    • Affidavit Under 3301(d);
  • Notice of Counseling;
    • by statute most divorce litigants are entitled to three counseling sessions upon filing for the same;
  • Service of Process;
    • the Complaint must be served within thirty (30) days of filing, otherwise it must be reinstated;
    • Affidavit of Service / Acceptance of Service / Affidavit of Signature;
  • Counteraffidavit;
  • Answer and Counterclaim;
    • there is no default judgment as with a typical civil case.  Instead, the Notice procedure needs to be initiated before a decree is entered (see below);
    • the Counterclaims are whatever divorce claims one wants to include, especially ones that have not been raised in the initial Complaint (e.g.: alimony or equitable distribution);
    • a defendant can pursue a decree on the strength of his counterclaims regardless of what the plaintiff does or does not do;
  • (parallel litigation: custody, support, and/or alimony pendente lite);
  • Motion practice (if necessary);
    • e.g.: exclusive possession, motions to compel, petition for special relief, spoliation issues;
  • Affidavit of Consent (for 90 days for divorce by consent under 3301(c)) or Affidavit Under 3301(d) (for divorce by one (1) of separation);
    • an Affidavit of Consent cannot be filed before 90 days have elapsed after service of process of the Complaint.  It also must be filed within thirty (30) days of execution;
  • Discovery
  • Options to transmit (there are two parts to every divorce: grounds and property division);
    • Notice of Intention: for grounds or to transmit;
      • this gives the opposing party twenty (20) days to take action before a grounds order is requested;
    • Notice to Withdraw economic claims;
      • this gives the opposing party twenty (20) days to take action before the claims are withdrawn;
    • Praecipe to Transmit or to approve divorce grounds;
      • this gives the opposing party twenty (20) days to take action before a decree is requested;
      • this also may include an Affidavit of Non-Military Service (if the opposing party is unrepresented);
  • Property Settlement Agreement or Certification for a Divorce Master;
  • Decree (or decree and order).

SUPER SPOOFER Professor uses ‘feminist buzzwords’ to get entire passage from Hitler’s ‘Mein Kampf’ published in academic journal

Peter Boghossian and his colleagues said they were stunned by how easily the joke papers were published in what he described as ‘grievance studies’

Peter Boghossian helped create a series of spoof academic papers to satirise a number of fields including what he describes as the “grievance studies” – including fields on gender, obesity and homosexuality.

The assistant philosophy professor at Portland State University in Oregon penned a total of 20 “intentionally broken” and “nonsense” papers with the help of two collaborators.

Each of one was deliberately ridiculous – but astonishingly seven were accepted by peer-reviewed journals, The Times reports.

One, “Our Struggle is My Struggle: Solidarity feminism as an intersectional reply to neoliberal and choice feminism”, was a rewrite of chapter 12 of Hitler’s 1925 autobiographywith feminist “buzzwords switched in”.

All the spoofs featured “very shoddy methodologies including incredibly implausible statistics”, as well as “ideologically motivated qualitative analyses” and “claims not warranted by the data”.

 
Hundreds of students at Portland State University appear to be backing their Professor in the wake of the scandal.
 
The deliberately provocative hoax included a rewrite of chapter 12 of Hitlers Mein Kampf.

Further bizarre passages includes one published under the fake name Helen Wilson in the journal Gender, Place & Culture, owned by Taylor & Francis, the British publisher.

This was supposedly an investigation of the “rape-condoning spaces of hegemonic masculinity” and had involved examining “10,000 dogs’ genitals” in public dog-walking parks.

The paper suggested that men should be trained, like canines, to prevent “rape culture”.

Another wrote: “It is suspicious that men rarely anally self-penetrate using sex toys, and that this is probably due to fear of being thought homosexual (“homohysteria”) and bigotry against trans people (transphobia)”.

Another letter of support. This one from @RichardDawkins. Thank you.

 

View image on Twitter
Dr Boghossian and his colleagues said they were stunned by how easily the joke papers were published.

“We wanted to see if these disciplines that we called ‘grievance studies’ are compromised by political activism that allows for the laundering of prejudices and opinions into something that gets treated as knowledge,” he said.

World-renowned scientist and atheist Richard Dawkins was one of a number of leading academics to write to the university in support of Boghossian, saying that his first response to the “brilliant hoax” was “to let out a howl of incredulous mirth”.

“Do your humourless colleagues who brought this action want Portland State to become the laughing stock of the academic world?” he wrote.

Leading academics including Richard Dawkins have given their backing to an ‘elaborate’ hoax.

“Or at least the world of serious scientific scholarship uncontaminated by pretentious charlatans of exactly the kind Dr Boghossian and his colleagues were satirising?””

A student of Boghossian’s, Austen Holmberg, added: “I firmly believe that Peter’s actions are extremely valuable in that they have made crystal clear the disheartening corruption and pseudo-scholarship that has taken a foothold in academia.

An official for Portland State University said that Dr Boghossian had studied “human research subjects” without proper ethical approvals, The Times reports.

A further charge regarding the falsification of data is under review.

By Phoebe Cooke and published in The Sun on January 10, 2019 and can be found here.

 

NBI Seminar: Divorce Procedure & Settlement Agreements – Client Screenings & Case Strategy

I  recently had the great opportunity to lead (perhaps “teach”) a continuing legal education seminar hosted by the National Business Institute (a.k.a. NBI, see here).  The subject was “Divorce Procedure & Settlement Agreements” and I had opportunity to speak on four main topics in particular: Client Screenings & Case Strategy, Filings & Pleadings (with Sample Language), Discovery, Lay Witnesses & Experts, and Alternative Dispute Resolution.

Although NBI published the materials, I retain the ownership of the portions I wrote, which I will post here in this blog.

Copied below are the materials I wrote for the section entitled “Client Screenings & Case Strategy.”

Thanks!

__________

            The first step in almost any lawyer/client interaction is the initial client interview.  This initial interview is to allow the lawyer to meet and get to know his client and obtain necessary information.  While clients may like the face-to-face meeting, a more effective way to secure important data and information from the client at the beginning of one’s representation is through a questionnaire, checklist, and/or an interview sheet.  This is an opportune time to gather information about financials, pre/post – nuptial agreements, personal property, bank accounts, and a general story of the case.

            The questionnaire or checklist is a good method to collect information for a few reasons.  First, if a dispute arises between the attorney and the client later in the course of representation, the attorney can point to the questionnaire as a justification for taking some actions or not taking others.  Second, it is a better use of a client’s time and money to take the time to prepare it as opposed to making the attorney a stenographer simply writing everything the client reports.  Third, it also helps the client to take the time to organize his thoughts and have everything in one place.

