Tuesday, January 31, 2006

Only Four Months? I Guess They Recovered The Goose....

In "Seven Years for a Pound of Butter", the London Guardian provides examples of criminal sentences from 1825.
Imprisoned Four Months - John Uncles, 16, Michael Cox, 15, and John Wilson, 5, for stealing a goose.
(I suspect, and hope, that to be a misprint of "15.")

Sunday, January 29, 2006

Fraud on eBay? No Kidding....

The New York Times has noticed that not everything offered for sale on eBay is genuine. They observe in relation to buyer and seller feedback, which ostensibly helps prevent fraud:
EBay's feedback system that allows buyers to post negative reviews of bad sellers is supposed to protect customers like Ms. Pollack. Yet all of the alleged counterfeiters had consistently positive ratings.

Ms. Steiner of AuctionBytes.com said this situation was not uncommon. Buyers and sellers are often reluctant to leave bad reviews, lest their own reputations suffer.
I think more explanation would be helpful, as eBay's system of feedback permits sellers to effectively coerce buyers into leaving good feedback or withdrawing negative feedback.

I have purchased a number of items over the years from eBay, none of which were counterfeit. Each and every time, the seller did not give me feedback until I had rated the seller's performance. During the same period I have heard numerous complaints from aggrieved buyers who left what they claim to be accurate negative feedback about sellers, only to find that the seller posted a negative rating and comments on their account. The seller then offers mutual withdrawal of the comments, never mind the truth. eBay's policies on negative feedback are effectively seller-oriented. I don't know if they were designed to be so favorable to the seller, but I am not particularly surprised that they remain that way - eBay makes its money, after all, by keeping its sellers happy and maximizing the number of items available for sale.

In most cases the only action by a buyer that can be rated by the seller is how quickly the buyer paid for the purchased item. Given that reality, eBay should consider adjusting its feedback system such that the buyer can leave feedback about the seller at any time, but the seller cannot see the feedback and the rating is not incorporated into the seller's profile until after the seller rates the buyer. While there may be some buyers who manage to manipulate that system, for the most part I think it would lead to more accurate ratings and reduce the fear buyers face when they receive shoddy, broken, or counterfeit merchandise.

Update: Over at Crime and Federalism, Mike proposes a reasonable ratings reform of his own, and promises a future analysis of whether eBay is a criminal enterprise under the RICO statute.

Friday, January 27, 2006

You've Never Heard of Hyperbole, Mr. Goldberg?

Apparently there actually is a person who reads Maureen Dowd's columns while somehow missing her often over-the-top use of sarcasm, irony, and hyperbole - Jonah Goldberg:
Maureen Dowd, the reigning scribe of unthinking liberalism, recently wrote in the New York Times that Dick Cheney — whom she calls "The Grim Peeper" — is trying to turn America into a "police state." "I don't like the thought of Dick Cheney ogling my Googling," Dowd writes without rhyme or reason.

It was a silly column, even for Dowd, but it does capture a certain level of both the legitimate fear and the outright paranoia out there.

Partisanship is obviously part of the equation. For instance, the heretofore-unknown disease of Cheneyphobia seems to be reaching epidemic proportions. It seems to cause some people to believe that the vice president of the United States has superhuman powers and that he is capable of personally reading hundreds of millions of e-mails while listening to thousands of hours of phone conversations and — simultaneously — scanning trillions of web searches.
Oh, I recognize that Goldberg doesn't believe in the literal truth of what he writes. He is smart enough to recognize that Dowd does not literally expect Dick Cheney to be personally reviewing her Google searches. Further, it is not the fault of the political left that Dick Cheney has become the poster child for intrusive government. Has Cheney ever spoken publicly on any government intrusion into individual privacy without warmly embracing the intrusion?

Goldberg doesn't identify even a single person who "seems to" believe Cheney capable of serving as a one-man Total Information Awareness project; I doubt that he sincerely believes that such a person exists. One would think that somebody so gifted with the use of hyperbole would recognize its use by others.

Picking Your Causes

Of all people, Michelle Malkin complains that celebrities aren't rallying to her cause du jour, the question of whether the state of Massachusetts should have sought to remove Haleigh Poutre from life support, particularly in light of evidence that what had been diagnosed as a "vegetative state may not be a total vegetative state."
While Haleigh clings to life, I've pondered how we might help persuade the plug-pullers to put off the child's state-sanctioned death sentence. I propose nominating her for a Nobel Prize. It bought Tookie Williams five extra years.

Jamie Foxx and Susan Sarandon, will you join me?
Malkin argues that up to this point "The only person who wanted Haleigh alive was her stepfather, who will likely be charged with murder if Haleigh dies." I'm not sure why Malkin deems that relevant, given her endorsement of decisions by the State of Texas to remove a six-month-old baby from life support over the objections of his parents, and to remove a severely brain-damaged stroke victim from life support over the objections of his family. She does not present any evidence that Haleigh has any better chance of recovery, or even as great a response to external stimuli, than that stroke victim. Nor does it seem particularly relevant that those two patients were designated as "terminal", given Malkin's apparent position that doctor's opinions which back up the state's desire to terminate a patient's life support can't be trusted
It was The Experts' unequivocal assessments that led the court to declare Haleigh in "an irreversible vegetative state" and to assert that "the child could not see, hear, feel or respond." Now, they admit they were wrong. ... Haleigh's story is a wake-up call to "right-to-die" ideologues who recklessly put such unlimited trust in the medical profession and Nanny State.
She's in no position to be accusing celebrities of hypocrisy.

