Stranger than Fiction

Jeremy Blachman, author of Anonymous Lawyer, writes in the Times,

On Anonymous Lawyer, I paint a frightening picture of life at a law firm. People trip each other in the halls for fun, lawyers work from the hospital while giving birth and no one ever gets a weekend off. Yet a number of law students, not realizing that my blog is fiction, have assumed that the law firm I write about actually exists and have sent me résumés, wanting to work there. Maybe the truth wouldn't be as harmful as some of these employers think. Maybe it's O.K. to let people write about their jobs.

Drug "Education" Songs

The latest Office of National Drug Control Policy ads are using children's tunes (the Alphabet Song, Baa Baa Black Sheep... they must like that tune) to pitch their "talk to kids about drugs" message. It's hard to imagine that a marketing firm could come up with a more effective set of jingles to sell drugs to toddlers.

Subsidizing Poor Building Decisions

As we again see the catastrophic consequence of developing flood plains into cities and villages, the question should arise - should the government be subsidizing this type of development? Granted, to some degree this is a special case - New Orleans wasn't constructed in the modern era, and greater public expense can be justified in relation to historic towns and villages. But why are we spending billions of dollars in an effort to transform flood plains into buildable lots? Why are we spending billions providing subsidized insurance - or with the government stepping in to provide insurance for buildings which are otherwise completely uninsurable - rather than letting market forces prevail?

Would it be wrong to declare, in relation to properties destroyed in this catastrophe, that property owners will be able to collect on their insurance policies, but if they choose to rebuild in their present location they won't be eligible for future insurance subsidies? To follow the model started under the Clinton Administration, by moving people out of areas particularly vulnerable to flooding? Or even to offer a relocation subsidy (particularly to people too poor to otherwise move out of inexpensive properties situated on flood plains) to encourage people to move to less vulnerable areas?

Would it be politically impossible, given that better public policy would impede the ability of the wealthy to get subsidized insurance for their coastal vacation properties?

Scalia on Morality

According to Law.com, at a recent presentation "Justice Antonin Scalia blasted what he called "judge moralists" and the infusion of politics into judicial appointments":

Speaking before a packed auditorium at Chapman University in Orange, Calif., Scalia said he was saddened to see the Supreme Court deciding moral issues not addressed in the Constitution, such as access to birth control, desegregation and the use of public floggings and the pillory to punish criminals. He said such questions should be settled by Congress or state legislatures beholden to the people.

Okay, so he actually said "abortion, gay rights and the death penalty", but from a constitutional perspective what's the difference? (A lesson in the importance of framing your issues.)

I guess Scalia would interpret this language, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people", to mean that the people may have additional rights beyond those enumerated in the Constitution, but that there is no constitutional remedy for the violation of your rights unless they are specifically enumerated in the Constitution. Some might doubt that the Founding Fathers would agree with that interpretation, but who cares what they would have thought, right? We're all textualists now, so we get to reinvent the meaning of the text in accord with what we contend the words mean.

Scalia proceeded to defend his "immoralist" approach to constitutional interpretation, explaining that Supreme Court Justices should feel free to invent "constitutional" doctrine from whole cloth when it works against the common man, citing his own recent opinion expanding the doctrine of sovereign immunity - a concept completely absent from the Constitution. Oops - no, he didn't actually say that. I wonder why he forgot.

What's Wrong With Schools

For, well, probably as long as there have been public schools, people have been quick to complain that various things are "wrong" with them, and to propose sweeping "reforms" or "solutions" which... usually aren't empirically researched, but instead fall into the category of "that feels right" or "that sounds good". Meanwhile, teaching colleges focus on preparing teachers for the status quo. And even within the realm of high-end private school education there is little to no real innovation, let alone an effort to research alternative educational models and their effectiveness. At best, research seems directed at "how to keep doing what we are doing, but improve it."

Where there is genuine research (e.g., "children learn better in kindergarten through third grade when class sizes are limited to 20") it often appears to be misinterpreted (e.g., "all elementary school classes should be limited in size, because children will learn better") or reinterpreted around budgetary concerns ("we're limiting class size to 28, so children will learn better").

Meaningless proposals are often tossed around as if they represent great wisdom.

Higher standards for teachers! Well, great... but how many school boards have policies of not hiring the best applicants?

Higher standards for teaching schools! Well, great... but if you cut down on the number of students accepted into education programs, how will we respond to a worsening teacher shortage?

Pay teachers more! Well, great... who is going to pay this money, again? And how do we know it will affect school quality - how much more do you have to pay teachers before you start attracting additional people to the field? (And if you draw people to the field on the basis of income, are you sure they will be better teachers?)

Oh, this is a good one... Make the best teachers work where they are most needed, in the worst schools and classrooms! Because the best teachers will rejoice at the opportunity, and won't simply apply for jobs in a different school district. And there's no better way to draw in top quality candidates from other fields of study than to promise them jobs in failing schools.

We need teachers who inspire the students! Inspiration is great, but I don't recall ever having a teacher who I thought could be trained to be more inspirational. I personally experienced many highly qualified teachers who were not inspirational, but were nonetheless very good at teaching. And some teachers, across the spectrum of subject matter competence, are amazingly adept at squeezing any enthusiasm right out of their students.

More competition between students! The Economist recently criticized teachers for disfavoring competition in school, whatever that means. Are we speaking about competition between students, or a student's internal effort to improve (competition with self)? Is the proposal that we would be better served by making all classes harder? By grading on a curve, such that students were forced to compete with each other for their grades? And what evidence is there that increased academic competition would work? (My high school's football team was among the worst in the city when I first enrolled, and had not improved by the time I graduated - competition failed. But the school had a great academic record.)