            Some information and documents to collect (for both parties if possible) when interviewing the client includes:

  • names;
  • contact information (mailing address and residential address);
  • social security numbers;
  • marriage and separation dates;
    • establishing these dates is critical as these dates frame how the value of marital property is calculated;
  • the names and ages of the children of the marriage;
  • employment history and income information (especially tax returns);
  • assets:
    • real estate;
      • mortgage?;
      • value?;
      • who is on the deed?;
    • bank accounts;
    • investment accounts;
    • retirement accounts (note survivor benefits);
    • health insurances;
    • life insurances (note beneficiaries);
    • personal property (including collectables);
    • inheritances?;
    • automobiles, boats, etc.;
    • personal injury or workers’ compensation claims;
  • businesses owned;
  • liabilities;
    • credit cards;
    • mortgages;
    • loans;
    • timeshares;
    • student loans;
  • ancillary custody and support issues;
  • education background;
  • medical limitations.

            Of course, the initial client interview also allows the client time to ask whatever questions he may have about the law or the process he is about to undertake.  This is a great opportunity to explain to the client the anticipated length of time the case will take and how property ownership works in the context of divorce.  For example, it is a common misconception among clients that property in one’s own name (and not in the other spouse’s name) is the exclusive property of that client in a divorce, and helping to clear that up – and other issues – helps the client have more realistic expectations as to how the case will unfold.

            After meeting with the client and gathering all the available information and documentation, the attorney can devise a strategy as to how to proceed.  Each case is unique and, therefore, needs a unique approach.

Some actions you may need to consider are the following:

  • determine which property and assets are marital, pre-marital, post-marital;
  • determine on a separation date;
  • can the other spouse be found to perfect service of process?;
  • freezing bank accounts;
  • will custody or support need to be litigated as well?;
  • freezing credit cards;
  • is a PFA in play, or could one soon be filed?;
    • if so, how will this impact divorce, custody, and/or support?;
  • is this a case that will go to a trial or will it settle?  Is an alternative method of resolution an option?;
  • will the divorce be fault or no fault?;
    • fault divorce:
      • examples of faults: abandonment (one year or more), adultery, abuse (i.e.: cruel and barbarous treatment), etc.;
      • Fault divorces are rare.  They account for only about five to ten divorces per year in Pennsylvania;
      • it is worth noting that fault divorces are risky inasmuch as they can be lost.  In other words, the spouse claiming the other committed a marital fault bears the burden of proof to prove that fault.  If the court rules that the fault was not proven, then the divorce will be dismissed and the parties will remain married;
      • it should be noted that whether a divorce is fault or non-fault has no bearing on how the marital property is to be divided.  Choosing to pursue a fault based divorce is really only for personal reasons, as there is no legal benefit to pursue one as opposed to a no fault divorce.  The only possible effect a fault may have is to render a spouse ineligible to collect spousal support if it is proven that s/he committed a fault;
    • no fault divorces:
      • can one be secured via consent (i.e.: 3301(c)), which only requires a ninety (90) day waiting period after service of the complaint?;
        • sometimes delaying a client’s consent to a divorce can give that client leverage and/or negotiating power when negotiating a settlement.  Indeed, if one party is collecting spousal support, it may behoove that party to withhold consent in order to maximize support;
        • it is important to note that one cannot refuse to consent to one’s own divorce.  If someone files for divorce on the basis of consent, then one must file an Affidavit of Consent.  Refusal to do so could lead to the dismissal of the divorce complaint.  The reason for this is that one cannot benefit (e.g.: spousal support) from one’s own refusal to pursue one’s own case;
      • will the divorce be secured unilaterally based on a period of separation of one (1) year or more (i.e.: 3301(d))?;
        • no consent is required once the year of separation has elapsed;
      • as long as the legal grounds are established (i.e.: Affidavits of Consent are filed in a timely manner or there has been a one (1) year separation), no fault divorces do not require a hearing to determine, or justify, the grounds for the divorce (hence being “no fault”);
        • a hearing, if required, will determine what the separation date is and/or how marital property should be divided;
  • practical issues:
    • are there substance abuse issues?;
    • are there physical abuse issues (is a PFA appropriate?);
    • should your client see a therapist?  What about the children?;
    • wre all the household expenses being paid?  By whom?;
    • what about insurance (e.g.: health, home owners, car, life)?;
    • does the client have to go back to work?;
  • when did the parties separate?;
    • establishing a separation date is critical as it sets the end date (the marriage date is the start date) for the calculation of the value of much of the property at issue in a divorce;
    • the separation date also begins the countdown for the one (1) year separation required by Section 3301(d);
    • separation does not require physical separation.  Separation is when at least one (1) of the parties no longer believes s/he is living in a marriage relationship (i.e.: the “cessation of cohabitation, whether living in the same residence or not.”);
    • one way to establish separation is to look at the actions and behaviors of the parties.  Moving out of the marital home is an obvious indicator of separation, as is the cessation of sexual relations (but how do you prove this? It could be rather unseemly.), but there are subtler things are as well, like retaining a divorce lawyer, moving into another bedroom, opening up a new bank account in a single name, and/or using a maiden name again.  Of course, another way to clearly establish a separation date is for one party to declare/claim one in writing to the other party;
    • if there is a dispute as to what the separation date is, it will have to be resolved at a hearing in court.  As mentioned above, the separation date may have a significant impact on the value of marital property;
    • a clear and bright line separation date is the filing of the divorce complaint.  The filing of the divorce complaint is the default date for separation if no other date is ultimately chosen;
    • of course, separation can be reversed through reconciliation, which would, obviously reverse the indicia of separation: parties move back in with one another, resume having sex, and/or withdraw the complaint, etc.  As reconciliation reverses separation, if the parties separate again, the value of property is the recalculated according to the new separation date.  Again, whether reconciliation happened is a factual matter a court may need to determine.  A failed attempt at reconciliation does not necessarily qualify as a reconciliation that would lead to recalculating the value of marital property.  It is very fact dependent;
    • a separation date can be established by court, stipulation, or simply not contesting the date claimed by the other party;
  • would the parties be amenable to a separation agreement (which is basically a post-nuptial or domestic relations agreement)?  Separation agreements are not common in Pennsylvania, but they may be helpful in establishing ground rules while the divorce is pending;
  • there is no category of “legal separation” in Pennsylvania.  There is only married, single, and divorced.

            Discovery is an important part of virtually every divorce.  There are a variety of ways to secure the information necessary to adequately navigate the client through the property division process.  More on the discovery process is mentioned below. 

Officials Announce When, Where First Speed Cameras Will Be Installed On Roosevelt Boulevard

I have been writing in opposition to traffic cameras for a few years now (you can find all of my articles and posts on traffic cameras here).  They are consistently controversial and violative of basic rights as described in the article below.

