The avoidance of excess — and the tendency towards counterbalance — may be observed in human behavior and natural phenomena.

             I will provide examples of both:

1.         Behavior Modification. The obituary last week of Dr. Sidney W. Bijou, the renowned psychologist, recalls his seminal contribution to child psychology; the fact that children with mental health disorders respond more to rewards than to punishment. 

            Correspondingly, we learned this week that the U.S. has a greater percentage of prisoners serving sentences of life without parole than ever before.  Penologists attribute this to rising public dissatisfaction with the idea that prisoners can be “rehabilitated”.

2.         Flight Correction.  When an aircraft changes speed, the nose goes up or down.  The correction to continue flying level is called “trim”.

3.         Image Adjustment. In Adobe Photoshop Elements® or Lightroom 2® there is a necessary balance between the dark and light areas of an image. Each “extreme” is moderated independently using slider buttons called “Fill” and “Recover”. The mid-range of exposure is heightened or decreased by adjusting both extremes at once — in effect clumping or spreading the mid-tones — using a single slider called “contrast”.

4.         Health Care Reform. This monumental project could have been be rushed through by July 31st 2009 or allowed to take longer.  We quickly learned it will take longer. Each timeline had benefits and detriments.

5.         Moderation in Canada. (based upon three days visiting Gananoque, Kingston, and Toronto — cities in the Province of Ontario not far from Buffalo and Detroit):

► Few street-level windows have metal bars. 

► Foreigners arriving by boat register themselves using a toll-free number displayed on a public phone booth.

► The Toronto Metro (“TTC”) turnstiles are waist high. You could jump over them, but I saw no fare-beaters. Day passes are not actually read by bus drivers, more glanced at.

►A small duty free shop is available after clearing U.S. Customs at Toronto’s Pierson International Airport. Purchase limits seem to be based on the honor system, but I am not sure if this is an expression of trust or someone’s mistake.

► Canada has no death penalty.

► Store-fronts, print media, and couture seem more creative, and “out of the box”. A substantial number of pedestrians display tattoos, body piercing, and visually attractive attire. Is this more prevalent than in America or the result of too small a sample size?

► Many bicyclists are without helmets, but drivers seem considerate of cyclists, pedestrians, and the tram passengers who must cross a lane of traffic between the curb and the tram.

6.         The Newly-Enacted Mexican Uncontested Divorce Law. It shortens the time to obtain a divorce, but appears to aggravate the pre-existing litigation advantage of men.

7.         Iqbal and Substantial Probability of Success on the Merits. A new Supreme Court decision permits Federal judges to immediately dismiss lawsuits if they appear implausible.  On the one hand, this reduces the Federal caseload by weeding out complaints that served to trigger nuisance settlements. On the other hand, it places an added (and perhaps insurmountable) burden on the less-funded plaintiff whose supportive facts are not overwhelming before discovery has taken place. More detailed discussion of the ruling is available in the these blogs: Jones Day, Constitutional Law Prof Blog, and PrawfsBlog.  

 8.         Crime and Punishment.     America has five times more prisoners than in 1980. California’s “three-strike” law, the disproportionate penalty for “crack” cocaine, and stiff sentences for minor drug crimes are all contributing factors. Many more Blacks than Whites are convicted of “crack” offenses; and death row has far more Blacks than Whites. Proposals for redressing the balance include: reducing the likelihood juvenile offenses will lead to an adult life of crime; shortening prison sentences in general; increasing parole; and decriminalizing the use of drugs. Members of the U.S. Congress are introducing legislation to equalize the penalties for cocaine and “crack”.