Equalized funding per student! It is presumed to be unfair when an inner city school has lower funding than a suburban school, but funding alone explains nothing. There are poorly funded school districts which perform well, and well-funded school districts which perform poorly. While equalizing funding can create new opportunities in poorly funded school districts, it's not a magic cure. Guess who has the most time to interact with, support, mentor, and teach children? Hint: It isn't their teachers.

Standardized tests for everyone! And perhaps mandating standardized tests to gauge student performance is, to some degree, necessary given the status quo. But too much testing becomes counter-productive, as teachers "teach to the test". And a system in which an excellent school can be given a "C+" grade for not improving, while a substandard school can get an "A" for improvement, is ridiculous.

Mandatory homework! Because... busy work helps kids learn? Is there any evidence that mandatory homework policies have improved student learning? My anecdotal experience is that most "mandatory homework" takes the form of busywork - stuff that either doesn't have to be graded, or is easy to grade, and consumes the required amount of time. Meanwhile, the kids who would in theory most benefit from homework often don't have the support at home to help them with that homework.

It has been commented that the "Three R's" have been supplaced by the "Three S's" - sit down, shut up, stand in line. With zero tolerance, and muddled, muddied "reforms", that doesn't seem likely to change. I once hoped that the charter school movement might inspire some true innovation, particularly where charter schools were partnered with teaching colleges. Unfortunately, there doesn't really seem to be any interest in driving true reform and innovative teaching methods.

Clash of the Titans

A recent post by mythago reminded me of a couple of "slap my head in astonishment" moments in the practice of law....

First, I received an out-of-the-blue call from a lawyer, the day before trial. He wanted some tips for an opening statement for a single vehicle accident case, with the passenger suing the driver.

How did the accident happen?

The car went off the road.

Why did the car go off the road?

I dunno. I suppose she was driving too fast for the road conditions.[FN1]

What are your client's injuries?

She has a closed head injury.

What effect does that have on her life?

I dunno. I have it written down here somewhere.

Is there a significant impact on her life - one that would meet the Kreiner threshold?[FN2]

I dunno. I'm not sure.

Does she have any other injuries?

She has several herniated discs.

How does that affect her life?

She can't lift more than 20 pounds.

[Brief discussion of the Kreiner decision.]

Who is your opposing counsel?

I dunno. They changed it three times.

You know, it isn't that I want to give any credibility to those who say plaintiff's lawyers are lazy... but c'mon. (As I'm sure you're shocked to learn, I didn't get a follow-up call claiming victory, so the tort reformers can probably get only so much mileage out of this one.)

Then I received a request from a lawyer to respond to a summary disposition motion. He needed the answer quickly because the defense lawyer hadn't bothered to provide notice as required by court rule, but he didn't want to postpone the hearing. The defense lawyer presented arguments under MCR 2.116(C)(1), pursuant to which summary dispostion may be granted where "The court lacks jurisdiction over the person or property." She then argued that this rule applied because there had been prior litigation in the same court between the parties, presenting sort of a jumbled res judicata / collateral estoppel argument. She never did explain why the Court had no personal jurisdiction over her client, who resided in the state and county, in relation to litigation pertaining to acts he allegedly committed in that state and county.

She also presented an argument under MCR 2.116(C)(8), pursuant to which summary disposition may be granted where "The opposing party has failed to state a claim on which relief can be granted." Ordinarily a court looks only at the pleadings when evaluating motions under this subrule. Only she didn't complain about any defect in the pleadings, instead arguing that under the facts of the case she would prevail.

To her credit, she also claimed a right to summary disposition under MCR 2.116(C)(10), which permits summary disposition where "Except as to the amount of damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law." But motions under that subrule must be supported by admissible evidence - and she provided nothing but her own say-so in support of the motion.[FN3] (Even had she submitted an attorney affidavit to back up her say-so, that would not have met the requirements of the court rule.)

I am still wondering how she managed to start at subrule 1, and get all the way up to subrules 8 and 10, without noticing that her first argument belonged under subrule 6 ("Another action has been initiated between the same parties involving the same claim") or 7 ("The claim is barred because of release, payment, prior judgment ... or other disposition of the claim before commencement of the action."). Better yet, the prior judgment had a broad "release of all claims" clause which arguably applied, and which she didn't even bother to bring to the attention of the court.

(I would expect that, if she ultimately loses, the tort reformers will attempt to blame the jury.)

In any event, I vote for pairing these two up in some form of lawyer "grudge match".

-------
Footnotes

FN1: Another possible answer to this question, which would only be slightly less acceptable, would be "To skid to the other side."

FN2: Under Michigan's No Fault law, to bring a third party lawsuit you must satisfy the "No Fault threshold" as set forth by statute, and as rewritten by the Michigan Supreme Court in a recent decision called Kreiner v Fischer.

FN3: MCR 2.116(G)(6) provides "Affidavits, depositions, admissions, and documentary evidence offered in support of or in opposition to a motion based on subrule (C)(1)-(7) or (10) shall only be considered to the extent that the content or substance would be admissible as evidence to establish or deny the grounds stated in the motion."

Telling It Like It Is

There seems to be quite a bit of self-righteousness in the medical world over a doctor who was disciplined for his lecture to an obese patient. But, contrary to the popular spin, it does not appear that the doctor was censured for providing that medical diagnosis, but for his "'obesity lecture for women' that is a stark litany designed to get the attention of obese female patients."

He said he tells obese women they most likely will outlive an obese spouse and will have a difficult time establishing a new relationship because studies show most males are completely negative to obese women.