__________________________________

PHILADELPHIA (CBS) — Speed cameras are coming to Roosevelt Boulevard in Philadelphia and we now know more about when they will be installed and where they will be located. Philadelphia’s Parking Association announced on Friday that installation will start on Monday, Jan. 13.

 
The first camera will be installed at Roosevelt Boulevard and Banks Way.

We’re expecting to learn more about the timeline for the other cameras at a press conference on Monday.

Officials will put cameras in eight different spots along Roosevelt Boulevard.

by CBS3 Staff

Officials Announce When, Where First Speed Cameras Will Be Installed On Roosevelt Boulevard

How America Killed Play—and What We Can Do to Bring it Back

In our last piece from our interview with play expert Dr. Peter Gray, we outlined the five criteria of play. For an activity to truly be considered play, it must:

  • Be self-chosen and self-directed
  • Be done for its own sake and not an outside reward
  • Have some sort of rules/structure
  • Have an element of imagination
  • Be conducted in an alert frame of mind

When you break it down like that, much of what modern parents think of as play doesn’t actually qualify. The truth is play has been gradually declining for the past five or six decades, but it seems to have come to a head in the last 10 years. According to the Child Mind Institute, American kids now spend an average of just 4-7 minutes a day on unstructured outdoor play, and elementary schools across the country are reducing or entirely eliminating recess. Play is an absolutely critical part of our youth, as it develops life skills in a way which is very hard to replicate elsewhere. How did this crucial component of the human experience get so diminished?

The 1950s were something of a “golden era” of play. The post-World War II baby boom left no shortage of potential playmates for a kid, and child labor laws passed in the late 1930s meant children could no longer be forced to toil inside factories or coal mines. Schools had multiple recesses throughout the day, the concept of homework barely existed, and the school year itself was about 4-5 weeks shorter.

“School was not the big deal it is today. Parents were not involved. You went home, you were home. School happened at school, when you were out of school, you were out of school,” says Gray, a research professor of psychology at Boston College and the author of the book Free to Learn: Why Unleashing the Instinct to Play Will Make Our Children Happier, More Self-Reliant, and Better Students for Life. The culmination of these factors created a generation where kids played for hours each and every day.

“You could go out anytime during daylight and you’d find kids playing with no adults around. Parents shoo’d you outdoors, they didn’t want you in the house—moms especially,” Gray says. Organized youth sports were still in their infancy, and if they did occur, they were a far cry from some of the ultra-expensive, ultra-regimented leagues that exist now. In some little leagues, the biggest or most mature kid on the team often acted as the coach, and there was rarely a parent to be found down the foul lines. But this golden age of play didn’t last forever.

The rise of television made the indoors more attractive, sure, but it was the shift in parental attitudes around school, sports and free time that really changed things. Elementary schools (and schools, in general) began placing a greater emphasis on testing results and homework. According to the University of Michigan, students aged 6-8 went from having 52 minutes of homework a week in 1981 to 128 minutes a week in 1997.

Sensationalistic news reports led parents to believe the world was becoming increasingly dangerous for their children, though statistics show the opposite was in fact true. As time has gone on, the outdoor world’s only become safer for our children. Either way, parents became increasingly uncomfortable with the idea of their child playing around town without adult supervision, and organized sports slowly came to replace play. As the demand for organized activities for younger and younger ages increased, organizations quickly met the demand. Parents stopped allowing their kids to walk or bike to practice, instead shuttling them there themselves.

“Kids going to games themselves by bike or walking became somehow dangerous. So parents felt the need to drive them there. Then if you’re going to drive them there, you might as well watch. Then it became a sort of parental duty to stay and watch. If you don’t stay and watch you don’t care about your child. So you’re supposed to be there, you’re supposed to be cheering your child on. You’re supposed to care if your child’s team wins or loses,” Gray says. “It was gradual, it happened over time. (Organized sports) came to replace actual play in people’s minds—this is how my child gets exercise, this is how my child meets other children, and so on.”

The undercurrent among all this was the idea that play was largely a waste of time. Adults believed structured, adult-guided activities were of greater value to their children, so they began filling their free time as such. As the commitments mounted, time for play decreased. “Instead of the idea that childhood was an idea of freedom and play and children were largely free of adults, we began feeling increasingly responsible for the children’s development,” Gray says. “And accompanying that idea was that children’s own activities are a waste of time.”

Of course, we now know that couldn’t be further from the truth. A 2018 report from the American Academy of Pediatrics confirms that play enhances creativity, imagination, dexterity, boldness, teamwork skills, stress-management skills, confidence, conflict resolution skills, decision-making skills, problem-solving skills and learning behavior. Play is an essential part of the human experience, and a lack of play can have troubling short and long-term ramifications for children.

A major benefit of play is what’s known as “risky play.” This entails engaging in play that creates some sense of fear. This often involves ascending to great heights (climbing a pine tree), moving at great speeds (riding a bike or swinging on a rope swing), play fighting (wrestling), going off on your own (hide and seek) or engaging with dangerous tools/environments. Risky play is a fundamental part of play. Children like to test their limits and innately know how much fear they can tolerate, and when they engage with fear and survive the experience, they become more resilient, confident and better-equipped to handle stress and anxiety. While play in general has decreased over the last five or six decades, risky play has been hit particularly hard due to overprotective parents. Playgrounds have become increasingly sterile in America—most are now devoid of equipment that allows you to confront any fear of heights or high speeds, and offer little challenge in the way of dexterity or agility.

“Natural selection has designed children to play in risky ways so they learn how to deal with risk…I can do this thing that stretches my physical and emotional abilities and I can survive it, I can do it. What you’re practicing is controlling your mind and body in a somewhat fear-inducing situation. But it’s a fear-inducing situation that you can control, you put yourself there. But what you’re learning is you can deal with feeling fear, you can hold yourself together. So when you experience something that produces fear in real life, it’s not a new thing to you,” Gray says. “I feel confident I can handle this instead of panicking. I think that’s part of the reason we’re finding a lot of lack of resiliency today, we’re finding a lot of people falling apart when something difficult happens in their life. Because they haven’t practiced this kind of play where they’re deliberately putting themselves into difficult positions and learning how to deal with that.”

Gray notes that continually decreasing levels of play have coincided with increases in depression and anxiety among young people. In a 2014 TEDx Talk, he outlined how five to eight times as many children now suffer from major depression or a clinically significant anxiety disorder as compared to the 1950s. Questionnaires have also revealed a continuous decline among children and young adults in the feeling that they have “control over their own lives.” They’re increasingly micro-managed and have limited chance to cut loose or follow their intuitions. It’s not an exaggeration to say a lack of play may be at the heart of increased anxiety and decreased resiliency in young people. It’s not their fault—they’re simply ill-equipped to handles life’s ups-and-downs.

