Reliance On Lawsuits

A few months ago, David von Drehle wrote a piece in the Washington Post, raising some good points about the tendency of certain factions on the political left to rely upon litigation to achieve what they cannot necessarily accomplish at the ballot box.

Half a century after the triumph of Brown v. Board of Education, the landmark desegregation case, reliance on constitutional lawsuits to achieve policy goals has become a wasting addiction among American progressives. The recent battle over gay marriage, in courts and at the ballot box, demonstrates that liberals today are more adept at persuading like-minded judges than they are at persuading undecided voters. Over the past 40 years, while progressives were winning dozens of controversial court cases on issues ranging from abortion to school prayer, the Democratic Party failed nine times out of 10 to win a majority of the votes for president.

Today, being right on top of things, in the National Review Online, Neil Gorsuch takes note of von Drehle's column:

There's no doubt that constitutional lawsuits have secured critical civil-right victories, with the desegregation cases culminating in Brown v. Board of Education topping the list. But rather than use the judiciary for extraordinary cases, von Drehle recognizes that American liberals have become addicted to the courtroom, relying on judges and lawyers rather than elected leaders and the ballot box, as the primary means of effecting their social agenda on everything from gay marriage to assisted suicide to the use of vouchers for private-school education.

Of course, there is a counter-point in relation to groups such as the ACLU, who use litigation not to win popularity contests, and certainly don't hesitate to litigate issues where popular opinion is against their client (many of the ACLU's members, for example, opposed the right of the KKK to march through Skokie, Illinois, and many resigned their memberships over its choice of client), but because there is literally no other means of protecting those constitutional interests. And not even the NRO is willing to attack liberals and progressives for advancing the civil rights movement through litigation - although their ideological peers at the time were not so taciturn on the issue.

But the more interesting aspect of this, at least from where I stand, is the complete absense of any mention of the use of litigation by the political right to advance its own agenda. The army of lawyers, for example, the Republicans had stationed across the country on November 2, ready to scurry into court to litigation election issues. Which, of course, would have been a repeat of the lawsuit filed in the name of George W. Bush, to stop Florida's courts from applying their own interpretation of their own constitution and election law to an election recount. But the better examples probably come in "property rights" cases, where the right has used litigation to chisel away at state and local zoning ordinances, environmental protections, and land use regulation. Or the near-invisible litigation that chisels away at the rights and protections of individuals, often in the name of "originalism" or "strict construction" of a statute, to effect changes in the law that a Republican legislature would be loathe to present as an election issue.

I personally believe both the political right and left should spend less time going to court, a lot less time trying to mislead the public or misrepresent the other side's agenda, and that their political representatives should spend a lot less time getting their palms greased by lobbyists. But... what are the odds?

Unintelligent Design?

In today's Times, Michael Behe, a leading proponent of "intelligent design" was given the opportunity to beg the question of the theological aspects of his theories. What I mean by that is that, while the author proposes a designer, he also pretends that his theory is separate from theology... presumably because he provides no information about the "designer" and does not speculate as to who the "designer" might (or might not) be. Beyond that rather patent omission, the author asserts, "Rather, the contemporary argument for intelligent design is based on physical evidence and a straightforward application of logic." Or, more accurately, not. Starting at the beginning:

The first claim is uncontroversial: we can often recognize the effects of design in nature. For example, unintelligent physical forces like plate tectonics and erosion seem quite sufficient to account for the origin of the Rocky Mountains. Yet they are not enough to explain Mount Rushmore.

Of course, we know who is responsible for Mount Rushmore, but even someone who had never heard of the monument could recognize it as designed.

Except this theory is neither new, nor is it compelling. It was, what, some eight centuries ago that philosophers suggested that order in the universe evidenced the existence of a God? The difference between "now" and "then" is that the larger forces of nature which create the apparent order in the universe are accepted by Behe and are acknowledged as "unintelligent physical forces". Yet this is a distinction without a difference - Behe is repeating the error of observing something that appears ordered and designed and, because he does not know (and refuses to acknowledge) "unintelligent physical forces" which could account for the same phenomenon, assuming intelligent design.

Which leads to the second claim of the intelligent design argument: the physical marks of design are visible in aspects of biology. This is uncontroversial, too. The 18th-century clergyman William Paley likened living things to a watch, arguing that the workings of both point to intelligent design. Modern Darwinists disagree with Paley that the perceived design is real, but they do agree that life overwhelms us with the appearance of design.

That's not really a second claim, so much as a variant of the first. It has a simplistic appeal - if something looks like it might have been designed, it is reasonable to assume a designer. But, as Behe himself suggests in asserting "unintelligent physical forces"as the force behind what philosophers once viewed as evidence of "design", this claim begs the question.

The next claim in the argument for design is that we have no good explanation for the foundation of life that doesn't involve intelligence. Here is where thoughtful people part company. Darwinists assert that their theory can explain the appearance of design in life as the result of random mutation and natural selection acting over immense stretches of time. Some scientists, however, think the Darwinists' confidence is unjustified. They note that although natural selection can explain some aspects of biology, there are no research studies indicating that Darwinian processes can make molecular machines of the complexity we find in the cell.

Scientists skeptical of Darwinian claims include many who have no truck with ideas of intelligent design, like those who advocate an idea called complexity theory, which envisions life self-organizing in roughly the same way that a hurricane does, and ones who think organisms in some sense can design themselves.

Here, again, there is nothing that lends support to "intelligent design". If one were to assert, "Many scientists believe the Earth is flat. I think it is shaped like a cube. As there are many scientists who disagree with the 'Flat Earth' theory, including some who think it is hexagonal and some who believe it is a dodecahedron, my theory is valid," the illogic would be patent. (I don't mean to belittle the two alternative theories Behe mentions - my analogy is to his effort to, through simplistic presentation, implicitly suggest that his own speculations are at least equal.)

Beyond the illogic, it also is not correct from a scientific perspective. There is extensive scientific analysis - which, unlike "intelligent design", has passed peer review - which presents observations and theories of evolution at the subcellular level. It is possible that Behe does not understand that body of science, or that he disagrees with the concusions of the scientists behind it, but it is fundamentally dishonest for him to pretend that it does not exist. The fact that Darwinism itself has evolved from its rawest, 19th Century form is no surprise. But subsequent additional scientific research, knowledge, and theories do not mean that "anything goes" or "my speculation is equal to (or better than) their science".

The fourth claim in the design argument is also controversial: in the absence of any convincing non-design explanation, we are justified in thinking that real intelligent design was involved in life. To evaluate this claim, it's important to keep in mind that it is the profound appearance of design in life that everyone is laboring to explain, not the appearance of natural selection or the appearance of self-organization.

A circular and self-serving argument: If I don't find other theories more compelling than my own, I should not only be able to adhere to my opinion but should be able to advance it as equal or superior to its "competitors". And, at its core, this isn't really different from the earlier points that, if something looks like it was designed (like the "face" some used to imagine on the surface of Mars) then it is reasonable to assume that it was designed. However Behe rationalizes the manner in which he puts these four "claims" together, he's remarkable in his circularity.

But it seems to me that the principle failing of Behe's theory is one he chooses not to address: His refusal to identify the designer, or to apply his own "claims" to the notion of an intelligent designer. Why? Presumably because he knows that the concept of God that is embraced by most of those who purchase his book falls apart when his four "claims" are applied to its existence. After all, if God is an all-seeing, all-knowing, all-powerful being, capable of simultaneously being everywhere and anywhere, and credited with knowledge of the smallest act of man, and with designing life and matter right down to the subatomic level, God is the most complex being ever conceived. Why isn't Behe demanding that theologians explain, "Who designed God"?

Defamation

While the United States has defamation laws which make it very difficult to hold a media company liable for publishing false information about a public figure, many European nations do not. The Wall Street Journal, faced with that reality in England, has been working to create a "public interest" exception to British libel laws, under which "newspapers could print untrue and defamatory information if they could prove it was in the public interest and was the product of responsible journalism.". The Journal's lawyer described the situation:

"There is a flaw in the qualified privilege defence that is highlighted where you have five anonymous sources that cannot come to court. It is obviously a major concern for people who want to see a free flow of information."