Bennett said he tells them their obesity will lead to high blood pressure, diabetes, heart disease, gastroesophageal reflux and stroke.

Telling somebody that they are medically obese? A medical diagnosis. Warning somebody that they are at risk from disease due to obesity? That seems medically appropriate as well. Telling somebody that their spouse, who is not his patient, will predecease them and adding "men will think you're ugly and no one will want to marry you", even if phrased a bit more nicely? That's pushing it.

Advancing Democracy Through Taxes?

The London Guardian presents an interesting take.

They're Really Good At This (Except When They're Not)

While speculating as to how Google might spend $4 billion, the Washington Post shares the following:

"Why would they want to get into the customer service business?" said Michael J. Kleeman, a telecommunications industry expert who was chief technology officer for Cometa Networks, which undertook an earlier national Wi-Fi network effort. He noted that two-thirds of the costs involved in such retail businesses are in customer acquisition and support.

"When was the last time you called Google with a problem?" he said.

If Google really needs suggestions as to how to spend $4 billion, I can come up with a few.... But, as you probably figured out, I'm actually posting about the "customer service" issue.

Most people don't have to deal with Google's customer service, because they don't have issues that can be resolved by customer service. There's an advantage to being the last to enter a field, such as free online email, in that most people will be relatively comfortable with your product when it enters the market, and you can build an interface that people are not likely to find confusing based upon past experience. In that respect, perhaps Google could enter the "proactive customer service" market - helping companies design products and services (particularly in an online setting) which minimize the need for customer service.

But stop by Webmasterworld, and check out what people who actually deal with Google's customer service have to say about it. It isn't unusual to read criticisms of Google's non-responsiveness on certain issues, or suggestions that if you don't like the first answer you get, a second complaint can get you a different answer you may like better. Google tends to respond in "teams" rather than assigning an individual customer service representative to an issue, which probably exaggerates some of the discontent. They rely heavily upon form letter responses - understandable given the volume of feedback they process, and their goal of providing actual responses to as many inquiries as possible - which can be a bit frustrating when the response is too generic or when the customer service representative accidentally selects the wrong form letter response. And if email isn't good enough... where's the phone number? (And there is at least one minor service Google offers where its customer service representatives don't even seem to be familiar with the terms of use for that service.)

So obviously I think there are a few bumps that need to be ironed out before Google should get into the customer service industry. Which is not to say that their present system, warts and all, doesn't beat what a lot of other businesses hold out as "customer service" these days. The response to an inquiry is, in my experience, usually reasonably prompt (usually less than 24 hours during the work week), and is usually on topic. Sometimes the response is highly personalized. I am not aware of any company that would provide feedback this detailed and helpful in response to an inquiry by a webmaster who is, at least in my opinion, trying to game Google's system.

If Google can continue to refine and improve its system, though, there should be a market for it. My guess is that the team approach and standardized responses permit Google to respond to user problems a lot more quickly than a typical customer service department, and without the annoying "search through our poorly written, poorly indexed compilation of FAQ's, try to find one that is not out of date, and see if you can implement it before calling us"-type "support" that increasingly pervades the computer world, with additional support provided by a phone bank in a foreign nation. Customer support horror stories such as this one don't exactly make me want to run out and buy a Dell. And the comment,

dellman Says:
August 19th, 2005 at 2:41 am

Hi everyone, I work for Dell Tech Support.
Now I’m not here to advertise for Dell, because I think it was a bad move for them to downgrade the consumer side of business (Dell is mostly concentrating on the business/government side now). Everyone should do what Jeremy R has done [by paying extra for "Gold Level" support]. If you still like Dell, then they still have the best customer service; that is if you buy the Gold Support contract. It means you’ll talk to someone in the States, every technician is Microsoft Certified, there is 2 minutes or less queue wait-times (usually none), and we provide seamless support (we’ll support anything attached or installed on your Dell, then if we can’t solve it, we’ll conference in the 3rd party support for help).

is hardly reassuring - Dell offers several levels of support, but if you want one that is helpful even their own representatives suggest that you're throwing your money away unless you buy the most expensive support package? At least with the companies I have dealt with, which have offered similarly poor support service, I haven't paid extra for that support, let alone been told that despite buying a support package I can't expect decent support because I didn't pay enough.

If Mr. Kleeman is right, perhaps Dell can be Google's pilot project.

What a Load of....

Over at TPMCafe, while also making some credible arguments against a workplace construct of "comparable worth", Michael Lind has shared thoughts that ought to make him blush and cringe....

The theory of comparable worth held that "male jobs" were remunerated better than "female" jobs. This was true during the era of the "breadwinner wage" for the male household head that prevailed in some sectors (with the support of labor organizers like the Irish-American activist Mother Jones and most progressives, I should add) between World War I and the 1960s.

Quite the red herring - if people Lind considers to have been "progressives" supported a concept in the past, it somehow becomes wrong for progressives to take a different stance in the present. I wonder how Lind would come down on the Republican party, the "Party of Lincoln", were it to take a stance on the equality of the races that differed from Lincoln's. Times change, the world moves forward, and progressives aren't stuck in Lind's fictitious past.

Most progressives and pro-labor liberals thought that employers should pay married men enough money for them to support a family, so that their wives could raise their children at home in comfort; it is only since the Sixties that many American liberals, inspired by what strikes me as unconscious elite class bias, have preferred the idea of warehousing infants shortly after birth in collective baby-kennels so that their mothers can join their fathers as wage slaves toiling in mostly-unfulfilling and poorly paid service sector jobs.