How can we put play back in our children’s lives? We’ll get to integrating more “true” play in a second, but you can start by shifting certain organized activities into more playful states. Are there ways to help them self-select and self-direct more of what they’re doing? Or decrease the focus on outside rewards? Or foster a grander sense of imagination? The more an adult is telling them exactly what and how to do something, the less play is taking place. The U.S. Soccer pamphlet Best Practices for Coaching Soccer in the United States sums it up nicely: “Coaches can often be more helpful to a young player’s development by organizing less, saying less and allowing the players to do more. Set up a game and let the kids play. Keep most of your comments for before and after practice and during water breaks.”

In terms of pure or “true” play, we’re not getting back to the days of the 1950s anytime soon. However, some communities are fighting to bring play back with encouraging results.

Schools around the country are integrating “play clubs” and finding great success. These clubs typically take place on school grounds for 1-2 hours directly preceding or directly following the school day. Different equipment is set out for kids to play and experiment with at their leisure, and adult supervisors (of which there are not an abundance) are trained only to intervene when something truly dangerous is occurring. Gray recently observed an elementary school play club that takes place prior to the school day once a week (though they’re trying to make it more frequent) and was delighted with the result.

“Free play indoors in the school and outdoors, it’s age mixed, all grades K-5…It’s working wonderfully. It’s working partially because the age mixing. Older children are helping to solve the quarrels among younger children,” Gray says. “Children are truly running in hallways, wrestling, playing chasing games, some old-fashioned games, very vigorous play. Here’s a situation where there are adults present, but the adults are initiating actives (and) they’re not intervening. I was there for an hour, there were 150 kids, and I did not see any single case of adult intervening. It went so remarkably well.”

Gray also offers up the idea of recreation departments including more sandlot-style activities among the more organized sports. It would be formalized in the sense it would take place at a given location at a given time, but it would really be just a way to get a bunch of kids together. A volunteer could help get games going during the first few sessions, but slowly step away and intervene less over time. New equipment could be added over time to help inspire different games or different styles of play.

“Maybe one parent is there at a time to help each other put their minds at ease. It begins with something more formal, but over time, that structure falls away,” Gray says. “I think that could catch on. I think there’s enough kids and enough parents who would want to do this as an alternative…Ideally, over time, the kids who are coming together (for this) every Saturday afternoon start realizing they can do it every other day, too.”

By Brandon Hall and published in Stack on March 25, 2019 and can be found here.

You Are Here Prof: Today’s Students and Professors ‘Know Hardly Anything about Anything at All’

Six months ago we shared a frightening observation from Patrick Deneen, a political science professor at Notre Dame who has also taught at Princeton and Georgetown. He described his students as “know-nothings… devoid of any substantial knowledge.”

More recently, a respected author and English professor at Providence College in Rhode Island has echoed Deneen’s concerns.

In an essay titled “Exercises in Unreality: The Decline of Teaching Western Civilization,” Anthony Esolen describes a university climate today in which many students and professors no longer possess the knowledge and skills that their peers of previous generations took for granted:

“But what if you know hardly anything about anything at all? That is an exaggeration, but it does capture much of what I must confront as a professor of English right now, even at our school, which accepts only a small fraction of students who apply for admission. Nor, I’m afraid, does it apply only to freshmen. It applies also to professors.”

He explains:

“I now regularly meet students who have never heard the names of most English authors who lived before 1900. That includes Milton, Chaucer, Pope, Wordsworth, Byron, Keats, Tennyson, and Yeats. Poetry has been largely abandoned. Their knowledge of English grammar is spotty at best and often nonexistent. That is because grammar, as its own subject worthy of systematic study, has been abandoned. Those of my students who know some grammar took Latin in high school or were taught at home. The writing of most students is irreparable in the way that aphasia is. You cannot point to a sentence and say, simply, ‘Your verb here does not agree with your subject.’ That is not only because they do not understand the terms of the comment. It is also because many of their sentences will have no clear subject or verb to begin with. The students make grammatical errors for which there are no names. Their experience of the written language has been formed by junk fiction in school, text messages, blog posts, blather on the airwaves, and the bureaucratic sludge that they are taught for ‘formal’ writing, and that George Orwell identified and skewered seventy years ago. The best of them are bad writers of English; the others write no language known to man.”

Esolen’s above lament is supported not only by similar laments from his fellow professors, but also by statistics that show only a minority of American students are proficient in reading and writing, and by the fact that billions of dollars each year are spent on remedial courses in college.

Do you think that things can be turned around in the near future? Or are we destined to slip further into an educational dark age?

Dan is a former Senior Fellow at Intellectual Takeout. He received his B.A. in Philosophy and Catholic Studies from the University of St. Thomas (MN), and his M.A. and Ph.D. in Systematic Theology from Duquesne University in Pittsburgh, Pennsylvania. You can find his academic work at Academia.edu.

By Daniel Lattier, and originally published on August 8, 2016 in Intellectual Takeout and can be found here.

Politics and Rationality: On the Uses and Limits of Science

How rational is your politics, and how rational could or should politics be, in general? What is, and what ought to be, the role of reason and of science in policy-making or in campaigning? To answer such questions in a reasonable or scientific way, it would first be necessary to define such terms as “rationality,” “reason,” and “science.” That’s a nice Socratic-style challenge, anyway, and I’m not confident that people mean anything very clear or specific by them on most occasions. And, whatever they mean, the things themselves—conceived as faculties in people’s heads or as a series of procedures or guidelines for how to gain knowledge—have little to do with why anyone has the politics they do. People who think their own politics are rational and those of their opponents irrational (that is, more or less everybody) are engaged in a self-congratulatory self-delusion.

A traditional account of the faculty of rationality might be that it encompasses the canons of deductive and inductive reasoning and perhaps the scientific method (which it then is incumbent on the rationalizers to characterize in a general way). That is, rationality is an array of techniques, variously related, for getting true conclusions from true premises, or probable conclusions from probable premises, or data from experiments, or well-tested hypotheses from mere guesses: the rational procedures are the truth-preserving or truth-conducive procedures.

Then again, the alleged science of economics deploys a seemingly completely distinct conception of rationality, oriented to actions and agents rather than to generating true theories. Here, a rational person is one who pursues their own interests (conceived by economists, of course, as economic interests) by means that are most likely, or very likely, or fairly likely, or more likely than not, to be helpful in achieving those interests. In other words, a rational person is defined (admittedly this is comparatively clear) as one who knows how to get his, or who has effective techniques for securing resources, or, in short, who makes a whole bunch of money.

These two, or several, or many, senses of “rationality” may go back to Aristotle, who defined humans as “rational animals,” which raises doubts about whether he had ever met any of us. Aristotle defined “practical rationality” in terms of a certain style of deliberation, known as the “practical syllogism”: “I want thing X; action A will help me get X; so I’ll do A.” Of course, that leaves it entirely open what X is: it could itself be an irrational or evil goal.