But to me, the greater issue is not the removal of this unfortunate child from life support, but how she came to be in that position. How did an eleven-year-old child end up beaten into a coma by her abusive father? What can we do to reduce child abuse and to be more effective in protecting children from abuse? Will Michelle Malkin join me?

Hardly. She has other priorities, such as defending the mass internment of American citizens of Japanese extraction during World War II. Malkin's only apparent use for abused children is as a basis for attacks on Democrats. She really knows how to pick her causes....

Wednesday, January 25, 2006

How's This For Brain-Dead, Anti-Client Policy

I spoke with a lawyer today who is having a problem with the Michigan Attorney Grievance Commission. It isn't that he has done anything unethical - he has a client who wants money back, and sometimes clients use the AGC has a hammer to try to coerce a refund.

The attorney took a client for a custody matter on the eve of a complicated hearing, and thus requested an engagement fee. The client agreed to the fee, and does not dispute that he knew it was a non-refundable fee. Past ethics rulings indicate that under certain circumstances an engagement fee is acceptable, due to the nature and circumstances of the engagement and work to be performed. If a lawyer has to turn away work or block of a substantial amount of time in order to assist a client, and has to decline work to keep that time free, an engagement fee protects the attorney in the event that the client "changes his mind".

According to the attorney, the AGC is pressing him to refund part of the money he charged and that, if he does so, the matter will be dropped. They are taking the position that because he did not charge the engagement fee on top of his hourly rate, but instead credited the engagement fee against the total final bill, it wasn't truly an engagement fee. There is nothing in the Michigan Rules of Professional Conduct which would support that interpretation, and Michigan's contract law would support the attorney's desire to enforce the contract as written.

In essence, attorney indicates that the AGC is stating that in the future the lawyer should charge a flat engagement fee - likely thousands of dollars, not refundable under any circumstance, and not extend any credit to the client for work performed. That's what corporate law firms do. From the first minute the client is billed for any work performed above and beyond the engagement fee.

That is an absurd position to take, though, in relation to individual clients who may not be able to afford to effectively gift a lawyer thousands of dollars simply for agreeing to take a case. A lawyer who tries to structure an engagement fee to the maximum benefit of the client, offering such credit, should not be punished for doing so. How is it more fair or more ethical, and less an "excessive fee" for the lawyer to double-dip?

Monday, January 23, 2006

Leadership in Government

When we complain of a lack of leadership in government, are we wishing for a leader who takes a "my way or the highway" approach, forcing his will upon the legislature, or are we looking for a consensus builder? Describing leadership in local government, Joe Ohren suggests it is the latter:
When strongly held views clash, and no single position commands a majority, then we either postpone action or work out a compromise. And, despite the fact that for some that term has negative connotations - selling out your principles or maybe even muddling through - it represents the best of politics and politicians.

What we call lack of leadership is often another label for lack of agreement. We want our mayors or school board chairs to be more effective at facilitating and finding consensus rather than muddling through. For me, that means being more effective politicians, since what is politics if not accommodating multiple and conflicting values, facilitating the decision process and avoiding the conflict, rancor and deadlock that result when we "stick to our guns." Muddling through is endemic to democracy.
On a national scale, it seems that Clinton often worked toward consensus (not controlling Congress for most of his Presidency, he had to), and despite any number of scandals left office with a high approval rating. Bush tried his "my way or the highway" approach with issues such as Social Security and, despite having a majority in both houses of Congress, stumbled badly and, at least by whatever standard is measured by opinion polls, is unpopular. I think both could have taken notes from the other - sometimes Clinton sought compromise over issues which called for direct leadership, and Bush often seems to display contempt for compromise where it is not likely to result in the outcome he desires. But at least by the measure of the last two Presidents, regardless of what our pundits have to say about the Democrats lack of leadership, at least in retrospect the public seems to have a greater appreciation for a President who can build consensus.

Friday, January 20, 2006

Do you believe in magic?

Polygon, the Dancing Bear compares lawyering to wizardry (J.K. Rowling-style).

"I'm Your Lawyer. Here's Exactly What You Want To Hear."

In what seems to be a soft-sell of the Alito nomination, Michael Kinsley argues that his anti-Roe memos should be taken as his providing the President with a legal basis for views the President already held:
The memos gave the appearance of urging the Reagan administration to take a more conservative line on issues such as school prayer and employment discrimination. But White House press secretary Scott McClellan revealed that these were actually Reagan's views already. "I think what those files show is a young White House staffer helping to provide legal analysis in support of the president's agenda, President Reagan's agenda." In other words, Roberts supplied reasons for views Reagan already held. Roberts was just a repairman, fixing views he didn't necessarily own.
If he truly believes that, his piece should be titled "Why lawyers are useless" instead of "Why lawyers are liars". Now I will grant that there has been some real hackery in the Bush II White House, with lawyers presenting the most attenuated arguments to defend the indefensible, but those opinions were meant to provide the Bush II administration with plausible deniability when it was caught breaking the law. "Our lawyers said it was okay." It's something else entirely to suggest that a lawyer writing a memo in relation to existing case law should advocate the desired outcome rather than educating his bosses as to the actual state of the law. Kinsley continues,
When do lawyers become free to have their own agenda and say what they really think? Not when they leave the government and enter private practice. Roberts told the Senate Judiciary Committee that "the positions a lawyer presents on behalf of a client should not be ascribed to that lawyer."
But there is a big difference between a lawyer's private thoughts and advice to a client, and what a lawyer might do or say when advocating for the client in court. A good lawyer will privately tell the client the state of the law, how to conform to the law, and the risks of trying to skirt a law - including considerations which weigh against what a client wants to do - but in court will present the strongest possible argument on behalf of his client, interpreting the law in the light most favorable to the client. The role of a lawyer who is advising a client is different from that of advocating for the client.