Ah yes, the good old days, when only men had to work as wage slaves in unfufilling jobs. What is this, but a load of... utter claptrap. This is how he characterizes advocacy for equal rights in the workplace, the right to work outside the home, the right to equal footing with men, and efforts to ensure the availability of quality child care?

Upon what planet was it, that women weren't working in those unsatisfying, menial positions (even if, in Lind's mind, as part of a "better world" where they could be paid less than men and fired upon marriage) prior to the 1960's? The trend of women entering the workforce began much sooner than 1960. For 1920, "American women in the paid workforce: 23.7% of all women; 46.4% of unmarried women; 9% of married women"; for 1940, "25.8% of all women; 45.5% of unmarried women; 15.6% of married women"; and by 1960, "34.5% of all women; 42.9% of unmarried women; 31.7% of married women". If your notion of "life before 1960" comes from watching television, you are apt to share Lind's misconceptions. But the trends that continued through the 1960's and 1970's began much sooner, and it is naive to suggest that this trend was dictated primarily by choice and not by need.

Inspired by "maternalist feminism," the breadwinner wage system was not so much anti-female as anti-bachelor; it was intended to force unmarried men to subsidize mothers of young children. It was reinforced by customs like the firing of female school-teachers when they got married; the theory was that their husbands would support them and the job should go to an unmarried woman who needed the money.

More accurately, being a school teacher was one of very few jobs which were open to single women and, during the period of time when single women were summarily fired upon marriage, single men received higher pay for exactly the same work. Is he ignorant of the fact that single men worked as teachers during that era? Is he ignorant of the fact that his example contradicts his larger thesis about equal pay for equal work? Probably.

(Note: it seems to me that nonsexist programs to allow both parents to take turns spending a few years with their infant children at home if they chose would be better than baby-kennels for the masses and lower-class nannies for the classes, but that's another subject).

That assumes that parents have the economic opportunity for one parent to stay at home, whether consistently or in alternation with the other parent, during their children's infancy. And if "lower class nannies" are as horrible as daycare, why doesn't he take on the "classes" which have relied upon lower class nannies for centuries, and continue to do so?

Intelligent Design

The Washington Post recently ran an article entitled, "Editor Explains Reasons for 'Intelligent Design' Article", with regard to what really should be a tempest in a teapot:

As editor of the hitherto obscure Proceedings of the Biological Society of Washington, Sternberg decided to publish a paper making the case for "intelligent design," a controversial theory that holds that the machinery of life is so complex as to require the hand - subtle or not - of an intelligent creator.

Within hours of publication, senior scientists at the Smithsonian Institution - which has helped fund and run the journal - lashed out at Sternberg as a shoddy scientist and a closet Bible thumper.

Well, the article doesn't bear out the "closet Bible thumper" end of the story, although with Sternberg's résumé, activities, and the subject and content of the article at issue, I can see why some might infer a religious motivation for his editorial decision. But, within the context of evolution, I cannot find anything in the article which would redeem Steinberg as a scientist.

Three years [after his appointment as editor], Sternberg agreed to consider a paper by Stephen C. Meyer, a Cambridge University-educated philosopher of science who argues that evolutionary theory cannot account for the vast profusion of multicellular species and forms in what is known as the Cambrian "explosion," which occurred about 530 million years ago.

Scientists still puzzle at this great proliferation of life. But Meyer's paper went several long steps further, arguing that an intelligent agent -- God, according to many who espouse intelligent design -- was the best explanation for the rapid appearance of higher life-forms.

Sternberg harbored his own doubts about Darwinian theory. He also acknowledged that this journal had not published such papers in the past and that he wanted to stir the scientific pot.

Assuming that "stirring the pot" is a sufficient basis to publish a paper on a non-scientific theory in a scientific journal, that still doesn't explain the decision to publish an article that seeks to advance such a theory. Nor does it explain why no counterpoint was presented, or for that matter an editorial disclaimer that the purpose of the publication was to "stir the pot" as opposed to trying to legitimize junk science.

He mailed Meyer's article to three scientists for a peer review. It has been suggested that Sternberg fabricated the peer review or sought unqualified scientists, a claim McVay dismissed.

"They were critical of the paper and gave 50 things to consider," Sternberg said. "But they said that people are talking about this and we should air the views."

Sternberg may wish to ask that his reviewers reveal themselves, so as to rebut the accusations of selectivity and fabrication. But even giving him the benefit of the doubt, I find it hard to believe that if such a list of "50 things to consider" were presented in relation to an article that advanced evolution, with the supposed conclusion being "but you might want to publish it anyway, so people can talk about it", the paper wouldn't be published. "People are talking about this and we should air the views?" There are still people who talk about the "fake moon landing." Being controvercial, or being the subject of discussion, does not transform something into science. And when a scientific journal gives a platform to only one side - particularly the "junk science" side - the editor deserves to be held accountable.

An e-mail stated, falsely, that Sternberg had "training as an orthodox priest." Another labeled him a "Young Earth Creationist," meaning a person who believes God created the world in the past 10,000 years.

An email to whom? From whom? Lots of nonsense gets included in emails - if these are the best examples of mistreatment that can be culled from the "near instantaneous and furious" response to Sternberg's decision to publish junk science, he got off easy.

This latter accusation is a reference to Sternberg's service on the board of the Baraminology Study Group, a "young Earth" group. Sternberg insists he does not believe in creationism. "I was rather strong in my criticism of them," he said. "But I agreed to work as a friendly but critical outsider."

Apparently with an emphasis on "friendly".

A former professor of Sternberg's says the researcher has an intellectual penchant for going against the system. Sternberg does not deny it.