Aristotle thought that we all had the same goal—happiness—and that the same means (study and friendship, for example) could help us each achieve it. But he did not give any rational reasons to prefer happiness to various other possible ultimate goals (union with God, for example, or a life of self-sacrifice), nor could he. Our goal, he thought, was built into our nature. Maybe so, but that does not in itself make it any more rational than any other goal. Also, it doesn’t make it clear what happiness (or, as contemporary versions have it, well-being) is, or why we should prefer it to other candidates for ultimacy; it just insists that happiness—itself an awfully vague concept, or a variable that just means “everything we want all at once”—is in fact our goal. But Aristotle at least connects what we might call “cognitive” and “deliberative” rationality, or perhaps logic, experimental science, and economic modeling, into something like the same conceptual structure, which is as much as anyone has done since, really.

As to the scientific method, which is supposed to be something clear enough for a teacher to scribble briefly on a blackboard: a general characterization is going to have to encompass the techniques, for example, of astronomers (instrument-aided observation), psychology (questionnaires), experimental chemistry (hypothesis and reproducible test), medicine (double-blind placebo studies), anthropology (immersion and empathy), and of course economics (statistics), among many other procedures. Good luck boiling it all down, or figuring out exactly which technique to use on a political or moral question, and how.

So, for example, let’s stipulate that science (whatever it may be, exactly) has delivered to us the truth that the planet is getting hotter because of human carbon emissions. It might also give reasons to think that certain procedures will be effective to ameliorate the problem. That’s when the practical syllogism or the economic model of rationality kicks in: if I want to ameliorate climate change I should act to reduce my emissions and to see whether I can convince you to do likewise. But I have many goals that I’m trying to achieve simultaneously, including goals that economists assert to be rational, such as maximizing my income, or paying as little as possible for the things I need. The sheer fact that I’m deliberating about how to reach some goal rationally isn’t going to help me decide which of these goals to pursue when they conflict. It’s not going to help me fix my ultimate goals, or order my goals in a list of priorities. In order to do that, I’m going to have to figure out what I really want, what I think is most important. On that matter, the practical syllogism, like particle physics, is silent.

In general, fixing our ultimate values—in politics or anywhere else—is not an activity that lends itself to rational deliberation. It rests, rather, on visceral commitment. If I think that justice is more important than tradition, or world peace than national borders, for example, I am going to have to screw up my emotions one way or another and make the choice. And to persuade you to do likewise, I am going to have to express passion, not present a series of practical syllogisms or scientific papers. No one’s politics is based on deliberative rationality. And no one’s politics is based on science, of course.

This is one thing that David Hume meant when he made his famous declaration that “Reason is, and ought only to be, the slave of the passions.” Another thing he meant was that while passion, emotion, or desire can motivate people to action, sheer reason cannot. Though people sometimes say that science demands that we act now, it demands no such thing. It might tell us that if we don’t act now, various things will happen. It can’t show us why we don’t want them to happen, or why we should try not to let them happen, if we don’t really care as much about being screwed in the long run as we do about what’s for dinner tonight. Reason might tell us that if we want dinner tonight we should go to the grocery store and crank up the grill; it can’t tell us how much to care, or what to care about. Perhaps reason is a group or a family of strategies for generating beliefs, but, if so, it looks like they are only tangentially related to each other. At any rate, when you’ve told me that I should select my political beliefs rationally, I still don’t know exactly what you mean, or how I possibly could.

Political scientists—who are an interesting kind of scientist—tell us that, statistically speaking, our political positions tend to follow our demographics. The sort of “predictive analytics” that drove Cambridge Analytica’s interventions in the 2016 campaign on behalf of candidates like Trump indicate the same thing. It seems that if I know your race, your region, your age, your gender, your education level, or what movies you watched last month, I can predict your political positions with a fair amount of accuracy. This would be a bizarre circumstance if people were coming to their political positions through rational procedures. The oft-remarked “tribalism” of American politics, which applies just as well to college professors as to truck drivers, gives the lie to the alleged fact that some of these people (the people you agree with, no doubt) are basing their politics on reason while other people (the people you oppose) are not. People, by and large, believe to belong. But at what rate we ought to value belonging: on that, science offers no help.

Perhaps science, whatever it may be, can provide some information that would be useful to us, given that we have certain purposes. It cannot give us purpose, however. If “rationality” meant something, our politics would turn out to be no more rational than we are, overall. What did you expect?

By Crispin Sartwell and published on December 29, 2010 in Quillette and can be found here.

Why blackface still dogs the Mummers 50 years after it was banned

Please note: This article is published as an archive copy from Philadelphia City Paper. My City Paper is not affiliated with Philadelphia City Paper. Philadelphia City Paper was an alternative weekly newspaper in Philadelphia, Pennsylvania. The last edition was published on October 8, 2015.

Court injunctions, human chains, riots, “blood in the streets” — it’s the 50th anniversary of the year blackface was banned in the Mummers Parade.

On Broad Street, two giant, white-gloved hands roll back to reveal the Ferko String Band, one of the oldest and most respected groups in all of Mummerdom; they’ve marched in every New Year’s Parade since 1923. Their routine involves an Irving Berlin tune; it’s not one of his most well-known ones, but sing along if you know the words:

I recall when I was small and the minstrels came to town

I was glad because my dad

Always used to take me down

Often my memory strays

Back to those wonderful days

Those good, old minstrel days. 

From the title, “Ferko’s Bringing Back the Minstrel Days,” on down, the group’s entry in last year’s New Year’s Parade was hardly subtle about what it was paying tribute to. Even if a parade goer wasn’t familiar with “minstrel” in its definition as “an entertainer, generally white, who performed songs and jokes in blackface and probably had his best days between 1830 and 1900,” there were plenty of hints. There’s an homage to Al Jolson. A large black piece of scenery is painted with the word MINSTREL and a floating, white-lipped smile; most of the musicians, nearly all of whom are Caucasian, have white-outlined grins — painted over tan, orange or red faces.

For the finale, out come four large, big-lipped, wide-grinning, top-hatted prop heads. The faces technically aren’t black — blackface has been banned from the parade for 50 years. Their skin is light tan: not blackface, so they’re not breaking the rule. It does, however, still resemble something torn from a creatively crayoned Amos & Andy coloring book.

The Mummers’ minstrel days ended in 1964. It was unusually warm and sunny on the day of the 64th New Year’s Parade, and at the time, decent weather usually meant a turnout of between a million and a million and a half spectators. But only 300,000 people showed up this time — for every one person who came, three or four decided Broad Street was not a good place to be.