Kinsley reminds me of this lawyer joke:
A businessman was trying to choose a lawyer, but was being very careful about it. He scheduled appointments to interview three lawyers.

At the first lawyer's office, after an initial exchange of pleasantries, the businessman said, "Okay, let's get down to business. I have an important question for you, and I want you to think carefully before answering. How much is two plus two?"

The lawyer raised his eyebrows. "two plus two is four." The businessman thanked him for his time, and proceeded to his next appointment.

The second lawyer, who was also a CPA, seemed a bit more particular than the first lawyer. After an initial discussion, the businessman again announced that he had a very important question, and asked, "How much is two plus two?"

The second lawyer went over to a computer, and entered figures into a spreadsheet. "According to my calculations, two plus two is approximately four." The businessman thanked him for his time, and proceeded to his next appointment.

The third lawyer sat behind a big mahogany desk, and smoked a cigar. He seemed rather self-important as compared to the other two, but at the same time appeared to be much more successful. The businessman again announced, "I would like you to answer a very important question for me, before I decide whether I should use your services. How much is two plus two?"

The lawyer pulled the shades, locked the door to his office, and asked in a hushed voice, "How much do you want it to be?"
Kinsley is essentially arguing that the third type of lawyer is the norm and not the exception. Maybe Alito really does place himself in that third category, in which case Kinsley has convinced me that Alito does not belong on the Supreme Court.

Thursday, January 19, 2006

What Would the Bush Administration Make of This?

Can typos get you somehow tangled up in an absurd fishing expedition?

I was looking up the Texas Code on Google, but was a bit clumsy and ended up searching for "Texas cod". Google helpfully asked, "Did you mean: texas coed"?

"She's Interested in Literacy"

According to GW, his wife isn't interested in running for office:
"She's not interested in running for office. She's interested in literacy," Bush said during an appearance at RK Moving & Storage here.
Perhaps Bush isn't sufficiently familiar with his own programs to know that it is possible to both run for office and be interested in literacy.

I don't mean to imply that Bush is sexist, although his comments may well convey that impression. He may be silently considering this little incident, which in a Senate campaign might inspire comparisons to Chappaquiddick.

It's Bad Enough That They're Incompetent....

But their priorities are all wrong. Apparently, of the major search engines, only Google was willing to stand up to the Bush Administration's continuing war on pornography.
Via John Battelle and Google Morning Silicon Valley, Feds want Google search records from the San Jose Mercury News covers the Bush administration demanding last year that Google and other search engines turn over aggregate search information to help revive a child protection law. Google has refused to comply with the subpoena. Other search engines apparently have. Google's fighting in court this week not to be force to hand over the data.

In particular, the Bush administration wanted one million random web addresses and records of all Google searches for a one week period. The government apparently wants to find out how much pornography shows up in online searches and how often people may seek it.
The article points out how absurd the demand is:
Here's a thought. If you want to measure how much porn is showing up in searches, try searching for it yourself rather than issuing privacy alarm sounding subpoenas. It would certainly be more accurate.

Getting a list of all searches in one week definitely would let US federal government dig deep into the long tail of porn searches. But then again, the sheer amount of data would be overwhelming. Do you know every variation of a term someone might use, that you're going to dig out of the hundreds of millions of searches you'd get? Oh, and be sure you filter out all the automated queries coming in from rank checking tools, while you're add it. They won't skew the data at all, nope.

If you do, from talking with the head of a child porn fighting group in the UK, my understanding is that many euphemisms and code words are used that won't immediately register as child porn terms.
Note to Bush - save us from the terrorists, not from the 72 horny virgins.

George Will Wants To Have It Both Ways

Regurgitating his idiotic stance that the extension of any employment-related benefits transforms an employer into a "welfare state", in "Shoplifting as Governance" George Will then pretends that WalMart has the most generous health insurance benefits in the United States:
Eighty-six percent of Wal-Mart employees have health insurance, more than half through the company, which offers 18 plans, one with $11 monthly premiums and another with $3 co-payments.
Perhaps Will doesn't see "lying by omission" as lying, but obviously he's not telling the whole story. Employees are not getting anything close to comprehensive health coverage for "$11 monthly premiums" - they are probably getting a discount card for participating medical service providers. And a plan with "$3 copayments"? If that is a comprehensive plan covering prescriptions and all health care, it may well be the most generous plan in the nation. What are the odds, though, that the plan covers essentially nothing?

He also seems to be complaining that the legislature should have passed a tax instead of, well, a tax.
Maryland's grasping for Wal-Mart's revenue opens a new chapter in the degeneracy of state governments that are eager to spend more money than they have the nerve to collect straightforwardly in taxes.
In standard George Will-branded hypocrisy, no tax on regular working people is too high if it funds a direct or indirect corporate subsidy. And no tax that directly targets a business that is exploiting what amounts to a de facto state subsidy of its workforce is fair, because such notions as personal responsibility and paying your own way should only apply to the working masses and never to corporations.

No wonder Will is a baseball fan.