This creates an interesting tension between "protecting an anonymous source" and avoiding liability. While there is certainly something to the argument that there is a "chilling effect" if you make a newspaper reveal its anonymous sources in order to defeat a libel action, there is also something to the argument that if a newspaper chooses to premise a story entirely upon anonymous sources who will refuse to come forward if the story proves false, the newspaper should be willing to accept the consequence of that decision. A cost of doing business (in that manner).

Health Insurance

Quite a bit of attention is being paid to what was something of an open secret:

Illness and medical bills contributed to roughly half the personal bankruptcy filings in 2001, affecting as many as 2.2 million Americans, a new Harvard study says.

More than 75 percent of the filers had insurance, but many of them lost coverage during their illness, the research showed.

There are some easy solutions to this, at least in relation to people who are initially insured, including requiring that health insurance carriers build into their premiums a form of 'disability coverage' which will satisfy a worker's health insurance premium while the worker is disabled due to illness. But a little bit of honesty would be nice for a change - the biggest reason this is an issue is not because insuring every American would be too expensive, but because, for insurance companies and the politicians they own, rent, or lease, the present system is too profitable. (The richest nation in the world "can't afford" national health care, while many poor nations can and do? Yeah, right.)

The Scheduling of Change (And the "Raw Deal")

I have previously observed the tendency of the Bush II Administration (which is far from unique in this respect) to put off major policy initiatives until "after the next election". Be that putting off the Medicare Prescription Plan until 2005, with parts not to be implemented until 2010, or his promises of a Palestinian state by 2005. Putting things off into the future provides the dual benefit that the President doesn't have to accept any responsibility for the pain caused by his policies, particularly when they turn out to be bad, and if he (or his party) walks away from the policy... well, memories are short, right?

So it should come as no surprise that, even if Bush's plans for the privateering of Social Security are passed,

In a nod to lawmakers worried about the budget deficit, the White House will also hold down the initial cost of the Social Security plan by phasing it in over three years, beginning in 2009. The administration official said funding the individual accounts would cost $754 billion through 2015. But because of the phase-in, the personal-accounts system would not be fully effective until 2011.

There's nothing like a crisis of such urgency that... any policy change can be put off until after the next Presidential election. (Bush may not be running in 2008, but his party obviously doesn't want this dog nipping his successor candidate's heels.)

Oh - and your privateered Social Security Account? You would not be able to invest "your money" in the manner of your choosing - "The federal government would administer accounts." You know, because Bush "trusts you" with everything (except the facts and your money). And his promise that the privateering would enable you to leave "your money" to your children was also, apparently, false, given that "Participants would be required to buy annuities to ensure steady payments out of the accounts over a lifetime." (If you are paid out "over a lifetime", whatever that lifetime is, any ostensibly residual value of an annuity is typically lost at the end of that "lifetime", be it thirty years or thirty days.) Oh yes - and even with those qualifications it isn't really "your money" after all - because the government will loot "your account" to subsidize the Social Security program as a whole.

If a worker sets aside $1,000 a year for 40 years, and earns 4 percent annually on investments, the account would grow to $99,800 in today's dollars, but the government would keep $78,700 -- or about 80 percent of the account. The remainder, $21,100, would be the worker's.

If implementing Social Security was part of "The New Deal", perhaps this should be dubbed (dubyad?) "The Raw Deal".

Fighting SPAM

The New York Times has noticed that SPAM is a problem, even though we have federal legislation telling direct marketers that they CAN-SPAM. The article notes the opinion of some that:

"Can Spam legalized spamming itself," said Steve Linford, the founder of the Spamhaus Project, a London organization that is one of the leading groups intent on eliminating junk e-mail. And in making spam legal, he said, the new rules also invited flouting by those intent on being outlaws.

The article spends a lot of time describing how various players in the anti-SPAM game are wringing their hands, and suggesting that the problem is futile.

"The more effective the filtering technology," Ms. Mitchell said, "the more spam they have to send to get the same dollar rate of return."

Those rates of return can be staggeringly high (and the costs of entry into the market relatively low).

A spammer can often expect to receive anywhere from a 25 percent to a 50 percent commission on any sales of a product that result from a spam campaign, according to a calculus developed by Richi Jennings, an Internet security analyst with Ferris Research, a technology industry consulting firm.

Even if only 2,000 of 200 million recipients of a spam campaign - a single day's response rate for some spammers - actually go to a merchant's Web site to purchase a $50 bottle of an herbal supplement, a spammer working at a 25 percent commission will take in $25,000. If a spammer makes use of anonymous virus-enslaved computers to spread the campaign, expenses like bandwidth payments to Internet service providers are low - as is the likelihood of anyone's tracking down who pushed the "send" button.

Okay, so here's an idea which I would have though would be obvious: the commissions don't come from the ether, so if you can't go after the spammer go after the commission. The "spam-friendly merchants" described in the article certainly do exist - but even they have nominal "no spamming" rules for their affiliates (even as they roll in the dough from SPAM-generated sales and refuse to acknowledge complaints from victims of their affiliates' spamming). Rather than the impotent status quo:

The new federal law does give prosecutors some leverage to go after the merchants - but it must be proved that they knew, or should have known, that their wares were being fed into the illegal spam chain.

Have an agency such as the FTC maintain a list of IP numbers which, due to a history of bad conduct, cannot be approved for commercial email campaigns. Require vendors to mandate that affiliates register in advance of any email campaign the IP number from which their email campaign will originate, to deny permission to affiliates who want to use a banned IP, and to deny commissions to affiliates who fail to register their email campaigns. Give prosecutors the right to seize commissions payable to those whose affiliate ID's are associated with mass email campaigns which violate the law, and require that the affiliates petition for release of the funds. (I'm not advocating forfeiture, or reversal of the burden of proof - Once the affiliate identifies himself and appears in the U.S. Court, if the prosecutor cannot demonstrate that the affiliate did indeed engage in spamming, the funds should be released upon proper petition, if a prosecutor does not move forward within a specified period of time to demonstrate wrongful conduct. But I suspect that true spammers will be reluctant to identify themselves to a court and to subject themselves to its jurisdiction. And a history of claims of "victimization" should be admissible as evidence, consistent with FRE 404(b).)

If you want to move past SPAM email, require that vendors refuse to grant affilate status to websites hosted at IP numbers associated with spamming activity, and require that they terminate affiliates whose websites move to banned hosts.

Law School

Over at The Volokh Conspiracy, Todd Zywicki has an interesting post on some of the foibles of law school scholarship.

Without rehashing the whole peer review v. non-peer review debate yet again, to my mind one benefit of peer review is that it tends to prevent errors of omission--i.e., completely ignoring a relevant article or argument that is related to the subject under examination. This means that old ideas can be passed off as new--and often, not even intentionally, just unintentionally because of a lack of knowledge of what came before. Of course, the process of graduate school training, including mandatory courses and field exams also goes a long way to insuring that you have a basic grasp of the foundational material. Nothing like that exists in law, that I can see.

Perhaps the problem's a bit deeper.

Perhaps the root of the problem is that law schools transformed themselves from the latter part of an undergraduate education (where you earned your L.L.B., or "Bachelor of Laws") into graduate institutions (where you earn your J.D., or "Juris Doctor") without actually making a significant change to anything but the writing on the diploma. While the evolution of law school makes the teaching of law something quite apart from the role of a professor who never teaches graduate school, and instead exclusively teaches undergraduate classes, a strong argument can be made that something was lost in the manner of transformation of the basic law degree into a graduate degree, and that loss continues to have ramifications in the nature and quality of legal scholarship.

Granted (I cynically add), one could argue that the biggest difference is that a humanities professor at any other elite graduate school has to master his or her field of study before composing an article that will be sufficiently novel to merit publication in a prominent, peer reviewed journal, usually to be read by few, understood by fewer, and of value to (almost?) no one. But, I guess, such is the cost of making the publication of articles a critical element of staying on the tenure track.

Excuse Me?

They say that misery loves company, but in reading Jack Shafer's comment,

Even a stopped clock tells the right time twice a day.