"I loathe careerism and the herd mentality," he said. "I really think that objective truth can be discovered and that popular opinion and consensus thinking does more to obscure than to reveal."

And there he is, contradicting his prior herd mentality assertion that you should ignore hard science because "people are talking about" a junk science alternative.

It was [probably] a joke

It is interesting to see what happens when you are quoted in the news. Judging from the hundreds... er, many... er, few... er, make that zero emails I received today, I'm not sure if this media reference counts even as fifteen seconds of fame, in relation to Judge Roberts' statement in a 1985 memo,

"Some might question whether encouraging homemakers to become lawyers contributes to the common good, but I suppose that is for the judges to decide."

The article, as a whole, is quite fair in its depiction of my comments. The initial part, where the word "probably" belonged, is mitigated by the later quotation. That later quotation is a bit compressed,

"That sounds like the type of dark humor a lawyer might make about the profession," he said. "If I got that from nine of 10 lawyers, I'd assume he was making a joke about the profession."

I believe that reverses my phrasing - that is, I think I said that "If I got that from a lawyer, nine times out of ten I would assume he was making a joke about the profession." I think there is a subtle change of meaning. I also commented that my knowledge of the lawyer could affect my impression. But I can't complain too much, given that I do think this probably falls into the category of "dark humor about the profession", so on the whole my position was accurately reported. (And boy, would I be in trouble, if even a few of the billion or so deadpan sarcastic quips and comments I have written over the years were taken literally. I get in enough trouble with that tendency already - but sometimes you ruin the joke when you tack on a "smiley.")

Dana Milbank is very engaging and personable, and picks up on things very quickly. I can see why he's an effective reporter.

What Ails the Democrats

While David Ignatius points to an actual lack of focus within the Democratic Party, I think he underestimates the difficulty of articulating a coherent "opposition policy", particularly on a wide range of issues with no easy solutions. I don't think that it is true that Republicans really "play the game" better - instead, I think that they are better at framing the issues in a manner that benefits them, and in presenting a simplistic view of the world that is hard to penetrate with facts and nuanced arguments. What's the alternative to "cut taxes, cut taxes, cut taxes"? Raising taxes? What's the alternative to "sticking the course"? Cutting and running?

When he proposes,

What can the Democrats do to seize the opportunities of the moment? I suggest they take a leaf from Newt Gingrich's GOP playbook and develop a new "Contract With America." The Democrats should put together a clear and coherent list of measures they would implement if they could regain control of Congress and the White House.

does he recall what happened to Newt Gingrich and the "Contract On America"? If even the Democrats Ignatius views as weak and ineffective can tear down such a "contract" and its chief proponent, how does he propose that a Democratic alternative would not succumb to a similar fate?

Parents & Tattoos

Perhaps you have heard mythago propound on the benefits to a parent of sporting a giant tattoo, but aren't quite ready for that level of commitment? (To the tattoo, that is, not parenthood.) You're in luck!

How To Run An Effective Smear Campaign

As the tempest over NARAL's misleading ad about Judge Roberts fades into memory, perhaps there are some lessons they should learn from their mistakes.

1. Pick the right target. No, I'm not saying that they shouldn't have targeted Roberts. They just picked the wrong aspect to attack. If you want to attack a candidate for public office who is running on his military record, you paint him as a coward. If you want to attack a candidate who is known for working with children, start a whisper campaign that he is a pedophile. If you are trying to attack a candidate who is assumed to be pro-life... denouncing him as pro-life probably isn't going to affect him. Instead, praise him for his strong, pro-choice record.

2. Fabricate an alternative record. When the official records don't back you up, or contradict your position, ignore them. Instead, create an alernative record of allegations and recollections that cannot be easily refuted. Have "witnesses" from the smear target's past issue statements and even affidavits which support your allegations. When the target complains that the claims are false, declare it to be a swearing contest, and emphasize that "where there's smoke, there's fire" - "Would all of these people really lie? With this much evidence even [smear target's] most ardent supporters must recognize that there has to be at least some truth to this." Each time the credibility of one "witness" falls into question, produce two more.

3. Don't blink, and don't blush. When you are challenged that the inference that your smear campaign is obviously meant to inspire, stick to your guns. Don't say "We didn't intend that message", and certainly don't admit that the inference would be untrue. (If you care enough about such niceties as your honor and credibility, you shouldn't have entered the smear business in the first place.) When challenged on your message, and you aren't comforable with the outright lie, be evasive and nebulous - "You think his record supports that inference? Well, I can certainly see why somebody looking at the facts would draw that conclusion."

4. Enlist stupid people to help your campaign - while keeping them at arm's length. You know, the type of people who would think it is funny to besmirch a wounded war veteran by wearing "purple heart band-aids" at public events. That type of antic can backfire, so you want to maintain some plausible deniability if there is an adverse public reaction. If you're lucky, the nation's news clowns will play up the bandaid-type story, advancing your smear campaign, without bothering to comment on the cowardice or hypocrisy behind such a tactic.

Hourly Billing II

Yesterday I referenced a joke about how a highly efficient lawyer can suffer from billing by the hour (with the rather obvious implication, I think, that inefficient lawyers can benefit from that system). The weblog I referenced, that of the Greatest American Lawyer (which, if you read the blog, is not intended as braggadocio) devotes quite a bit of attention to alternative billing systems which provide incentives to the lawyer both to be efficient and to achieve a good result.