Will speculates that Wal-Mart may already be almost meeting the state target of spending 8% of its payroll on health care. If so, the burden on Wal-Mart of meeting the new state law would seem to be pretty small. Meanwhile, should I hold my breath waiting for the ever-hypocritical George Will to announce that he is rejecting his own employer-paid health care plan in favor of the Wal-Mart $11/month plan, or the $3 copay plan?

Yeah, right.

Wednesday, January 18, 2006

Oil Prices and Attacking Iran

According to Charles Krauthammer, the effect of removing Iranian oil from the world market is likely to prevent the imposition of any significant sanction against Iran.
The only sanctions that might conceivably have any effect would be a boycott of Iranian oil. No one is even talking about that, because no one can bear the thought of the oil shock that would follow, taking 4.2 million barrels a day off the market, from a total output of about 84 million barrels.
In terms of a possible military action, he sneers at Europe:
Which is one of the reasons the Europeans are so mortified by the very thought of a military strike against Iran's nuclear facilities. The problem is not just that they are spread out and hardened, making them difficult to find and to damage sufficiently to seriously set back Iran's program.

The problem that mortifies the Europeans is what Iran might do after such an attack -- not just cut off its oil exports but shut down the Strait of Hormuz by firing missiles at tankers or scuttling its vessels to make the strait impassable. It would require an international armada led by the United States to break such a blockade.
Well, we would be there attacking Iran anyway, so... no big deal?
Such consequences -- serious economic disruption and possible naval action -- are something a cocooned, aging, post-historic Europe cannot even contemplate. Which is why the Europeans have had their heads in the sand for two years.
That's right, Chucky. The Europeans have had their heads in the sand, while the U.S. has been working overtime to develop an energy policy which prevents our being held hostage by the oil supply in the Middle East, and has been working on both military and diplomatic efforts which will prevent Iran from ever becoming a nuclear power? Oh... you accidentally forgot to mention that we haven't? Hm... In that case, does the place we have our head even smell as nice as sand? (It isn't like the inevitable failure of diplomacy with Iran over its nuclear program has been a big secret, or hard to predict.)

Monday, January 16, 2006

Invading Iran

With the increasing buzz over invading Iraq, it is good to see that at least one proponent of invasion understands the choices - and cost. Although outlining four alternatives ("head in the sand", stronger diplomacy, attack by Israel, or attack by the United States), NRO's Victor David Hanson is quite obviously a proponent of U.S. attack, a short-term war without occupation.
The fourth scenario is as increasingly dreaded as it is apparently inevitable — a U.S. air strike. Most hope that it can be delayed, since its one virtue — the elimination of the Iranian nuclear threat — must ipso facto outweigh the multifaceted disadvantages.

The Shiite allies in Iraq might go ballistic and start up a second front as in 2004. Muslim countries, the primary beneficiaries of a disarmed Iran, would still protest loudly that some of their territories, if only for purposes of intelligence and post-operative surveillance, were used in the strike. After Iraq, a hit on Iran would confirm to the Middle East Street a disturbing picture of American preemptory wars against Islamic nations.

Experts warn that we are not talking about a Clintonian one-day cruise-missile hit, or even something akin to General Zinni’s 1998 extended Operation Desert Fox campaign. Rather, the challenges call for something far more sustained and comprehensive — perhaps a week or two of bombing at every imaginable facility, many of them hidden in suburbs or populated areas. Commando raids might need to augment air sorties, especially for mountain redoubts deep in solid rock.

* * *

Economically, we should factor in the real possibility that Iranian oil might be off the global market, and prepare — we have been here before with the Iranian embargo of 1979 — for colossal gasoline price hikes. This should also be a reminder that Ahmadinejad, Saddam, Hugo Chavez, and an ascendant and increasingly undemocratic Putin all had in common both petrodollar largess and desperate Western, Chinese, and Indian importers willing to overlook almost anything to slake their thirst. Unless we develop an energy policy that collapses the global oil price, for the next half-century expect every few years something far creepier than the Saudi Royals and Col. Moammar Gadhafi to threaten the world order.
Although Hanson argues that these choices leave us "holding and circling while waiting for a break in the clouds, he asserts,
Still, there are two parameters we should accept — namely, that Iran should not be allowed to arm its existing missiles with nukes and that Israel should not have to do the dirty work of taking out Iran’s nuclear infrastructure.
In other words, he's ruling out maintaining the status quo, all-but-ruling-out diplomacy (which he understandably views in skeptical terms) and ruling out an attack by Israel....

It is interesting, though, that Hanson omits the fifth possibility - a full-scale invasion and occupation of Iran. Were we not in Iraq, he certainly would have raised that possibility. As we are in Iraq, he doesn't raise it presumably because he knows it is not realistic under our present circumstances. Which might mean that, instead of taking potshots at Democrats, he might have had to close by questioning whether the Bush Administration's choice to go to war in Iraq left us in a position where we are unable to reasonably respond to the Iranian nuclear threat.

If Bush follows this proposal, invading Iran only to the extent necessary to eliminate its nuclear program but leaving its theocracy in place, perhaps Jenna can eventually run for President with an implied promise to "finish the job".

Poorly Chosen Headline

Over at Slate, William Saletan addresses the subject of alleged bias in the sentencing of female sex offenders under the headline, "Teachers' Pets? Are teachers who sleep with boys getting off?". The gist of his piece is "no".... which only serves to add to the number of bad jokes that ran through my mind when I read that headline.