I find myself in the position of having to protest that I am not yet so miserable as to want that company.

Seriously, though, I picked the name of this weblog as a bit of self-parody - no matter how I come across at times, I don't take myself that seriously - but at times like this I feel compelled to point out that a stopped clock is not right twice a day. It is wrong all of the time. The fact that the incorrect information it conveys is, on a recurring basis, consistent with the facts does not change the fact that the information frozen on its face is entirely disconnected from reality. And such is Judith Miller.

Deceptions, Sleights of Hand, and Lies

Okay... So we're going to continue to pretend that Social Security taxes (which, until you have a very substantial income, are based upon a percentage of your income) are not "income taxes". Despite some pre-Bush II complaints by, for example, John McCain, neither major political party seems to object to that little deception.

And we're going to continue to ridicule the notion of the "lock box", Al Gore's all-too-often repeated buzzword for the theoretical mechanism he would have theoretically implemented to keep Congress from looting the theoretical "Social Security Trust Fund" to pay for current budget obligations.

So perhaps that is why Bush-II-style Social Security privateers... er, privatizers... think it will be easy to transition to the unadulterated lie:

[Future Social Security obligations] would have been less daunting had we saved the very substantial Social Security surpluses of the past two decades. Instead, we mostly spent them, particularly in the past four years, leaving behind a much-touted Social Security trust fund that is, in reality, a myth.

All that resides in the trust fund is a $1.5 trillion pile of IOUs from the federal government, obligations likely to be honored by increasing the national debt. In addition, according to the trustees, we would have to deposit an additional $3.7 trillion into the trust fund today to ensure solvency until 2078. Is that a crisis or just a problem?

Is, then, Bush going to go on camera and say "I lied to the American people when I said the rich pay too much income taxes as compared to the working masses, because I said that the Social Security tax was a 'payroll tax' and not an 'income tax'. But because we 'compassionate conservatives' have now blessed the theft of the entire Social Security Trust Fund in the name of fiscal responsibility to pay for obligations which should have been satisfied from the general fund, and have no intention of repaying that money despite the legal mandates that we honor our nation's debts, as it turns out it was an income tax after all - and one that was subject to double and triple taxation. Boy, do I feel the egg on my face. Middle class tax relief is on the way."

A Twist On An Old Joke

There's an old joke, not particularly funny, which asks, "How does a coroner commit malpractice?" The answer, "By bringing his patient back to life." (Nonetheless, while the EMT's may have some exposure, I think Mr. Perdue is safe from litigation.)

"Now We're Just Negotiating The Price"

Now that we all know what type of man Armstrong Williams is, Maggie Gallagher, admitting to having surreptitiously taken $21,500 to hawk the Bush Administration's marriage policies, asks us what type of woman we take her for. Or, more specifically,

"Did I violate journalistic ethics by not disclosing it?" Gallagher said yesterday. "I don't know. You tell me."

Yes, Maggie. Yes, you did.

Her defense, it seems, is that she, um, forgot.

I should have disclosed a government contract, when I later wrote about the Bush marriage initiative. I would have, if I had remembered it. My apologies to my readers.

A $21,500 government contract she forgot? Did she lose track of it, amidst all the other payoffs, or does she consider the amount to be forgettable chump change?

Prosecutorial Excess

Okay... CNN is a bit ambiguous in this first part:

Two boys were arrested for making pencil-and-crayon stick figure drawings depicting a 10-year-old classmate being stabbed and hung, police said.

But we'll proceed on the assumption that they meant "hanged".

While certainly a child's artwork may be indicative of psychological issues (apologies for the pop culture reference), sometimes it just means that the kids were drawing pictures. The report indicates, "The children, charged with a felony, were taken from school in handcuffs." Um... excessive?

As I look back on some of the pictures my classmates were drawing at similar ages... well, let's say that little Colin's daily drawings of military hardware in action probably would have inspired Florida to classify him as a habitual felon.

Today's Post May Be Found At....

As a guest, I have posted some thoughts on Ethics and the Criminal Defense Attorney over at Crime & Federalism.

The Stopped Clock Award Goes To....

David "Babbling" Brooks, for his column on the demise of social mobility. Not enough attention is paid, particularly by self-described "conservatives", to our society's increasingly rigid class structure (even as we pretend we have no social classes, or that "we're all middle class").

Putting Their Money Where Their Mouths Are

Not to state the obvious, but if our nation's politicians really believed in some of their "ownership society" initiatives, they would put their money where their mouths are.

Most employers have either stripped down their pension plans, or have abolished pension plans in favor of investment accounts, such as 401K plans, which I guess gives workers "ownership" over their own retirement. Congress, of course, has given itself an exceptionally generous pension plan. The President enjoys an exceptionally generous pension plan. Ownership, it seems, is for the working masses - our "leaders" don't want that type of risk.

With health care costs increasing, and health insurance unaffordable for many Americans and small employers, "conservatives" like Newt Gingrich like to rail against traditional health insurance plans, suggesting that federal deductions should be reduced and that employers should be pushed to offer bare-bones plans such that workers have to absorb basic health care costs out of their own salaries. Have you heard even a whisper that Congress intends such an effect for itself, as opposed to continuing to benefit from the excellent health care plans afforded to federal employees? At least John Kerry was willing to allow all Americans to buy into that system, with their own dollars. The "ownership society" Republicans (who control Congress and the White House) sneered at that proposal, and have no intention of sharing their coverage with the working masses - even when, as Kerry proposed, working Americans would have to buy in at full price.

Worst Day Ever?

Happy January 24!

Make Your Blog Less Appealing...

Less appealing to spammers, that is.

Educational Wackiness

My curiosity was piqued by a headline in London's Guardian, Head gives the boot to homework. While I am skeptical of a notion that homework is never appropriate, I am no fan of the current "mandatory homework" policies which require teachers to assign a fixed number of minutes of "homework" to students each night, even in the lower elementary grades. From what I have seen, that usually translates into mindless busy work. To put it concisely, I have seen no evidence that mandatory homework policies were needed, and I have seen no evidence (and doubt that any exists) that would suggest even the most modest of increases in student performance resulting from such a policy.

I was recently visiting some friends, and saw one of their daughters working on a homework assignment. The assignment was in essence a spatial-relations quiz - requiring that the student break down shapes into four identical components. She finished the assignment with some help, and then set about erasing one of the answers. When I inquired why she was erasing a correct answer, she replied that her teacher gives bonus points if they make a mistake and correct it - that is, she gets better grades when she gets one or two homework answers wrong than if she gets it right the first time. (And this makes sense, because....)

Getting back to the article, it unfortunately seems to reflect the opposite end of the spectrum - the notion that homework is never helpful - associated with the adoption of a new program "which rejects the notion that a teacher's job is to transmit a body of knowledge to pupils", such that they "'manage their own learning' so that they learned to love learning for learning's sake." You know, I'm all for trying new approaches to classroom learning, and agree that the traditional model can be stifling and at times even counter-productive, but... let's just say, I hope the article is omitting some facts about this program which make it seem less harebrained.

The article, commenting on the school's present policies, observes,

But there is a contradiction between the decision and the school's official policy, which states: "Regular homework is an essential element of learning and contributes to the development of sound study habits."

The school has already introduced a system by which pupils mark their peers' work, and has replaced subject teaching with "cross-curricular projects".

Oh yes.... those systems where students grade their peers' work, which numerous students in any given class will take as an opportunity to "help" their peers by changing answers and improving grades. And isn't there more than a small amount of irony in having students grade each other's work in class instead of participating in a lesson or actually doing work, while giving them homework so that the process can be repeated the following day?

Oh, I'm sure somebody can chime in with some rhetoric about how much kids can learn by grading a peer's classwork and homework, and there are some situations where, if done correctly, that can be the case. But in my experience, we're rarely talking about an opportunity for learning - the usual "peer grading" scenario involves a teacher standing before the class reading out answers, while the students mark an answer correct or incorrect, and then having the student graders call in the number of correct answers as each pupil's name is called out. What this type of "peer grading" does is save the teacher from having to teach, while also cutting down on the teacher's own "homework". (Because, I guess, homework is only good for kids.)