That’s not surprising, given the circulating warnings about potential “blood in the streets” and rumors that black people had been recruited from Harlem and Chicago to wreak havoc. “If there is violence and we get beat, then we’ll take our beatings,” said Louis Smith, president of the Philadelphia chapter of the Congress of Racial Equality, of their plan to make a human chain to block the parade if blackface was allowed. Leave had been cancelled for the entire Philadelphia Police force, and thousands of officers were on duty. Newspapers were full of metaphors of impending explosion: “sitting on a volcano,” “powder keg,” “pouring oil on a fire.” Philadelphia had been on edge for a long time, and on this sunny January day, it seemed likely that the blackface ban might be what would push it over.

“If I can’t wear a black face, it’ll be brown or purple,” one Mummer protesting the ban had declared. And Mummer historian Charles Welch, taking notes from the judges’ seats, writes about a makeup-less Al Jolson, comics in “dark blue makeup, kinky hair,” and “a picture of a minstrel in blackface on a large poster with ‘Gone Yes — Forgotten Never.’”

In 1964 and 2013, these Mummers were adhering to the letter of the law rather than the spirit. The early groups were protesting, actively trying to infuriate people. In 2013, though, Ferko String Band members seemed genuinely surprised and hurt at the negative reaction to their show. (Calls to their captain went unreturned.) And so go the microbattles of race in the modern era, which so often boil down to an infinite, crescendoing loop of “But I followed the rules!” and “But you missed the point!”

The Mummers’ history with minstrelry is, unsurprisingly, something that nearly all contemporary Mummers wish would just stay in the past. But one of their own always seems to dredge it up again: “Ferko’s Bringing Back the Minstrel Days,” or the Goodtimers’ “Al Jolson Sings Again” in 2003, or the South Philadelphia String Band’s request to be allowed to use blackface in a Cotton Club-themed show in 1985 (denied), or the blacked-up faces that stubbornly show up on Two Street year after year.

Without historical context to provide the leaky life rafts of nostalgia, tribute and homage, the recurrence of blackface seems baffling. And since most people don’t know the history, they’ll assume the most obvious explanation is the correct one: That Mummers are fucking racist.

But nothing’s ever that easy, is it?

In nearly every collection of newspaper photos of the New Year’s Parade, there are a few shots that always appear: A close-up on the face of a wide-eyed kid. Lots of photogenic Fancies — at the very least, someone in one of those enormous, feathered backpieces and a wide shot capturing the full length of a 100-foot-long cape. A beauty shot of a pretty wench who could almost pass for female. A close-up of someone from a string band playing a saxophone.

And then there’s the wide group shot capturing a crowd of strutting Comics, the sector that has historically devoted itself to satiric pantomime, usually of current events. The clown-like figures — some in dresses, most looking intoxicated — brandish parasols and smile up at the camera. After 1964, their faces tend to be painted to match their outfits. Before 1964, there’s usually a significant percentage in blackface. (The video below, from 1930, has some good examples early on.)

The history of the Mummers, particularly the comic brigades, is entwined with the blackface minstrelry popular in the mid- to late 1800s. But the roots go back further, before South Philadelphia was even officially part of Philadelphia. It was a poor satellite town of immigrant laborers and free blacks, and its poorest neighborhood was a swampy, near-rural shantytown known for its garbage-fed pig herds. This was the Neck — the birthplace of Mummery.

The early history of the Mummers is inexact, says Christian DuComb — who teaches theater at Colgate University, wrote his doctoral thesis on racial impersonation in the Mummers and until recently was a member of the Vaudevillains NYB club — because nobody wrote it down. “Most of the Mummers’ own history is oral; it’s a working-class tradition, and the working class hasn’t always had the resources to write its own history.”

While the early days are fuzzy, one thing’s clear: In the 1830s, rowdy bands of proto-Mummers shooting guns off like Yosemite Sam started showing up at holiday time in arrest records and in the diaries of irritated rich people in Philadelphia proper, the area now called Center City. The drunk, costumed men were seen as a dangerous nuisance — the first formal parade in 1901 was essentially appeasement, as the city, unable to keep things under control in the holiday season, bribed the Mummers with prize money to hold their celebration in an organized on Broad Street. There was a definite sense of “At least we know where they are now.”

“In contrast to older, rural themes of semi-human disguise, Philadelphians commonly impersonated kinds of people,” writes Susan G. Davis in “Making Night Hideous,” a 1982 paper on historical South Philly holiday traditions published in American Quarterly. The two most popular types of disguises were the ones that required the least effort: “Wearing women’s clothing was an easy transformation and popular. … Dressing as a woman could be as simple as filching a sister’s dress.” And: “Blackface was a popular theme in the street Christmas from the 1830s. … Like transvestism, blacking-up was quick and cheap.”

“It’s an easy disguise to get access to — all you need to do is burn something and smear it on your face to at least partially mask your identity, especially if you’re performing or carousing at night,” says DuComb. “Blacking up” had been a practice in many of the home countries of the Neck’s residents, “but when the European practice migrated to the Americas,” and especially to the Neck, a neighborhood with a number of free blacks, “it quickly took on an obvious racial significance it may have previously lacked.”

And so, at least 70 years before the first formal New Year’s Parade, there it is, the origin of wenches and blackface: The first Mummers were too poor to buy costumes.

Imagine the reaction, if tomorrow, a couple weeks before the parade, a large group of women came forward and declared that the wench brigades were insulting caricatures and therefore offensive to women. (As wenches are now fairly inoffensive, picture the suffragettes-putting-babies-on-spikes ones of earlier days.) Their group, these women say, will be doing everything in their power to ensure no wenches march in the parade: legal action, boycotts, picketing, even blocking the parade with their bodies.

Unlikely to work, right? The wenches are a tradition going back hundreds of years, impossible to uproot in a few weeks. But, though it was just as long-lived a tradition in the Mummers, that’s essentially what happened with the blackface controversy in 1964.

1963 had been a frustrating, violent year for the civil rights movement, with most of the victories still on the horizon. Martin Luther King Jr. was thrown into jail. Bull Connor used fire hoses and police dogs on a nonviolent protest in Birmingham, Ala. Medgar Evers was murdered in Mississippi. Despite JFK’s request that it be put off for fear of violence, the March on Washington was held in August. In September, Birmingham rioted after the bombing of a Baptist church killed four little girls. And just before Thanksgiving, JFK was shot in Dallas.

Philadelphia, though not in the South, was tense. Between 1940 and 1960, the black population had more than doubled as hundreds of thousands of blacks fled the Jim Crow South in search of good jobs in Philadelphia’s industrial sector. Instead, the first arrivals were greeted by a highly segregated union system in which most skilled, technical and professional jobs were closed to blacks, and housing policies that crowded them into cramped ghettos, mostly in North Philly.