Environmental Good Intentions

There appears to be new interest in the demise of frogs and toads around the world, centering upon the theory that climate change has contributed to the spread of a deadly fungal skin infection. Several articles I have read mention one of the most famous extinctions, that of the golden toads which once appeared in large numbers in the Monteverde cloud forest in Costa Rica.

When I was in Costa Rica a couple of years ago, I stayed at a bed and breakfast owned by a family whose ranch had been purchased and incorporated into the nature preserve at Monteverde. Their son described how one year the toads had appeared in their usual number, and the next year they were gone. He stated that this coincided with some work performed within the toad's breeding area. He left the firm impression that the most likely cause of that toad's extinction was not global warming or a spreading fungus, but instead was the result of changes made to their breeding area. It is safe to assume that any such changes would have been made with the best of intentions, but perhaps with the worst of consequences.

It's not that disease isn't an issue, or that global warming cannot be part of the equation. But we're not speaking here of a gradual disappearance - it was a sudden extinction, associated with a cessation of breeding:
In 1987, the golden toad was closely studied by an American ecologist and herpetologist who, by chance, happened upon its breeding spectacle. She described it as brief and breathtaking; the males looked like "little jewels on the forest floor." She was so fascinated that she applied for a grant to return and study the toads.

In 1988, no toads appeared when the seasonal rains started. During several months of searching the Monteverde forest, scientists found only ten golden toads, and none were breeding. In 1989, only one lonely toad was found where once there were hundreds. Despite much searching, not a single golden toad has been seen since then.
Although that article discounts habitat destruction as a cause of the extinction,
Habitat destruction does not explain the disappearance of the Monteverde golden toad, however. The high-elevation rain forest where it lived is a relatively pristine area, protected as a national reserve since the 1970s.
You don't have to do all that much traveling in the developing world to find examples of architecture, natural resources, or other attractions being damaged or destroyed in the course of well-meaning preservation efforts. (And you probably wouldn't have to look very hard to find similar mistakes in the developed world.)

I do not mean to diminish the significance of climate change to animal populations, particularly in an environment such as a cloud forest, and I certainly don't mean to diminish the importance of conservation efforts. It's more that I think that in many contexts we need to recall that the road to hell can be paved with good intentions.

Thursday, January 12, 2006

Men's Rights And Abortion

A few days ago, behind the New York Times firewall, John Tierney brought us his thoughts on the question of men's rights and abortion. This issue has come up quite a bit lately - perhaps it is growing traction. But I am astonished by the noodle-brained nonsense that passes for analysis, Tierney's piece being no exception. While presenting his thoughts within the context of Alito, he focuses on obstacles to those who question spousal notification laws:
The first is public opinion. Most Americans tell pollsters that they think a husband should be notified before an abortion, and the Pennsylvania law that Alito approved was hardly a draconian version of that principle. It merely required a woman to say, without presenting any proof, that she'd told her husband. If she said she feared physical abuse, she was exempted.
Assuming that is not an endorsement of government by opinion poll, it is worth noting that it should not be at all surprising that most people believe that a wife should tell her husband that she plans to have an abortion. It is also worth noting that the factoid presented does not also contend that a majority of Americans believe that she should be compelled to do so as a matter of law - and any such notion should be patently offensive to any small government conservative, let alone a libertarian.

Is it safe to assume that in a strong relationship, such issues will be discussed and the decision made by a married couple in concert? If not, we have much bigger issues to worry about in regard to the state of our nation's marriages than spousal notification laws. If so, this law only applies in the context of weak marriages which might be harmed or destroyed by spousal notification. In light of that, even with an exception for "fear of physical abuse", is this provision really about the sharing of information, or is it really about effecting the maximum possible coercion upon a woman who may fear being bullied, intimidated, or deserted based upon her choice?
The second obstacle is the logic of feminism. Spousal notification has been denounced as retrograde by the same advocates who have been demanding gender equality in the workplace and at home. If men are expected to be parents with equal responsibilities, shouldn't they at least be allowed to discuss whether to have a child?
Tierney appears to be suggesting that a pregnant woman and the father have an equal burden in regard to pregnancy. Hey - if Tierney can come up with a fetal transfer technique which transplants the fetus from the pregnant woman into the father, I'm with him all the way. But barring that, surely he can see at least a slight difference?

Last I checked, men are allowed to discuss whether or not they want to have a child. They are free to do so with any of their prospective sexual partners. If they decide that their philosophies are too different, or even suspect that their philosophies are so much as slightly different, they can pass on the encounter. Last I checked, married couples frequently discussed their plans to have (or not to have) a family, and what size it should be.
If the pro-choice side adopted a gender-neutral policy, then either the man or the woman would have the right to say no to parenthood. I don't know of anyone advocating that a woman be required to have an abortion, but there's another right that could be given to a man who impregnates a woman who isn't his wife. If the woman decided to go ahead and have the child, she would have to notify him and give him the option early in the pregnancy of absolving himself of any financial responsibility for the child.
Okay... so Tierney isn't going to let a man force a woman to have an abortion. But he is sympathetic to the notion of letting any man disclaim financial responsibility following pregnancy, thereby saddling the woman (and the state) with the cost of raising the child? Has he given this idea even the slightest amount of thought? Because I can think of many married couples where there is an imbalance of power in the relationship, where the husband would take this option knowing full well that his wife would have the child - creating a situation where she would be left destitute if she tried to leave him, but he could walk away at any time without financial consequence. What a wonderful world that would be. And I think it would be extremely common for single men to opt out of supporting their offspring. (And what if a fourth month ultrasound or seventh month amniocentesis showed a developmental disorder which would make child-rearing more difficult and expensive? Can dad still opt out?)