Homework can be a constructive part of the educational process. But assigning homework for homework's sake renders it counterproductive - giving kids busywork that teaches them nothing except that their schools and teachers don't value their time. (But then, one might cynically suggest that "do your mindless busywork", along with "sit still at your desk" and "don't question authority", is part of what many schools think of as "preparing kids for the real world".)

Health Care Policy

Recently, on a blog devoted to health care issues, the author followed up a number of posts on the evils of medical malpractice litigation with an interesting post on the subject of disciplining physicians. The author suggested at the conclusion of the post that the best means of determining which doctors might be the most appropriate targets for discipline would be to look at those who had been sued a couple of times. I had the temerity to ask the author if he was truly asserting that medical malpractice litigation was the most efficient, cost-effective, and fair means of identifying substandard medical practitioners. He responded by... well, he didn't, and the entire post subsequently disappeared. (The start of this Jan. 5 post can still be found in the rdf feed through bloglines, but unfortunately the substance of the post is no longer available.) Too bad, because I would have been interested in hearing the answer.

Well, perhaps the blog does better when addressing health care policy issues? Or perhaps not. (If any Newt Gingrich fans are reading this, I apologize in advance.) The author of the blog seemingly endorses Newt Gingrich on two points. The first is extremely basic, and is far from being a true Gingrich initiative - improving the technology associated with maintaining and accessing medical records. The second is very much associated with Gingrich, and his particular brand of conservative illogic. That is,

He advocates applying the principles of the “ownership society” to medicine, notably health savings accounts and consumer-directed health care. The idea is to give individuals tax breaks to assume the responsibility for paying more of their own medical costs and to rely less on the government and insurers. Market forces, supporters have said, will bring more options, lower prices and higher quality to health care, as they have done for other categories of goods and services.

One would think that the first logical implication of this proposal would give a health care practitioner pause. Whence the savings, if consumers are deprived of insurance coverage and are looking for health care bargains? Since we've just moved those patients into the category of the underinsured, the savings won't come from improved efficiency from, or reduced profits for, the insurance industry. Hospitals and specialists, offering their higher-priced services, would presumably remain primarily within the scope of health insurance policy coverage, and thus would feel no pain as a result of the anticipated cost-savings. So it would appear that it would be the physicians on the front line - primary health care service providers - who would be asked to reduce their prices, become more efficient, and provide better services as a result of this proposal.

And we are to overlook the fact that general practitioners and internists are already shrinking in number, as doctors turn to higher paid specialties.

According to a recent editorial in American Family Physician, there is still a shortage of primary care physicians and "we [United States] find ourselves behind nearly all of our nation's industrialized peers with regard to health outcomes." For the U.S. health care system to improve, [the American Medical Student Association] believes that 50 percent of the nation's medical school graduates should be choosing primary care careers, including family medicine, general internal medicine and pediatrics.

And we are to ignore the fact that, if this magic market for uninsured and underinsured patients truly exists, private health care providers would already be lining up to serve that market. With close to fifty million uninsured people, and close to one hundred million underinsured people, as ready clients, why don't these magically cheap, high quality clinics already exist? In Texas, where about 25% of the population is without any health insurance whatsoever, why aren't doctors lining up to join this new generation of cheap, high efficiency, high quality practice? Why aren't the major health care corporations building clinics to serve the uninsured and underinsured? Well... because as anybody who actually thinks about the issues, or knows a number of uninsured and underinsured people, is aware, even at a "reduced fee" the cost of primary health care services can exceed the budget of a typical wage earner.

Given how frequently doctors complain on that particular blog that they feel sqeezed by medical malpractice insurance premiums because they are limited in what they can collect by virtue of what insurance companies are willing to pay for their services, it seems peculiar that they are so incurious in response to a proposal that would require them to set their fees in accordance with what the uninsured public would be willing and able to pay.

Inventing a Crisis (of Constitutional Proportions)?

Recently, attention has started to turn to the life tenure afforded to Justices of the United States Supreme Court. Pursuant to Article III, Section 1 of the Constitution:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

In the New York Times, Linda Greenhouse notes,

Judges depart from the lower federal courts with regularity, assuring a steady turnover. Supreme Court vacancies, on the other hand, are rare events. It has been nearly 11 years since the last one, when Harry A. Blackmun stepped down at age 85 after 24 years on the court.

The trend is clear. From 1789 to 1970, the average Supreme Court justice served for 15.2 years and retired at 68.5. But since 1970, the average tenure has risen to 25.5 years and the average age at departure to 78.8.

She summarizes some of the main objections to the status quo:

The academic critics see a variety of negative consequences from life tenure. One is that the scarcity and randomness of vacancies promise to turn each one into a galvanizing crisis. Other drawbacks include the temptation for justices to time their retirements for political advantage; an overemphasis on youth and staying power as a qualification for nominees; the likelihood that even those justices who escape the infirmities of old age - and, predictably, not all will escape - will tend after many decades to lose touch with the surrounding culture; and the fear that if the court is seen as out of touch and unaccountable to a democratic society, its legitimacy will erode.

So we have... a fear of what might theoretically happen in the future as a basis for amending the Constitution.

Now granted, if half the Justices on the Supreme Court were senile or left incapable of performing their services due to advanced age or illness, that could present a crisis. And at present Justice Rehnquist's health is in question, raising the question of whether he will be able to return to the Court (and, if not, why he does not announce his retirement). But speculation about one Justice's illness, or sneering speculation about how Justice Thurgood Marshall was supposedly senile by the time he retired from the Court in 1991, does not seem to me to be compelling evidence of an emerging crisis.

I am also less impressed than many with the notion of Justices timing their retirements "for political advantage". I see nothing which would indicate that the present set of Justices has attempted such timing, despite the speculation tossed about four years ago when many asserted that Justices Rehnquist and O'Connor decided Bush v Gore in favor of G.W. Bush so that they could retire under a Republican President. If Rehnquist was salivating to retire four years ago, when he was in comparatively sound health, is it not peculiar that he continues to cling to his gavel? Unless, that is, he intends to time his retirement based upon when he no longer feels capable of performing his job duties, and intends to keep the job he enjoys and believes himself to be very good at performing.

Greenhouse also describes a proposal which would have Supreme Court Justices appointed to eighteen-year terms, with staggered appointments such that a new justice would be appointed in each odd-numbered year, while the Justice whose term was expiring would be assigned to status as a "senior justice" no longer actively participating in the Court's decision-making activities. That would allow the President to appoint two new justices during each four-year term of office. She notes the response of a law professor, Ward Farnsworth, who suggests that "could magnify presidential power and make the two guaranteed appointments each term come to seem like the spoils of political victory."

But there are more objections. First, a President looking to appoint a Justice to an eighteen-year term is more likely to choose somebody who is neither likely to be derided by opponents to the appointment as "too old" for a term of that duration. While it is already a consideration, this might also magnify the extent to which a Justice's possible future health is considered during the selection process. While under either system an unexpected health crisis by a Justice precipitating retirement may seem like a windfall opportunity for a President, the phenomenon of "appointment envy" might be exaggerated if a President were concerned that a successor might get "more than his share" of appointments. (Or should we assume that Presidents are less petty than that?)

It is interesting that some of the advocates for change, while suggesting that Justices may be manipulating their retirement dates such that their successor will be appointed by President with a similar political ideology, don't believe that the same type of manipulation would occur if Justices served fixed terms.

A justice seeking to outfox the new system might be tempted to resign before the end of his or her term whenever early resignation might offer advantage to a preferred successor. Such manipulation should be deterred by a general sense of fair play. In an analogous situation, a president might be tempted to resign a few months before the end of his final term, thus placing his handpicked vice president in power before the November election. Yet all past presidents facing this situation -- most recently, Eisenhower, Johnson, Reagan and Clinton -- have spurned this sort of manipulation. If even elected presidents pursue nonpolitical exit strategies, America should demand no less from unelected justices.