There are some types of legal work where it is difficult to move away from hourly billing. And there are some consumer advocate types who seem to contend that hourly billing is usually best for the customer, objecting that a lawyer who switches to some form of "value billing" when, for example, using an automated document system which allows the lawyer to perform the work in a short amount of time, causes consumers to pay more. And it is true that an estate planning firm which has invested tens of thousands of dollars in an automated document system is more likely to charge a flat fee for a set of basic estate planning documents that reflects more than the attorney's time investment in creating those documents. Yet I believe that to be appropriate, first because the firm has to recoup the investment in creating, maintaining, and updating the system, and second because the "old way" is not necessarily either cheaper or better. I am aware of estate planning firms which go out of there way to improve and expand upon the product they provide to their clients though automation without increased cost. When you're billing on an hourly basis added value usually means added time, and thus added cost. In the longer term, as more firms automate and offer flat fee document packages, there should be market pressure to lower cost.

Moving away from an hourly model becomes more complicated in areas of law which don't lend themselves to automation or to the reuse of a lawyer's prior work. When you look at a big enough picture, perhaps that is less true - if you track enough cases of a particular type over a sufficient period of time, you can probably derive averages that would largely hold accurate for future work. And it may be reasonable to fashion a flat fee, even with significant variation, for some classes of cases. Many firms seem to apply a flat fee or modified flat fee for various forms of misdemeanor criminal defense.

To the extent that a higher fee is viewed as boosting a lawyer's devotion to achieving the best outcome, suggestions for a bonus mechanism to provide that incentive aren't universally possible. Few criminal defense lawyers would be interested in fee agreements which provide a bonus only in the event of acquittal. In cases where the outcome is likely to be mixed, or where there is a substantial probability of an adverse outcome, a lawyer is apt to view it as common sense that full compensation should not be tied to the outcome. At the same time, staying with a pure hourly system provides neither an assurance that the lawyer will achieve a better outcome, nor that the lawyer will strive for efficiency. (In the context of divorce litigation, it is not unusual to encounter lawyers with a reputation for aggravating conflict and bringing unnecessary motions, with the principal effect of driving up the legal fees.) Yet a flat fee system can provide a disincentive for the lawyer to invest time and energy into pretrial motions or investigation, which might otherwise improve the outcome.

Dental Care

I have been blessed with pretty good teeth, and I try to take good care of them, but the time nonetheless came around for some preventive care... fillings only last so long. I have been having my work done by Dr. Craig Blogin in Ann Arbor, MI. If you're ever in the area and feel like having dental work, I have no qualms about recommending his practice.

Hourly Billing

The Greatest American Lawyer reminds us that a "fast efficient worker should never bill by the hour if they hope to succeed in a traditional law firm which is dependant on hourly billing".

Blaming The Public

In relation to Iraq, I recall the position of "Stormin' Norman" Schwarzkopf as set forth in his 1993 autobiography:

From the brief time that we did spend occupying Iraqi territory after the war, I am certain that had we taken all of Iraq, we would have been like the dinosaur in the tar pit - we would still be there, and we, not the United Nations, would be bearing the costs of the occupation. This is a burden I am sure the beleaguered American taxpayer would not have been happy to take on.

George H.W. Bush similarly opinined in 1998,

We should not march into Baghdad. To occupy Iraq would instantly shatter our coalition, turning the whole Arab world against us and make a broken tyrant into a latter-day Arab hero. Assigning young soldiers to a fruitless hunt for a securely entrenched dictator and condemning them to fight in what would be an unwinnable urban guerilla war, it could only plunge that part of the world into ever greater instability.

On Monday, George W. Bush expressed,

Pulling the troops out would send a terrible signal to the enemy. Immediate withdrawal would say to the Zarqawis of the world and the terrorists of the world and the bomber who take innocent life around the world: 'the United States is weak.

Yet, despite the Bush Administration's protestations, this war was sold to the American people as something that was going to be short and easy. I'm not sure quite how that sale was made - but I think it would have been better made with a candid discussion of the true costs and burdens of invading, occupying, and the attempted reinvention of Iraq. Granted, the sales pitch would have been less convincing, and it is possible that in the end the American people wouldn't have bought into a war that they knew would be this difficult, this protracted, and this expensive. (I'm sure that at least Donald "Democracy is messy" Rumsfeld would have accepted the will of the people, right?)

We now have columnists like David Ignatius suggesting that, in regard to the war, the President is tone deaf. Or Harold Meyerson all-but calling the war plan a failure. But we don't seem to have any reflection upon the fact that had the Bush Administration respected the American people enough to tell the truth from the beginning (say what you will about whether they believed WMD's were present; the truth I'm talking about is that of the difficulty and cost of the post-war) we would either have made the informed commitment to stick with the project despite those risks and costs, or we would have chosen not to invade. Either way, we would be better off.[FN1]

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FN1. The case is sometimes made that it isn't a question of whether "we" are better off, but is a question of "bringing freedom and democracy to the Iraqi people". We have yet to do that, and may never accomplish such a goal. The moral weight of that argument, and the counter-argument that the aftermath of invasion could be no better or worse than life under Hussein, is something that should have been thoroughly discussed and considered in the pre-war period, as a factor in the nation's informed choice.

Arguing With Narcissists

I was reading the other day about the large number of "psychopaths" that end up at the highest levels of business - their cut-throat, take-no-prisoners tactics take them to the top of a company, the Peter Principle run amok, and once there they are poorly equipped to perform their job. This article, a similar feature I just found courtesy of Google, explores the role of psychopaths in business (and in business scandals). It also describes "another personality that's often found in the executive suite: the narcissist."