Oh, but don't you go accusing Tierney of being a sexist idiot, because he has proof he's not sexist - he can quote a self-proclaimed feminist:
This option to have a "financial abortion" has been advocated by a few iconoclasts - not all of them men with child-support payments. The term was coined by Frances Goldscheider, a professor of sociology at Brown University who studies family issues. She compares the current campaign against "deadbeat dads" to the punishments once given to "wayward women" for having illegitimate children.

"It used to be our daughters we worried about being forced into inappropriate parenthood, but now it must be our sons," she says. "Men should not be made to become fathers against their will. They should have the right Planned Parenthood has claimed for women: 'Every child a wanted child.'"
So to make sure that every child is a wanted child, we'll create a society with far more fatherless children (or far more abortions - it has to be one or the other). And to punish "wayward women", even if they are virgins to the point of the single encounter which leaves them pregnant, we free men up to be as sexually reckless and promiscuous as they want. What a wonderful world that would be....

Tierney even tries to distance himself from any accusation of sexism, quoting the same woman:
There is, of course, one big physical inequality between the sexes in this regard: it's the woman who must either have the abortion or go through the pregnancy.

But as Goldscheider points out, women also have more power than men to prevent the pregnancy because they have exclusive control over some forms of contraception. It's not fair, she says, for a woman who lies about being on the pill to be able to trick a man into marrying her or making child-support payments for 18 years.
The first easy response is that barrier methods are pretty darn visible, and remain available to men. The second easy response is that if you're in a situation where you believe a woman may be lying to you to "trap" you into impregnating her, you had darn well better either use a barrier method or forego the encounter. Besides, no birth control method is 100% effective - any man who doesn't want to take a chance on becoming a father is well-served to employ a back-up method. (Does Tierney suffer a "whore-madonna complex"? Does he really split the world into good women who don't have sex until they are married, and evil harpies who are out to trap men into marriage or the payment of child support? It sure seems so.)

In the end, Tierney decides against this proposal - not because of its absurd unfairness, but because it might end up hitting him in the pocketbook. But to be fair to men who have to pay child support, he's willing to impose the burden of spousal notification on women whose husbands might otherwise be excused of that burden.

Evil Racist Liberals are "Losing the Alitos"?

I came across a quote from David "Babbling" Brooks today, in which he suggests that Alito might have been a liberal, but for immigrant-bashing by Democrats....
If he'd been born a little earlier, Sam Alito would probably have been a Democrat. In the 1950's, the middle-class and lower-middle-class whites in places like Trenton, where Alito grew up, were the heart and soul of the Democratic Party.

But by the late 1960's, cultural politics replaced New Deal politics, and liberal Democrats did their best to repel Northern white ethnic voters. Big-city liberals launched crusades against police brutality, portraying working-class cops as thuggish storm troopers for the establishment. In the media, educated liberals portrayed urban ethnics as uncultured, uneducated Archie Bunkers.

The liberals were doves; the ethnics were hawks. The liberals had "Question Authority" bumper stickers; the ethnics had been taught in school to respect authority. The liberals thought an unjust society caused poverty; the ethnics believed in working their way out of poverty.
Brooks has always had a penchant for simply "making stuff up" when he has no facts... and this is no exception. Perhaps he never got past watching "All in the Family" reruns when analyzing depictions of racism on television... but if he had watched a bit closer he might have recognized that while Archie was depicted as a bigot Edith was not, and between them they managed to produce a liberal child. That is, this depiction (which did not come from "big city liberals", but came from a capitalist broadcasting corporation seeking profits) was not one-sided.

Last I checked there were a few racists in the blue collar ranks of northern cities (along with all other societal ranks - racism knows no class or ethnic barrier). Not that he's at all representative, but I think the hard-working, northern "white ethnic" John Demjanjuk was probably a Republican even before he heard of Archie Bunker. And I don't think that the guys who killed Vincent Chin were demonstrating "blowback" agaist liberal television programming. I am reminded of a former co-worker of "northern white ethnic" extraction, who bragged of his family's relocation from Brooklyn to Bensonhurst when the "Moulies" moved in - while discussing the murder of Yusuf Hawkins. I am also not clear on how one would address the thuggery of such programs as the Detroit Police Department's STRESS program without noting that its activities targeted blacks with particularly brutal results, or observing that at the time the Detroit Police Department was 90% white. Also, if Brooks' theory had any validity one would think that you would see the urban north switching from blue to red. Um....

And what does this say of Alito, or at least Brooks' assessment of Alito? That he's such a shallow thinker that a few episodes of "All in the Family", and a (hypothetical) distant cousin's lament about the effects of integration in an urban police department would justify his transformation into a life-long enemy of progressive politics, and an enemy of integration and sexual equality? Isn't that the same type of ugly caricature that Brooks is accusing "liberals" of creating? I am sure that Alito can come up with a much less simple-minded and reactionary explanation for his beliefs, even if Brooks cannot.

And what of Brooks' distinction between "white ethnics" and other ethnics in the northern cities? Gee... if only those northern white liberals and non-white ethnics shared such notions as personal responsibilty and work ethic... why, maybe then New Jersey would again be a "blue state".

Sunday, January 08, 2006

Slow-Dancing With The Devil

(Apologies in advance to the ever-beleagured insurance industry for that allusion.)