But if we're willing to suggest that Justices engage in political exit strategies under the present system, and given that it would be relatively easy for a Justice to claim a health condition or personal crisis as an impetus for retiring near the end of an 18-year term, why should we not believe that a Justice would "preserve the balance" of the court by tendering an early resignation? Also, part of the reason Presidents don't manipulate their retirements in the manner described is that it would cause a popular uproar, and quite possibly a backlash against the appointed "incumbent". Given that the typical American can't name more than one or two Justices of the Supreme Court, I doubt that early retirements of Supreme Court Justices would generate similar attention or controversy.

Further, we can be assured that some Justices will leave office early - whether due to accident, illness, or even through the political manipulations described above. Would the successor of a Justice who retired early be appointed for an 18-year term, messing up the "odd year appointment" system into the indefinite future? Or would that Justice go to senior status upon the predecessor's regularly scheduled retirement date, in which case the appointment would be an excellent reward for a political crony, but would pretty much guarantee that a President would not nominate a candidate he truly wanted to serve out a full 18-year term - that is, a candidate he believed to be most qualified for the position - to such a limited term.

I also wonder if this relatively complex system of slow-motion musical chairs has been proposed instead of the relatively simple solution (to the extent that one is needed) of a retirement age, because of concern that imposing a mandatory retirement age for Supreme Court Justices will cause Presidents to bypass highly qualified, highly competent candidates in their late fifties or early sixties in favor of younger, less qualified candidates who can be expected to serve for a longer period of time. It has been suggested that Justice Thomas was selected, at the age of 43 because of his relative youth and the anticipated length of his service. Whatever you think of Justice Thomas, it seems fair to suggest that we should not create a system that further disfavors many of the best candidates for the Supreme Court because of fear that their service would be "too short".

I note also that the proposals don't include the possibility of reappointment, perhaps with a shorter term of service. One need only imagine the reconfirmation hearings, assuming a change in the composition of the Senate, in order to assess why this isn't high on the list of proposed reforms.

But in any event, I don't think we should set out to look for a crisis. If an actual crisis does emerge on the Supreme Court, and we find that it is dominated by judges too enfeebled or senile to perform their assigned tasks, that is a problem we should be able to address in relatively short order at that time. For now, there is every reason to believe that despite their increased lifespans and terms of service, the Justices will continue to retire when they are no longer able to perform their jobs.

This seems pretty brazen....

New and used judges for sale on eBay? (Don't "used" judges prefer the term "experienced"?)

There's Not Much Else....

I don't wan't to be unfair here, but on the face of the article I don't think that there's not much else to like about the guy - in my opinion he's way too comfortable with his past - but if you want something to throw in the face of a Holocaust revisionist, here's an "Oh yes, it did happen" from an SS Officer who served at Auschwitz.

(Not So) Superpredators Update

A year ago, I ranted a bit about stereotypes and the criminal justice system, and brought up a case of prejudice and police incompetence in Chicago:

A couple of years ago the Chicago Police were so quick to adopt the "super predator" stereotype with two African American boys, aged seven and eight, that they bungled the investigation and all-but-certainly let a convicted child molester get away with molesting and murdering an eleven-year-old girl.

Today, the City of Chicago reportedly settled a wrongful arrest lawsuit by one of the boys for $2 million dollars.

The boys, then 7 and 8, were charged with the girl's murder but were later cleared when DNA tests linked the case to Floyd Durr, a Chicago man who has since been convicted of sexual assaults on other young girls. Durr is still awaiting trial in Ryan's death, although he is in prison as a result of the other convictions.

I hope Durr's convictions relate to offenses committed before the 1998 murder of Ryan Harris, as but for the botched investigation focused on the two boys he would likely have been incarcerated for the murder before he got a chance to attack any more young girls. It was, after all, that focus that gave credence to Durr's "she was dead when I molested her" defense, and forestalled his prosecution all of these years.

The Military You Have

Something I haven't seen discussed much, within the context of Rumsfeld's clumsy comments about going to war with the military you have, is that Rumsfeld and Bush also went to war with the military they wanted. It isn't an accident that the military was deployed with Humvees which were lightly armored or unarmored. That was part of Rumsfeld's plan for a fast, light-weight, highly deployable military. The idea was that, if you can outrun the enemy's tanks and artillery, you don't need the armor.

Even before the Iraq invasion, a friend of mine pointed out the problem with this approach: What happens when the enemy works by roadside bomb or ambush, instead of trying to hit you with a tank or artillery shell. What if the U.S. forces in an urban setting are led into a dead-end, where an unarmored vehicle would be incredibly vulnerable?

Recall that the M1/A1 tank, which has been invaluable in the Iraq war and occupation, was intended for retirement before the war? As that article notes, the future of the tank had been called into question, with "Secretary of Defense Donald Rumsfeld recommending a lighter, more technologically advanced military" - one which would depend primarily on wheeled vehicles which could be quickly airlifted to their destination, rather than massive vehicles which had to be transported by land and sea. For Rumsfeld to suggest that the military in Iraq was the one he had, not the one he wanted, is truly disingenuous. Rumsfeld wanted Iraq to be a showcase for his plan to reinvent the U.S. Armed Forces into a light, fast, highly deployable army, and going in with lightly armored and unarmored vehicles was an integral part of his plan.

War on Drugs

A British documentary producer reflects on his experiences in Peru and Colombia, and questions whether the war on drugs is worth the price - even if you assume an increase in drug use:

Yes, more people will try these drugs and there will be tragedies. But 30 years of the war on drugs have achieved almost nothing except to make a few people fantastically rich, to arm our inner cities, to criminalise a generation of users, and to leave tens of thousands of Latin Americans dead. As our cocaine maker in Peru happily told us: 'People want our cocaine because it is good and, for a while at least, makes them happy.'

The Internet At Work

You may have received an email forward in the past couple of days, with a picture of a two-year-old boy who was found in Thailand, but whose parents had not been found. The Internet proved to be an effective tool for finding the boy's family:

A two-year-old boy found dazed, alone and apparently orphaned in this devastated Thai resort was identified and reunited with his family after an aunt in Sweden recognised his picture on the Internet.

Unfortunately, the boy's mother and grandmother remain missing.

Urban Wildlife

I just came face-to-face with a skunk, outside the back door of my house. "Is that a large cat wobbling toward me? Um... Uh oh." Of course, in my opinion a close encounter with the face end is much better than a close encounter with its opposite end.

Ah, the joys of living a stone's throw from a sizeable wooded area, even in the middle of a city.

With Age Comes Wisdom

A couple of weeks ago, I recounted some thoughts from a visitor to this blog:

A visitor to the blog sent a note to remind me that, in any Republican proposal for Social Security "reform", the core of the reform effort has been at a minimum to reduce benefits, if not to undermine or eliminate the program (and that he's old enough to remember all of them).

Today, an aide to Karl Rove did us the favor of confessing that this, not "saving" Social Security, is in fact the Administration's goal:

Calling the effort "one of the most important conservative undertakings of modern times," Peter Wehner, the deputy to White House political director Karl Rove, says in the e-mail message that a battle over Social Security is winnable for the first time in six decades and could transform the political landscape.

If this is perceived as a possible last volley in what the Republicans see as a sixty year battle against Social Security, how can anyone pretend that the present initiative is about anything but destroying the foundations of that system?

"We Don't Accept Uninsured Patients"

One of the more ridiculous arguments on health care costs is that a lot of the woes of the system would be magically cured if we reduced the scale and scope of medical insurance, such that most basic health care costs were paid directly by the patient. Part of the problem with that "logic" is that health insurance isn't really insurance in the classic sense - it is more accurately a prepaid package of health care services, which will be provided under contract for a fixed price (plus applicable copayments). This can create an incentive for a person - particularly somebody who is paying out of pocket for health insurance as opposed to obtaining it as an employee benefit - to seek to maximize his use of medical services while insured, to "get his money's worth". But more typically, what you see are people who are uninsured or underinsured going without medical care that would be beneficial (and in some cases is necessary) in order to avoid the high cost of health care.