Maccoby counts Apple's Steve Jobs, General Electric's Jack Welch, Intel's Andy Grove, Microsoft's Bill Gates, and Southwest Airlines' Herb Kelleher as "productive narcissists," or PNs. Narcissists are visionaries who attract hordes of followers, which can make them excel as innovators, but they're poor listeners and they can be awfully touchy about criticism. "These people don't have much empathy," Maccoby says. "When Bill Gates tells someone, 'That's the stupidest thing I've ever heard,' or Steve Jobs calls someone a bozo, they're not concerned about people's feelings. They see other people as a means toward their ends. But they do have a sense of changing the world -- in their eyes, improving the world. They build their own view of what the world should be and get others recruited to their vision. Psychopaths, in contrast, are only interested in self."

The article is perhaps a bit quick with its armchair diagnoses, but leaving aside the individual examples pretty much everybody who has worked in business knows that the larger points hold.

A few years ago, I heard a prominent litigator (who did not strike me as a narcissist, although he was very comfortable with himself) define a litigator (roughly - I can't recall his exact words) as follows: "A ball of ego, suspended over a bottomless pit of insecurity." That's a decent description of the narcissist - and perhaps more entertaining than poor listeners, weak on empathy, and touchy about criticism. The narcissist's "touchiness" about criticism is a subconscious reaction to fear that the ego ball will plummet to the depths of the pit. It can be very interesting to work on a case where your opposing counsel is a full-blown narcissist - in many cases, if you recognize what you are dealing with, you can manipulate them to your advantage. They tend to be covered (figuratively, of course) with big, red, shiny buttons that just scream "PUSH ME".

In an online setting, it is sometimes difficult to tell whether the person on the other end of an exchange is a narcissist, or is the narcissist's counterpart - somebody who is very insecure but hasn't developed the narcissist's armor. Where the narcissist fears having his armor pierced, the insecure person fears being judged inferior, in both cases as a result of distorted self-image. Narcissists, in my opinion, can use some deflation - sure, behind all that psychopathology, they are not really different from their insecure counterpart, but they get so much apparent enjoyment from the manner in which they mistreat people that I just can't bring myself to pity them. (You do, though, have to be careful about others... once they realize that they are out of their depths, a "debate" with a narcissist can be an ugly thing to watch. As the narcissist quickly resorts to gutter tactics, you also have to recall the adage about what can happen if you wrestle with a skunk.)

Wishful Thinking?

Today's Times writes, in relation to Judith Miller,

As of today, Judith Miller has spent more time behind bars to protect privileged information than any other New York Times journalist.

Except Miller appealed her case all the way up to the Supreme Court, and has been given the unequivocal answer that the communication at issue is not privileged. The Times can argue that she is taking a stand in defiance of the law as a matter of principle, and it can continue to lobby Congress to create a privilege, but it should not bandy about claims of privilege where it surely by now understand that none exists.

Blinded With Science

The New York Times the other day wrote an editorial, supposedly by a "science writer", which can only be described as atrocious in its reasoning. Ostensibly "in defense of common sense", the author effectively proposes something else entirely - the "what makes sense to me" standard. The first major flaw of the argument is that scientists don't reject "common sense" - they reject instead the notion that uninformed opinion is an appropriate substitute for measurable scientific data. The second major flaw, which ties into the first, is that "common sense" flows from knowledge. It was once "common sense" to many that the sun was carried around the earth in a chariot driven by the sun god, Ra. We now have a great deal more knowledge, and the columnist would probably now decry that particular belief as defying common sense (presumably without even noticing the contradiction in his argument).

It is interesting to note that this type of flimsy argument is effectively couched in terms of common sense. (Essentially, "It is common sense that common sense makes sense.") This type of overstated case, in my opinion, furthers an increasingly problematic contempt for science by our nation's leaders, most notably its Republican leaders. When you don't like the scientific consensus on global warming, appoint ideologues to important commissions and phony up dissention. When you don't like the scientific consensus on fighting HIV, appoint ideologues to important commissions and phony up data to favor "abstinence only" programs for Africa. When you don't like the scientific consensus on evolution, embrace the phonied-up "alternative" claim of "intelligent design". Get your supporters to close quarters in defense of ignorance over science, get them to extend grants to institutions which advance ignorance over scientific knowledge (as companies like Dow Chemical and ExxonMobil have done with global warming), and laugh when people take this particular science writer's advice and dismiss global warming with "common sense" statements such as, "If the world is getting warmer, why was it so cold last night?"

Gotta Love Those Conclusory Statements

It's not unusual to see an editorial present a conclusory statement, and then to extrapolate from that statement as if it is gospel. (Consider, e.g., Richard Posner's recent editorial in the New York Times, in which he postulates that the media has a liberal bias which is increasing, without presenting any evidence or authority for his position - the type of reasoning which would surely inspire him to at least metaphorically rap one of his law clerks across the knuckles. The best "evidence" he presents is that a disproportionate number of reporters, as compared to members of the public at large, self-describe as "liberal" - at most a feather on his side of the rhetorical scale, particularly given the manner in which editorial policy is largely dictated by giant corporations and media conglomerates.)

I was reminded of this by an unsigned editorial in today's Washington Post, on the subject of the Alternative Minimum Tax, its growing reach into the pockets of the middle class, and the complete lack of will by Congress (despite years of gleeful tax-slashing for the rich) to reform the program. After speaking to those issues, the editorial asserts,

Are no repairs to the AMT possible that would allow it to continue? It can be indexed for inflation, perhaps. But that won't do anything about the real problem, the basic fact that the AMT lacks any legitimacy as a source of broad-based revenue for Uncle Sam. Other than expediency, there is no legal or moral principle on which it can be defended.