Over at Evan Schaeffer's Illinois Trial Practice Weblog (which is a good read for litigators from any state) a lawyer complains of the difficulties faced by defense firms in automobile negligence cases:
"Lets face it: we are battling big firms with unlimited budgets who have access to millions of forms and prior research."

Perhaps you are thinking of a different practice area. Or making excuses for yourself in advance. But that certainly isn't true of auto torts. It would be foolish to have an "unlimited budget" for a low-impact soft-tissue injury case. Insurance companies make money by being stingy, not by being foolish. And their stingingess extends to the hired help (i.e. defense attorneys), not just claimants. Why do we put up with it? Volume. And stability. (Perhaps David should ask some insurance companies to share their fee negotiating tips).
Now I know that insurance companies are good at negotiating down legal fees and hourly rates, then again negotiating down any bills submitted which they deem excessive. But it is also fair to say that when a defense firm signs on to defend a typical automobile negligence case, the firm knows the following:
  • The case is likely to settle;

  • The facts are usually not so complicated that the ultimate settlement figure cannot be estimated with a very high degree of accuracy before litigation is filed, or shortly after its commencement;

  • If the case has sufficient merit to survive summary disposition, little that the defense firm does will affect its pre-trial settlement value.

So in the average case the defense firm steps in, engaged in the obligatory shuffle of papers, exchange of discovery, depositions, mediation, etc., and at the end of the day adds little to the insurance company's bottom line beyond increasing the cost of the plaintiff's case and delaying the ultimate settlement of the case. (Occasionally a plaintiff's lawyer will make a fatal mistake resulting in the dismissal of an otherwise meritorious lawsuit, but that's more serendipitous for the defense firm than a product of its hard work. Occasionally, also, the delay may inspire a plaintiff to accept an inadequate offer in order to resolve post-accident economic hardships; again, unless delay is of itself considered to be a mark of quality defense work, not something that is attributable to the quality of the defense.)
"This will help prevent the large gaps in treatment, missed appointments, no-shows and the failure to be properly discharged. If you, or a staff member, is monitoring their physical therapy appointments, MRI appointments, etc., you are less likely to be faced with large gaps in treatment and no-shows on doctors' visits."

Yes, heaven forbid the mild nature of your client's injuries be revealed by the failure to get treatment. Treatment. Treatment. Treatment. Whether you need it or not. Everybody loves a trip to the chiropractor! While you're there, have him run some of those $500 tests that don't seem to effect the treatment but sure help the value of your case.
Certainly some plaintiffs in personal injury litigation end up getting medical care that they don't really need, in the name of building and maintaining a case. Heaven forbid that the failure to seek treatment for bona fide, serious, chronic injuries might inspire a defense argument that the injuries are minimal or that recovery is complete. Many can't get the treatment they need due to insurance issues, without so much as a crocodile tear from the defense. And let's not forget to send the most severely injured plaintiff to an IME doctor or three. Or five. Maybe to doctors who have a tacit understanding that they will downplay the plaintiff's symptoms, or fail to find any medical basis for the symptoms, or fail to find any connection between symptoms and injuries suffered in the accident, whatever the medical reality.
I don't mean to be overly snide, but there are a few elements of that site that are more excellent tips for creating the appearance of a valid claim than tips for actually dealing with a valid claim. I'm not suggesting that the plaintiff's bar is solely responsible for this state of affairs (settlement offers being determined by multiples of specials). I'm just slightly amused by the somewhat shameless fashion in which it was presented.
Right back at you. This goes for lawyers on both sides: if you think the other side is compensated at an unreasonably high rate, or has work that is so much easier than yours, switch sides.

Personally, I don't think any significant progress will be made in improving and streamlining the system to avoid unnecessary litigation and reduce delay until insurance companies decide that such reforms are in their best interest. Which, speaking of the devil, will apparently happen when hell freezes over.

Peaceable Assembly In Scotland?

According to Jan Witold Baran, "a lawyer and former general counsel of the Republican National Committee",
There is irony here. The same constitutional provision that ensures the press may proclaim a lobbyist's guilty plea also protects the act of lobbying. The First Amendment is well-known for guaranteeing freedom of speech, freedom of press, freedom of assembly and freedom of religion. Often overlooked in its litany of fundamental civil liberties is the right "to petition the Government for a redress of grievances." It is this distinct clause that prevents Congress and the president from enacting a law that bans lobbying. It is a right that should not be taken lightly and that should not be eroded by the fraudulent acts of a single lobbyist.
You have to love these Republican strict constructionists, with their slavish devotion to original intent.
Congress shall make no law ... abridging ... the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
I'm sure the Founding Fathers had Abramoff-style golf outings to St. Andrews in mind when they thought of a peaceful assembly to petition for the redress of grievances. Aren't you? (Or did they have such trips in mind, but to less expensive venues to be better in keeping with the loosely enforced rules limiting the size of gifts to House members?)

Or is this yet another of those areas where originalism and textualism must quietly cede to modernity. It is somehow good in this context that the Supreme Court takes a much broader view of what constitutes protected conduct under the First Amendment than either original intent or the plain language of the Constitution would permit, so we'll turn a blind eye?

I'm approaching Mr. Baran's argument as if he takes the party line on constitutional interpretation, which may be unfair to him. But I don't hear the leaders of the Republican Party lamenting the liberal Supreme Court whose expansionist interpretations of plain language forced them to accept gifts and contributions from the likes of Abramoff.
There may be others who bend the rules, but Abramoff retired the cup for outrageous conduct in the name of lobbying.
There may be others who bend the rules? Oh, I think we can safely say that there are others.