The stupidity of the essential argument is of Gingrichian proportions - there are, at present, about 45 million uninsured Americans, and about as many underinsured Americans. That is, there are at least 45 million people who are already forced to buy medical services as needed at "market prices", and tens of millions more who routinely must do so - unless, of course, they choose to go without those services. If the "free market" were a magic cure for the high cost of health care, the growing market of uninsured and underinsured should have doctors lining up to treat them. But they don't. And when they try to obtain medical care from an estabished provider, they will often be told, "We don't accept uninsured patients".

Meanwhile, a doctor recently complained on another blog that he feels squeezed by malpractice premiums because health insurance companies limit what he can charge - so as to justify surcharging patients a fee for the cost of malpractice insurance. The typical medical insurance company applies some mechanism to determine a "market rate" for a given area, and then reimburses participating physicians at a portion of that "market rate". (So yes, the uninsured and underinsured patients would pay a higher fee for the same service - often remarkably higher - than an insured patient.) Nobody was forcing this doctor to accept insured patients, or to agree to the terms of any given insurance company - if he truly believed the "market" would support a higher rate of payment, he would be within his rights to decline to participate in the insurance plans which so "limited" his income. But the reality is, patients find it convenient to work through their own health insurance networks, so as to minimize copayments and to avoid having to pay out of pocket and seek reimbursement for medical services. And doctors know full well that the "market rate" for services is an artificial construct. The doctor who made that claim chose to participate in health insurance plans not because they limit his income, but because they help him maximize his income. I would not be at all surprised if, despite his complaints, his practice only accepts insured patients.

Also, given the high cost of health care, a typical physician, clinic or hospital that treats and uninsured or underinsured patient wants to be paid up-front. Many even offer "credit counseling" to help people finance their medical care. When uninsured emergency patients come to a hospital, protected by anti-dumping laws, and receive tens of thousands of dollars in treatment before they can be transferred or discharged, hospitals often have to eat those costs. When they can check your credit and arrange financing in advance, perhaps secured against your home, they have the ability to collect their fees - or to refuse service if you aren't going to be able to pay. That's pretty mercenary when it comes, for example, to somebody with cancer, but that's the way the market works. In most western nations, people aren't asked to choose between their homes, savings, and livelihoods and obtaining necessary health services. In this nation, our present political leaders want to make that choice even more stark.

Ironically, the satisfaction of one of the Bush Administration's wet dreams, the elimination of an employer deduction for health insurance premiums, might be just what it takes to force a national health care program. The "big three" auto manufacturers, for example, are already stressed by the costs of health care. Take away the deduction, and you'll force them to choose between absorbing a massive increase in employee compensation or lobbying for a national health care plan. I think that, given the choice, they'll opt for the latter.

Affirmative Action in Law Schools

Today, while browsing How Appealing, I was reminded of two things: Why I stopped reading "townhall.com", and of the persistent debate over whether "affirmative action" programs in universities do minority students a disservice - the usual argument is that they place students in institutions above their intellectual ability, and thus cause lower performance and higher attrition rates. The former issue is the easier to address - I got tired of the fact that you usually didn't have to read past the headline to know what a TownHall.com piece would argue, and that if by then you could not already predict the tired, overused arguments that would be applied to reach the editorial's conclusion, all you had to do was look at the name of the author.

Today's editorial was a bit of a surprise - the headline, "Does affirmative action produce more black lawyers?", certainly presages the anticipated townhall.com answer of "No!". But it didn't telegraph that the author of the piece would then digress into an irrelevant narrative about creating an alternative system to the nation's public schools. (The surprise was, obviously, less the nature of the argument than the fact that it would be used to pad out this particular piece.)

The editorial, in classic townhall.com style, is internally inconsistent. It references a law review article, "A Systemic Analysis of Affirmative Action in American Law Schools" [PDF Format, 1.2 Megabytes], by Richard H. Sander, a law professor who we are first told is " a long-time liberal and advocate of race-conscious public policy", and are next told is "cannot be painted with any ideological brush". Um... okay. In any event, a brief summary of the law review article is provided by the author. The arguments he presents are not new, save perhaps in their appliction to law schools instead of undergraduate institutions.

The author's first suggestion is that affirmative action programs for African American students at the nation's law schools are so pronounced that they are effectively parallel systems of admission - or, as he puts it, they "are generally hard to distinguish from racially segregated admissions". The author then suggest that because African American students come into law school with such inferior preparation, they underperform during their first year.

Accepting these assertions as true, isn't the reasoning rather circular - to criticize affirmative action programs which are meant to close an achievement gap on the basis of an achievement gap? If the argument is that the affirmative action programs don't offer anything to the students themselves, and do nothing to advance their later lot in life, that's material. But we already know about the achievement gap, and one wouldn't expect it to magically disappear merely because a student is accepted into a law school.

It would be interesting, of course, to see how the African American students perform during their second and third years of law school - the article suggests an overall slight decline in average class ranking. (My personal performance following first year went up - in no small part because I learned to game the system. Read the professor to anticipate what will be on the exam; write an exam that accords with the professor's politics; assume that a professor who assures a class "I don't take politics into consideration while grading" is either lying to the class or lying to himself, etc. I think the biggest advantage some of the kids from "elite" undergraduate institutions had, on their way into the law school, is that they were already expert at gaming the system.) The author presents a number of theories as to why this might be the case, settling primarily on "academic mismatch". But the author's arguments (including his personal example of almost failing an undergraduate course in German, finding himself with little aptitude for that language) do not necessarily support his thesis. That is, the mismatch may not be between the student and the institution, but (as in his case) between the student and the subject. It may be that some of the "mismatched" students might have been better served by being directed to business school, for example, by their undergraduate academic advisors, instead of law school. Presumably the author is not disputing that he, personally, was academically qualified to go to Harvard and to enroll in the German course he almost failed - so why is he so willing to attribute "mismatch" to academic inadequacy as opposed to the subject matter when it comes to African American students?

The next argument makes no sense to me - it is that "these low grades substantially handicap black students in their efforts to complete law school and pass the bar". Perhaps it is because when I was at law school I didn't see many students drop out of the program, and the only two I can recall from my first year class were not African American. One hated law school; the other got a job offer within his prior profession that was "too good to refuse". The lowest performing student I can recall from first year, also, was not African American - and she ultimately did pass the bar and found employment in a law firm. Now granted, my law school might have been exceptional in this regard, but I doubt it - I would venture that other elite law schools had similarly high pass rates for their students, including minority students. The author's statistics suggest that relatively few African American students drop out of elite schools, with a growing dropout rate as you move down through lesser-rated tiers of schools.

That seems rather inconsistent with the author's notion that attrition rates would drop if affirmative action were eliminated - in fact the author concedes that at elite institution the lower attrition rates offset the effect of lower grades. And while the author suggests that first year grades are a more important factor than law school ranking, it is not clear to me that the author's analysis properly takes into consideration the relatively low numbers of elite institutions - that is, the overall extrapolation seems to overrepresent middle and lower tier schools, which is where he expects the students from the elite schools to end up.

In terms of how this would affect bar passage rates, the author asserts, "Only 45% of black law students in the 1991 cohort completed law school and passed the bar on their first attempt; in the absence of preferential admissions, I estimate that this rate would rise to 74%." That conflates the two issues - graduating from law school and passing the bar - when in my opinion those issues should be treated separately. After all, everybody who takes the bar in a particular state at a particular time takes exactly the same test.

Most students take "bar review" courses to prepare themselves for those tests, their first year of law school (where many of the key subjects for the bar exam are covered) being an increasingly remote memory, and coverage of state law issues (particularly in elite schools) pretty much absent from the curriculum. Granted, it is suggested that some lower tier law schools amount to little more than a three year bar review course, but presumably the author isn't assuming that the typical African American student declined admission by Yale would end up at such a school - he suugests that on an even playing field, the student declined by Yale might end up at Cornell, the student denied by Cornell might end up at Cardozo, and the student denied by Cardozo might end up at Syracuse. The author accepts that this would result in a marked diminishment of African American enrollment at the nation's top 40 law schools. On a personal note, after I left law school, my school raised its first year curve - such that students had higher GPA's. Despite the author's thesis, I am not aware that this had any effect on either attrition or bar passage rates.