Later arrivals had it even worse — the defense-industry jobs dwindled after the war, and with the beginnings of white flight, blacks found themselves marooned in an increasingly empty and blighted city with few jobs of any kind available. Early civil-rights leaders like Sadie and Raymond Pace Alexander got promising things through City Council, but lacked the muscle to enforce them. In 1963, newly elected local NAACP president Cecil B. Moore (constantly referred to as “fiery” by reporters of the ’60s) had started pushing hard for more confrontation, a voice for the growing frustration with the status quo.

Parade Magistrate Elias Myers must have felt it in the air. In mid-December, without much fanfare, he banned blackface from the ’64 parade — perhaps because this would be the first time it would be broadcast nationally. A couple of days later, he found his Two Street home being picketed by a bunch of young Mummers. A few days after that, Myers reversed his decision and re-allowed blackface. And that was what set things off — Cecil B. Moore, the NAACP and other civil-rights groups converged on the Mummers, with only about a week before the parade.

Many Mummers resented the last-minuteness of it all, and that it was being led by outsiders who didn’t understand South Philly traditions — Moore and the bulk of his supporters were from North Philadelphia.

Interviews in Patricia Masters’ book The Philadelphia Mummers: Building Community Through Play suggest that a lot depended on north and south as well as black and white. One white comic club member who jokes that he’s “probably the last living person involved [directly] with the blackface controversy,” said he was confused about the suddenness of the anger about blackface: “If this was such a pressing issue, number one question I had at the time … was why wasn’t this brought up in February, March, April for discussion?”

Another man Masters spoke with, a black musician from South Philly whose brass band had been employed by Mummers for years, also saw Moore as an outsider: “Why he [Cecil B. Moore] brought them [the group of blacks] from North Philadelphia I have no idea, because they were not even associated with the parade. They were so far away. The blacks in the community in South Philadelphia lined the streets to see the parade because from Washington Avenue up to Lombard Street was a black area. … I think [Moore started the controversy] to start some problems, I really do.”

But Moore hardly invented black opposition to blackface. In March 1954, North Philadelphia Councilman Raymond Pace Alexander had introduced a resolution for official disapproval of  “the ridiculing, satirizing, or holding in contempt or derision any race of people on the part of organizations and club members of the Mummers Parade on New Year’s Day.”

After nine months, the Tribune headline “Alexander Wins Fight for Decency” is less accurate than a later description, “a victory of a sort.” That is, City Council politely asked judges not to award the taxpayer-funded prize money to “groups that used ridicule of a racial or religious group as their theme.” It’s hard to say exactly what would qualify as over-the-top “ridicule” in any given decade — one comic club wore white, pointy robes and called themselves the “Koo Koo Kan” for a few years in the ’20s — but the judges promptly awarded first-place prize money to “African Voodoo Warriors” in 1955. (You can observe for yourself what was allowed in the 1955 parade in this video clip.)

Cecil B. Moore was less interested in keeping the peace than in making things actually happen. Recalling covering desegregation in Philadelphia in 1963, journalist Lawrence O’Rourke wrote that “reporters who wanted a quote from black leaders frequently sought out the same people, starting with Judge Raymond Pace Alexander and his wife, Sadie, distinguished members of the black community. For more firebrand quotes, reporters called Cecil B. Moore.”

So when magistrate Myers brought back blackface, Moore and the NAACP immediately went after the Mummers’ money. Using the courts, protests, boycotts and political pressure, they targeted the Mummers’ parade permit, the taxpayer-funded prize money and lucrative broadcast deals. Now, both sides were angry.

Tensions peaked when the NAACP’s court motions were thrown out on New Year’s Eve, less than 24 hours before the parade was supposed to begin, with the impossible reassurance that “the city, which sponsors the parade, had promised that no part of the performance would offend anybody, racially or otherwise,” wrote the Associated Press. The patronizing tone infuriated activists, and they began to sound a bit threatening, as in this quote in the Tribune: “I’m worried about what’s going to happen when the parade passes Broad and South Streets,” [Moore] said. “I’m trying to prevent tension.” Every police officer who’d taken New Year’s Day off was called up for duty. The threat of imminent violence was now big news even outside the region; a front-page Washington Post article began: “It was New Year’s Eve in Philadelphia when the Rev. Henry H. Nichols told a reporter: ‘I pray the good Lord will stop the parade with a snowstorm.’”

Defusing the situation took the intercession of less-confrontational, old-guard black activists, church leaders and, some claimed, the good Lord. (Or a Nor’easter.)

“We prayed for snow on New Year’s Day and got it,” said the Rev. Nichols, after a sudden bout of bad weather caused the parade to be postponed only two hours before it was to start. “Now we are praying that understanding will come.” And in the three days the snow bought, Nichols and other older-school activists proposed a compromise that would bar both blackface and protesters from the parade. It was quickly approved by the same court that had just tossed out the NAACP’s requests.

The parade itself was an anticlimax. Few Mummers showed up in blackface, and those who did were removed from the parade. Activists stayed home. The most noticeable sign of tension, aside from the above-average number of police officers and below-average number of spectators — if you want an idea of what the day looked like, there’s some really interesting snippets of silent footage of police situation here and the Mummer protestors here — was probably Hammond Comic Club’s chants of “1, 2, 3, 4, we hate Cecil Moore!” being briefly audible on the national TV broadcast.

Hammond had headed the resistance to the blackface ban. At the parade, members wore no makeup at all, though apparently some applied blackface on the fly as they marched; they refused, as did a few other groups, to perform as they walked through a stretch of black neighborhoods; they even had a “sit-in protest.” According to historian Charles Welch, they “sat down in the middle of the street, some shouting, ‘Negroes sat down in City Hall, we’ll sit down here.’ … The police quickly moved in and forced the Mummers to rise. The entire incident lasted about 20 minutes, after which the paraders again started up the street.”

Welch also has notes on Hammond from the judging area: “HAMMOND: Blackface used by some Mummers — no reaction from the crowd. Young Negro boy dressed as an American Indian, elaborate costume, red makeup.”

The same kid turns up a week later in the Inquirer brief “50 in Blackface Join Parade Honoring Myers,” on a 200-Mummer parade in support of the magistrate’s ultimatum that he’d resign if the blackface ban was made permanent.

Though the Mummers have always been predominantly white, there were more black Mummers before the Depression hit, when minorities made up less than a tenth of Philadelphia’s population. Today, when “minority” describes nearly two-thirds of Philadelphia’s population, there’s barely any. The brass bands, which provide music for the comics, tend to mostly have black members, but they’re being paid, don’t dress up and don’t call themselves Mummers.

Willis Fluelling, the kid who marched with Hammond, was proud to call himself a Mummer. Fluelling, now 64, has suffered several strokes over the past decade, and has difficulty speaking. However, he’s happy to express how much he enjoyed his first year in 1964 — a photo of him and a younger kid playing Custer to his Crazy Horse appeared in the Daily News. “The costumes were so extraordinary — I wanted to be in it, real bad. I was a kid, I just jumped right in. … Some white boys got me in.”