Saturday, January 07, 2006

Judicious Application of a Trial Tax

The Michigan Supreme Court, in a split decision, reversed a trial court's rather explicit imposition of a "trial tax" when sentencing a defendant who chose not to plead guilty:
We do not quarrel with the Court of Appeals finding that this crime was extremely brutal. However, the sentencing judge stated that she did not believe that defendant was entitled to the same sentence as his accomplices, “who were able to step up to the plate and say what they did and to admit their guilt,” while defendant subjected the victims to “having to testify.” A sentencing court, cannot, in whole, or in part, base its sentence on a defendant’s refusal to admit guilt. People v Wesley, 428 Mich 708, 711 (1987); People v Yennoir, 399 Mich 892 (1977). Nor can a defendant be punished for exercising his right to trial. United States v Jackson, 390 US 570; 88 S Ct 1209; 20 L Ed 2d 138 (1968); People v Courts, 401 Mich 57 (1977).

The sentencing court also commented on the “excessive brutality, violence, and terrorism” to which the victims were subjected. But the 50-point score defendant received on Offense Variable 7 already accounted for these circumstances. A sentencing court may base a departure on a characteristic already taken into account by the sentencing guidelines only if the court finds that the characteristic was given inadequate or disproportionate weight.
I think Justice Corrigan, concurring in part and dissenting in part, hopes to educate the trial judge on how to properly engage in upward departure from the Michigan sentencing guidelines on remand. But then, it was a particularly nasty crime.

Ethics, By The Book

Tom DeLay, defending his years of finding ways he believed to be legal to, well, allow people to purchase influence in Washington, asserts,
During my time in Congress, I have always acted in an ethical manner within the rules of our body and the laws of our land. I am fully confident time will bear this out.
Doesn't it give you a warm, fuzzy feeling that Tom DeLay has no sense of ethics other than those which are explicitly imposed upon him by committee rules or legislation? If it's not clearly codified as unethical or if you can find wiggle room in the language of the rule or statute, it must be ethical. Right?

Friday, January 06, 2006

Are You Considering A Career In... Mining

As in, underground. Not as in "Data Mining".

According to Fox News, "Mine Tragedy Could Hurt Recruiting Efforts". You think?

Perhaps the mining industry can fight back by sponsoring a remake of "How Green Was My Valley". (How many movies involving coal mines don't involve both a "coming of age" crisis, with either the father dismayed at the thought of the son joining him in the mine or dismayed at the thought that he might not, and a cave-in?)

Thursday, January 05, 2006

Is The Issue Really "Plausible Deniability"

Over at his conspiracy, Professor Eugene Volokh provides an extensive defense of Judge Alito's decision on spousal notification. But what's the goal? If the goal is to convince me that even though every single word, opinion, or other evidence produced to date on Alito's position on abortion rights places him squarely in the "Pro-Life/Anti-Roe" camp, it's a failure. If the effort is to argue that there's enough nuance in Alito's various opinions, statements, and expressions on the issue that you could plausibly argue that he isn't definitively "Pro-Life/Anti-Roe", well... yes, through a sufficiently zealous use of sleight of hand and weasel words, I suppose that case can be made. But personally, I think we should admit the obvious and move forward from there.

And if Professor Volokh really is parsing Alito's positions this finely even though he doesn't actually take a (public) position on the abortion debate... why? If he doesn't believe that Alito's position on abortion should be relevant to his nomination, isn't that the better argument to advance? Because I don't find very compelling the notion that if we interject enough nuance into a history of statements and opinions that isn't very nuanced, we remove the issue from the table.

[Edited to correct error/omission resulting from a clumsy addition of a link.]

Wednesday, January 04, 2006

A Google PC? Maybe Not....

Google PR Rep David Krane, while slightly qualifying his denial, indicates that Google will leave the hardware market to its partners.
Our response (you'll see this in related articles shortly): we have a number of PC partners who serve their markets exceedingly well and we see no need to enter this market; we would rather partner with great companies.

Tuesday, January 03, 2006

Google Entering the Hardware Market

Rumors swirl.
Speculation is mounting that Page will use a keynote speech at the Consumer Electronics Show in Las Vegas on Friday to unveil details of a low-cost computer or internet-enabled device that will run on a new operating system developed by Google.

Because the device - similar in concept to the Mac Mini unveiled last year by Apple's Steve Jobs - doesn't use Microsoft's Windows, it could cost as little as $200.
The article questions how Google would make money off of the devices, suggesting the possibility that Google will serve ads. In my estimate, it won't. If this is true, my guess is that it would presently be about expanding the reach of gmail, Google Desktop, and Google Instant Messanger, keeping users loyal to Google Search, and getting its foot in the door as an Application Service Provider... for its own products and those of others.

In a sense, Google is already a massive Application Service Provider. Google's search engine, for example, runs on their computer, not yours. As does gmail. Much of the action behind their instant messaging service runs on their servers. Add, test, and perfect an office suite for the benefit of users of the new Google computer, run a decent browser on the cheap computer, and they'll save each buyer of their machine several hundred dollars in software costs while providing at least as much functionality (and knowing Google, quite possibly more) than they would get on a low-end Windows machine with Microsoft Works.

(I'm having a bit of trouble with the text, and it's been circulating for a few months... but this appears to be a set of screen shots of how a Google computer might appear in operation.)