This "trickle down" (the author prefers "cascade effect") in the admissions process is presumed to result in a better match between student and law school, and higher graduation rates - but even accepting that assumption it still isn't apparent how that would affect bar passage. The author presents statistics showing a strong correlation between law school GPA and bar passage rates, but as with the prior extrapolation this overall effect would seemingly be distorted by the number of students from middle- and lower-tier schools, as compared to the relative few from elite institutions.

The author also suggests that the effect of higher grades at a lesser institution would result in higher income than lower grades at an elite school. This, again, assumes a mismatch between student and school as opposed to between student and subject matter. I don't think, for example, that the author would have fared particularly well in a German class even at a mediocre college. It also presupposes that post-law school income is the best measure of success - something that may surprise those of us who took alternative paths in our legal careers. I know a lot of lawyers who have found greater satisfaction in smaller firms, public service, or other lower paid careers - even as law professors. Failures by the author's standards?

Even with respect to the "money effect" the author is very tentative in his assertions - "It is clear enough that law school grades are quite important, perhaps more important than law school prestige in determining who gets what jobs." On a personal note, I had a couple of interviews during law school where the identity of my undergraduate institution was enough to put me out of the running - whatever one makes of the author's overall projections, I don't think they would hold for the NLJ 250 - I think that you would find that the top law firms recruit almost exclusively from elite law schools, and want "brand name" undergraduate institutions. Eliminating African American students from the top tier would seemingly have a profound impact on their presence in top tier firms.

The "money" analysis also excludes the possibility that racism plays a role in the relative income earned by African American law school graduates. While the racial environment at law firms has certainly improved, and while some reading this might disagree, I think that assumption is quite naive.

The author extrapolates from his findings to suggest that, given a level playing field, "86% of blacks currently enrolled in law schools would have been admitted to some law school under race-blind policies, and the much lower attrition rates that would prevail in a race-blind regime would probably produce larger cohorts of black lawyers than the current system of preferences produces." For the reasonas outlined above I personally believe that, despite the author's attempts to back up his position with statistics, this thesis relies too heavily upon assumption. (Giving due credit to the author, toward the end of his piece the author acknowledges that there are significant defects in his data, and that his analysis relies heavily upon assumption - he just happens to believe those assumptions to be sound, whereas I am skeptical.)

I am left with one lingering question about the piece, and would appreciate any thoughts you might have. The piece is titled, "A Systemic Analysis of Affirmative Action in American Law Schools", yet it addresses only African American law school students as compared to Caucasian law school students. Given that several other minority groups are significant beneficiaries of typical law school affirmative action programs, how is that a "systematic analysis of affirmative action"?

Asbestos Litigation

mythago shares a perspective from the trenches.

Charter Schools

Today's Washington Post brings us an editorial helping to explain why charter schools haven't lived up to the promise.

Second Term Agenda

The New Yorker gives us the highlights of Bush's second term legislative agenda.

Merry Christmas

Because If You Oppose the Death Penalty....

Okay... somebody explain this to me:

TEGUCIGALPA, Honduras (AP) - Gunmen opened fire on a public bus in northern Honduras late Thursday, killing at least 23 passengers and wounding 16 others, police said. Many aboard were women and children.

* * *

It wasn't immediately clear who carried out the attack. But Torres said the assailants left a note saying they represented a revolutionary group that opposes the death penalty and which contained vulgar comments about congressional President Porfirio Lobo Sosa, who has suggested instituting the death penalty for severe crimes.

Okay... you don't really have to explain it. It makes a crude sort of sense if you assume that this group opposes the death penalty on purely practical grounds - it doesn't want its thugs and murderers to face possible execution when they are caught.

Eclectic Merchandise, Certainly....

I am not sure quite how I ended up at the Crazy Ape site, but I bought a few unusual gifts there. There was an error in fulfillment (i.e., one of the items they shipped was the wrong item), which permitted me to test their customer service - which proved to be among the best I've encountered for online stores.

A surprising level of honesty....

In George Will's latest rant on global warming, he is surprisingly up front about the fact that the bulk of his argument is based upon a work of fiction. Granted, that's par for the course, but usually the knee-jerk "it doens't exist" types choose fictional works that are at least disguised as science. Next stop, Jurassic Park? Congo?

"Readers Digest Reasoning"

On another blog, I found myself in an amusing discussion over a "tort reform" advocacy site. One of the site's authors was defending the site's approach to the subject - which boils down to lifting sensational headlines from the news, and "reacting" to them, usually without delving any deeper to see if the news story contains factual error. The site's ideology means that this presentation is entirely one-sided. That is, the only type of litigation described on the site are cases the authors deem worthy of ridicule. (The author claims that there is balance on the site, for example because it has a letters section where the proponents may choose to print contrary opinions, and they occasionally link to other resources which take contrary positions.) Needless to say, this type of one-sided, bad analysis is anything but unique in the world of "tort reform".

Although more formally known as the "Hasty Generalization", I think of that type of fallacious logic as "Readers Digest reasoning" because, with no offense intended to that publication, that is where I first encountered this particular rhetorical tool, and it is one that publication has historically used with significant frequency. The proponent of a position collects a set of sensational anecdotes, and strings them together to advance a political position. If you look past the surface such an argument usually falls apart pretty quickly - the "examples" are found to be completely unrelated and isolated, and the "trend" ostensibly shown by stringing them together simply doesn't exist.

Yesterday, CJR Daily brought us an example of this type of flawed reasoning, as applied by Conservative pundits to the supposed demise of Christmas:

Stories about banned Christmas carols and employers forbidding the use of "Merry Christmas" in favor of "Happy Holidays" seem to pop up each December. Over the past few days, however, the issue has been moved front and center by a hungry press, with stories popping up in the national media almost daily, and conservative television host Bill O'Reilly running a daily segment titled "Christmas Under Siege."

But wade through the wall-to-wall coverage of the story, and it becomes apparent that there are only a handful of examples -- three, to be exact -- being recycled in article after article. Many of these pieces use the same incidents in almost the same way. Some even hit for the cycle, as USA Today did today, referencing all three stories in one shot.

* * *

When not flogging the same three stories -- two of which are essentially false -- to create the appearance of a genuine national trend, the media is busy interviewing the same outraged representatives of a few conservative family groups trying to put the Christ back in Christmas. The Alliance Defense Fund, for example, has been cited in numerous stories in the past week, as has the Rutherford Institute, another conservative group.

This is also how we ended up with the notion of the juvenile "superpredator", and ended up as a nation spending hundreds of millions of dollars on "punk prisons" in an era of declining juvenile crime. This type of nonsense frequently gets repeated, without any apparent level of thought, by our nation's media. Because it is so sensational?

Who said anything about throwing books away?

Beyond copyright (which isn't an issue for the initial focus of the scanning, public domain works), and speculation about possible damage to books from the scanning process, the biggest criticism of Google's proposal to scan hundreds of thousands of books from several major university libraries seems to be that the files Google creates may become obsolete.

Another crucial concern is the well-being of the books themselves. Google has developed a scanning technology that the company claims is not destructive. Clearly, Google will need to work closely with libraries to ensure that no books are damaged. It is an illusion to think that the digital versions of scanned books can replace the books themselves.

A participating library will get a free digital copy of every book scanned in its collection. In other words, each library will essentially get a digital backup of a significant portion of its holdings, but it will be critical to remember that printed books are a stable medium, one that has persisted for hundreds of years.

Digital technology is only a few years old, and even in that brief time, the digital world has produced dozens of incompatible, and often unreadable, media formats. The Google project will enhance the usefulness of the books it encompasses, but it in no way will render them obsolete.

Because, as the Detroit Public Library proved, no self-respecting librarian would dispose of thousands upon thousands of books, discarding them (including some rare books, scavenged by collectors) unceremoniously into dumpsters, to free up shelf space. Couldn't happen. Books are forever.

Perhaps I don't read enough celebrity news....