Was it strange being the only black Mummer in Hammond, and nearly the whole parade? “No, it wasn’t. No.”

Was being in Hammond during the blackface controversy strange for him? “No, it wasn’t.”

What was it like marching in the ’64 parade? “Nice.”

What did he wear? “An Indian costume — Custer’s Last Stand.” What was he doing? “Killing Custer.”

His wife, Bernette, interjects: “He was struttin’! Or whatever they call it.” She giggles at the feel of the unfamiliar word.

When the two met in 1971, Fluelling was still an active Mummer, which surprised Bernette. “He told me that he was marching in the parade, and, of course, I laughed. I told him at that time that I didn’t see any black people in the parade!” She laughs again. “And he said, ‘Well, come down Broad Street and see me parade!’ And I went down Broad Street and saw him parade; I was laughing! I was shocked because everybody knew him in the parade, since he’d been doing it since he was little.”

The Mummers were much less of a presence in her own childhood, growing up in a mostly black neighborhood “up on 22nd Street.” In fact, she says, she never really thought about them at all. “We had our own parades up our way — there wasn’t no white people in the parades we had,” she laughs, so the Mummers being mostly white didn’t seem unusual. It was just who lived in that South Philly neighborhood. “At that time, blacks was throwing more parades with precision — like, twirling the baton and doing the stepping.”

Fluelling says the blackface controversy didn’t bother him at the time, and that his feelings about the parade haven’t changed. “I figured that blackface was in the parade all those years, and nobody said nothing about it.”

Bernette jumps in: “He was young! We were all young at the time.”

And as kids, she says, they didn’t really follow the news. “All we were thinking was how pretty the costumes were. … We weren’t thinking about any of the overtones, because we didn’t know anything about that.”

After the two started dating, she says, they got more into studying the Bible, and he started spending his free time on that instead of the Mummers. More than that, Bernette would rather not say.  “We don’t get into political affairs — I have my opinion, but me and my husband would rather keep our opinion to ourselves; if you say something, it can get misconstrued.”

In 1963, a Mummer told the Associated Press, “Minstrelry is a part of the tradition. … No offense ever was meant, and so far as I know, none was ever taken.” Five decades later, a surprising number of people are still using this argument anytime anybody is offended by anything. These days, it often comes with an undercurrent of “and fuck ’em if they can’t take a joke,” suggesting that 50 years of being called racist grates on the nerves.

The Mummers still have a race problem. It’s not the occasional tribute to Al Jolson or Joey Vento-sponsored “Speak English/Our jerbs!” skit about illegal immigration. It’s the impression that they give off: that the Mummers are by white people and for white people, and don’t particularly care if anyone else likes them. “Anyone else” used to be an insignificant number. But since the first official parade in 1901, Philadelphia has gone from 95 percent white to 37 percent white. Not thinking about what things like “Ferko’s Bringing Back the Minstrel Days” will look like to 5 percent of the population is thoughtless; not thinking about what they look like to more than half of your city is slow suicide.

“It’s not just, ‘It made me uncomfortable,’ it’s ‘The Mummers are racist!’ That’s what they say,” says Stu Bykofsky. Last year, in response to a bunch of commentary on Ferko and other iffy performances (including “Indi-insourcing,” shown below) that year, the Daily News columnist and skilled troll responded by slamming people who were “finding other forms of ‘racism’ in the parade, drawing insipid conclusions from their aggressive ignorance.” His advice then: “If you’re offended, here’s a buck. Try to buy a sense of humor. Or an ounce of sense.”

The Philadelphia Police used to take an annual stab at estimating the number of parade spectators; the highest was 2 million in 1949, and estimates of over a million were common in the 1950s and ’60s. They stopped doing these after an estimate of 22,000 at the 1994 parade caused a lot of angry blowback. It was later revised to 60,000 to 70,000 — three drops in a bucket rather than one. Today, the turnout gets only an adjective, nearly always something like “thin,” “disappointing” or “anemic.”Bykofsky has been a staunch advocate and defender of the Mummers for decades. But even as he skewers humor-lacking donkeys, he’s lamented the loss of the “Good Old Days,” and the decline in spectators, clubs, and attention the Mummers are dealing with these days.

Bykofsky says he doesn’t think the “accusations of racism” are a factor, but that something’s definitely been lost. He sounds genuinely sad. “I think that, for whatever reason, the Mummers’ time is past. This wonderful, beautiful, truly spontaneous folk celebration has run out of steam. For whatever reason.”

Is the massive decline in spectators because of TV? Less free time on weekends? The ungodly inefficiency of the parade of late? Yes, probably.

But here’s another correlation: Philadelphia’s white population has steadily and dramatically declined since the end of WWII; it’s a third of what it was in 1950.

racial demographics vs. parade attendanceI

It’s hard talking about this without using jargon like “privilege,” but I’ve avoided it because for many people, “privilege” evokes images of rich kids driving expensive cars. In this context, though, what it means is “a group that only has to think about this stuff in the abstract, because it doesn’t affect them.” Bykofsky rolls his eyes, but though he scoffs at “white privilege,” he says that “black un-privilege” is obvious.

So let’s say it like this: The Mummers began as the smallest of the small, in the crappiest, poorest, most violent and gang-ridden area of South Philadelphia. But they crossed the line from weak to strong a long time ago, probably around the time the Irish or Italian or Polish crossed the line from despised ethnic minority to white. This isn’t saying that they were suddenly on top of the world or that their lives had no tough problems, but they were able to get the factory jobs that were closed to blacks in the ’50s and ’60s. They are no longer the “un-privileged,” but they don’t seem to recognize this.

When the weak poke fun at the strong, it’s satire; when the strong poke fun at the weak, it’s just kind of being a jerk. And people remember that sort of thing.

So anyone who truly wants the Mummers to flourish will stop telling anyone who speaks up about things that offend them to sit down, shut up and to learn to take a joke. Because those people probably will shut up, but that silence isn’t the sound of a newly purchased sense of humor. It’s the silence of the deadliest predators of the new era: the raised eyebrow and the 180-degree turn, currently sucking the life out of the Republican Party, the Atlas Shrugged film adaptations and Charlie Sheen. If the Mummers don’t start thinking more seriously about what they’re saying to most of the city, there’s likely to be silence on Broad Street within a decade or two.

Court injunctions, human chains, riots, blood in the streets: With all the high drama swirling around the 1964 New Year’s Parade, how strange that in just 50 years, the greatest threat to the Mummers is not a bang, but a shrug.

By Emily Guendelsberger and originally published in My City Paper on December 19, 2013 and can be found here.

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