I guess it is technically true that an AMT-style system could be woven into the tax code at large, such that just as there are thresholds that must be crossed before certain expenses become deductible, there could be caps on how much may be deducted - in the manner of the cap on the mortgage interest deduction. But I am not sure of the glory in endorsing a clumsy and inefficient means to the same end over something that, at least as intended, would be more simple and more fair. All else being equal, what's the crime in expediency?

The purpose of the Alternative Minimum Tax was to prevent the rich from deducting away their income tax such that they paid little or nothing, while the poor and middle class continued to shoulder their intended burden. The effect of the AMT has been mixed - the wealthy have developed new methods of sheltering their income from taxes, and have been incredibly successful at lobbying the government (particularly the present administration) of redesigning the tax code in their favor. It is in no way "immoral" or "illegal", as the Post's language implies, to create a system such as the AMT to ensure that even the wealthy pay their fair share of the nation's taxes. There is certainly nothing moral in perpetuating the current AMT system, which will soon treat the mortgage interest deduction of many middle class homeowners in the same manner as a billionaire's overseas tax shelter.

The editorial is also, perhaps intentionally, misleading in bringing up the sad story of people who were left with unmanageable tax debt as a result of the AMT, making it sound as if this is the norm for people who receive stock options as opposed to the exception. Prior to the burst of the "dot com bubble", many employees were urged to exercise their options and hold on to the stock. An employee who exercised a stock option while a stock was at $100, but was left after the bubble burst holding a stock that was worth $1, could face an enormous tax liability on money that, from the employee's perspective, existed only on paper. (A similarly situated employee who exercised the stock option while immediately selling the stock would have the same tax liability, but would have the proceeds of the stock sale from which to pay the taxes.)

Even if you assume that the AMT is "immoral", the choice is not available to abolish that tax. Congress has no intention of abolishing the AMT, and President Bush has been particularly cautious about its mention (even though he has to know that it will ultimately claw back most of the middle class tax cuts he used to justify much larger tax breaks for the rich.) So if your choice is between two evils - leaving it as it is, or adusting the AMT so that it takes into account the tax shelters created to avoid its present reach and indexing it to inflation such that it does not affect the middle class - why not pick the lesser evil?

Keeping Ahead of the Joneses

A study is hitting the papers which suggests that money can be a key to happiness (if not the key) - not so much how much you have, but that you have more than your peers:

Researchers in the United States examined the "hedonic treadmill hypothesis" that suggests people are in a continual wealth race with their neighbours.

Measurements were taken of the age, the total family income and the general happiness of a group of people aged 20 to 64.

The results showed that the richer people were relative to their peers of the same age, the happier they tended to be.

I hope what is being measured is more of a cultural phenomenon than engrained human nature. (But there is evidence that the problem of 'coveting your neighbor's property' has been plaguing humans for a very long time.)

A *Really* Bad Copy

I had a phone conversation this morning that went something like this, in relation to a photograph from a motor vehicle accident case:

Me: I got the fax you sent me of the photograph, but the copy is really bad. All I see is a big black area - I can't even see where the bus is.

Them: The bus isn't in the photograph.

But then, if you fax somebody a photocopy of a photograph, do you really expect it to come through as something more than a big black blotch?

Iran's Nuclear Intentions

Iran has now effectively made formal its determination to develop nuclear weapons. ("Not exactly a surprise.")

Immigration Woes

The Washington Post shares an editorial by a woman who is upset that her illegal alien spouse could face deportation and a long period of exclusion from the country if caught:

The fact is, he could be deported and be banned from returning to the United States for 10 years. If he did get deported, returned to his home country, and applied for residency based on the difficulty it would cause our family, he wouldn't be granted the hardship waiver for the following reasons: [My considerable income, my college education, our family's good health, and our small family size]

* * *

Wouldn't it make more sense to amend the law and allow our family, and others in the same quandary, to stay together? A $10,000 fine would be more palatable than a 10-year separation, and it wouldn't cost American taxpayers a dime.

Somehow, though, even though some visa programs arguably amount to this, I am not sold on the notion that the wealthy and fortunate should be able to avoid immigration laws and effectively buy legal residency.

Times v Sullivan

Today, George Will demonstrates why the Supreme Court had it right, when they set a high legal burden for public figures who claim defamation. Responding to the suggestion by Jimmy Carter that he gave Carter's debate briefing book to Ronald Reagan, Will says (in my crude paraphrase):

Carter is a liar who lost the election because of his bad foreign policy and poor management of the economy, not because of a briefing book. He's lying when he says I gave the briefing book to Reagan, because I have denied taking it. And it wouldn't have made any difference if I had, because Reagan was that good. Carter read my book about baseball, which he really liked. Did I mention that he's a liar? And that he was incompetent?

Yup. Public figures can usually take care of themselves.

The Drug War

A couple of weeks ago I criticized John Tierney for not taking on the drug war in a piece which seemed to confuse the overbroad application of Florida's draconian anti-drug laws with a campaign against pain management. So I have to give him credit for directly tackling the issue a couple of days ago.

Finding Information

Googling people is old hat these days, but the New York Times still find its mention to be news that is fit to print:

Buyers who are boldface names or come represented by a reputable broker can get a showing pretty quickly. Sometimes, Ms. Baum said, she has had to search Google or Lexis/Nexus to learn more.

Okay... I understand Google searches. I understand Lexis searches. But Nexus? (Do their editors really not do enough Lexis/Nexis searches to catch that typo?)

How Do You Rate Us?

A mini-survey at the end of an MCI customer service call - "How do you rate the service you received in this call? Bad, or Excellent?"

Engineered for grade inflation?