After prior discussions of wacky searches by the TSA, I came across an interesting case - where a wacky search of a celebrity (of sorts) produced evidence of possession of illicit drugs:

They claimed to have discovered this contraband in the bottom of a bottle of Ibuprofen, still three quarters full of its original contents. This bottle had been discovered in the depths of my bag by an employee of Covenant Security, a subcontractor of the TSA, while she was searching it for explosives. They had opened my bag after detecting wires in one of its external pockets. The wires in question were part of my laser gloves, a bit of Burning Man finery, and were far removed from the Ibufrofen bottle in question. What they found in the bottom of that bottle was not an incidental discovery during the course of a mandated search for something else. They had dug deep and purposefully. This was no joint in the ashtray casually spotted by the officer while writing a speeding ticket. A closer analogy would be the joint discovered on the floorboards of your car after the officer removed its carpeting while writing a speeding ticket.

Let's start by conceding that in this day and age, taking contraband through security at a public airport is probably not wise. Perhaps particularly if you have a publicly known association with, say, the Grateful Dead. Perhaps, also, if you are catching a flight home from "Burning Man". But the issue should not be the wisdom of John Barlow's actions, but the legality of the TSA's actions. And, as Seth David Schoen outlines, the Federal Government and TSA are doing their best to avoid having that issue properly reviewed by a court - in the name, of course, of "national security".

The Federal government lawyer sat right behind the People's lawyer and objected every single time that the defense asked anything about screeners' training or procedures, or about statistics, history, trends, equipment, techniques, or anything substantive about the roles of different law enforcement agencies. And the judge essentially always granted the objections on "relevance" even when they were made on "privilege". For example, the defense asked things like whether x-ray machines beep and whether they have two-dimensional displays, and the United States objected. The United States does not want you to know whether x-ray machines beep, or whether they have two-dimensional displays.

Intermittently, I found this hilarious, because much of the alleged "SSI" could be discovered immediately by a passenger or a journalist. (I am still working on a piece that will describe vulnerabilities in vastly more detail than almost all of the information the United States objected to at the People v. Barlow hearing. I intend to describe not only the security procedures used by specific airports and airlines, but a good deal of detail about how they can be circumvented, in the hope of showing that many of these measures cause privacy harm for no benefit. All of those descriptions derive solely from my experiences as a passenger on a single recent commercial aviation trip. That does not prove that the government is legally wrong to say that people within the system are forbidden to talk about equivalent things, but it suggests that there's not much true security benefit at stake in forbidding them.)

Mr. Schoen recounts testimony by an expert describing that the TSA agent's search "shake, open and sniff" techniques which led to the discovery of the drugs, ostensibly on the basis that they might be an explosive, would have been both absurd and dangerous had she actually believed the pill bottle to contain an explosive. He also suggests that the judge was surprised that the defense was even bothering with such trivial issues as the constitutionality of the search:

The judge mentioned that the penalty Barlow would face, if convicted, would not be particularly severe, and seemed to express slightly obliquely the view that it would be in Barlow's best interest to plead guilty -- and that it was surprising that he hadn't done so, or would be surprising if he didn't do so. (I think there's also a class issue at work here. Most defendants can't afford to fight for principle and can at the very best afford to look out for themselves, not for the abstract rules by which the fourth amendment is brought to bear on a class of cases.)

The judge ultimately denied the suppression motion.

A Note From The Archives

Back when I was in law school and enrolled in a clinical class on appellate practice, one of my classmates found a case which he believed would be helpful to his client. It was a surprisingly old Michigan case, from 1928, which seemed to endorse the notion of "battered woman syndrome", even though that concept wasn't formalized until the 1970's.

Defendant shot and killed her husband in their home in Flint on February 13, 1927. She defended on the sole ground that the shooting was in self-defense. Early in the trial the court indicated that the defense would not be entertained, for the reason that there was "no overt act on the part of the deceased toward her at that particular time," and that deceased was not at that moment engaged in an assault upon her. To support the defense, evidence was offered of threats made by deceased to defendant shortly before the shooting, of assaults made by him upon her, of her physical injuries, and of his brutal and violent treatment of her for some time prior to the event in question, which offer was refused in part at least.

In essence, her defense was that earlier in the evening, without provocation, her husband had become enraged with her, striking her, choking her, and threatening to kill her. He reportedly cleaned and loaded a pistol (one of three firearms he kept in the bedroom), held it to her, and said "I got to kill you", indicating that he would do so before the morning. They went to bed around 9:00, and she stayed awake. Two or three hours later she got up, took the pistol, and started to leave to go to a neighbor's house. She claimed that as she was leaving she heard a noise which she believed to be her husband waking up, that she couldn't run because the house was locked up and there were other guns in the bedroom, so she shot and killed her husband. The autopsy report lent credence to her claim that her husband was getting up when she shot him. The Michigan Supreme Court held that the woman should have been permitted to introduce evidence of justifiable homicide, expressing

After beating defendant deceased said he would kill her before morning. It was not yet morning. He had hung the loaded pistol within reach. He had other guns and ammunition near and in the room. Defendant had suffered his violence and brutality. She knew him. Her fear would not be lessened by her apprehension of being discovered in her attempt to leave the home. Viewed from her standpoint of the time, or from any standpoint, it cannot be said as a matter of law that he had abandoned his declared purpose to kill her, nor that the circumstances were not sufficient to induce in defendant an honest and reasonable belief that she was in danger of great bodily harm or loss of life.

The professor, after first asking with a slight tone of incredulity if my classmate had noticed anything about the name of the defendant (People v Giacalone, 242 Mich 16; 217 NW 758 (1928)), which might have lent to the outcome. When my classmate looked a bit bewildered, the professor indicated that this was the Giacalone crime family, and that the reversal was not based upon an early judicial recognition of the pressures a battered spouse might take, but upon the fact that the woman was married to a leading mobster at the height of prohibition. The instructor's point was that the Court was silent as to the facts which drove its decision, and the case was viewed as an anomaly.

You've got the cutest little....

Slashing Social Security

A visitor to the blog sent a note to remind me that, in any Republican proposal for Social Security "reform", the core of the reform effort has been at a minimum to reduce benefits, if not to undermine or eliminate the program (and that he's old enough to remember all of them). He observes, "Socially the program has made a lot of potential homeless old people into occupants in senior citizen’s housing." He agrees that there are relatively simple cures to the present system, for example, by raising or eliminating the cap on payroll taxes, and applying the tax to all income and not just wages.

He describes the Republican efforts, at their core, as "class warfare" tactics. He observes that Social Security "was and is, essentially, a redistribution of income", noting, "There is no attempt to use wealth or capital for this program, yet." (And, in my opinion, there won't be - but it does seem fair to point out that the exclusion of wealth from the Social Security formula and the cap on payroll taxes largely transforms it into a subsidization of the poor by the working classes - one might infer that if Bush could effect a wealth transfer to Wall Street and further reduce Social Security taxes on the rich without private accounts, he might not be so 'hot and bothered' about 'reform'.)

Within that context, today's Times reports, despite Bush's talk about private accounts,

nearly every leading Republican proposal on Capitol Hill acknowledges that private accounts by themselves do little to solve the system's projected shortfall of at least $3.5 trillion. Instead, those proposals rely on deep cuts in benefits to future retirees.

And, as might be expected,

Mr. Bush, who is likely to step up his call for private accounts when he acts as host of a two-day conference on the economy this week, has steadfastly avoided any reference to cutting future benefits.

One might cynically suggest that, if you assume that the goal is to detroy the program and not to save it, balancing the books becomes irrelevant to Bush's equation. (Actually, he may be looking to create a windfall: destroy the program and the treasury notes that form the so-called "trust fund" suddenly need not be repaid.)

More on "Private" Social Security Accounts

Today, Sebastian Mallaby adds to the debate on "private" Social Security accounts, noting,

The contributions will be mandatory; the investment options will be restricted; and retiring account holders may be required to spend their savings on annuities.

If they truly are going to force retirees to buy annuities, it sounds like a disastrous idea. After extracting year after year of "management fees" for handling the account, the companies approved to manage these "privatized" retirement accounts will also be permitted to extract the huge commissions typically associated with annuities? If retirees are going to be forced to purchase annunities, why not have them purchase them from the outset? The system Mallably describes sounds like a recipe for legalized churning.