"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.

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.

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.)

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.

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".

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.

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?

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?)

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.]

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.

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.)

Politics Overpowering The Story Line

In the past couple of years I've seen two movies in which Chris Cooper had major roles - Silver City and Syriana. Those films had something else in common - the mistake of working so hard to advance a political message that the story line suffered.

Silver City, which you probably missed, mixes an interesting "whodunit" where a body floats to the surface of a lake as a political ad is being filmed. Instead of simply telling that story, the movie focuses heavily on criss-crossing plotlines surrounding Dickie Pilager, a less-than-intellectually-stellar candidate for Governor of Colorado being carefully managed by his handlers as he runs for office. Pilager is a parody of George W. Bush, and the movie's politics are about as subtle as the "play on words" represented by his surname. (However, even as they clearly disagree with his politics, the film makers depict Pilager as sincere in his beliefs.) Even the competent cast and strong performances can't save the film from itself.

Syriana has an even more impressive cast, at least by Hollywood A-list measures, and is in many ways more coherent. But again, to advance a political message and to "educate the audience" about the Middle East, the film incorporates a couple of unnecessary plotlines, one of which was not sufficiently developed to be convincing. You knew from the start that the story lines would ultimately intersect, but the ultimate intersection was surprisingly clumsy. In comparison to most political movies, the film did not condescend to the audience in order to advance its political message... which may be a problem in terms of its effort to create a deeper understanding of the issues. If you don't have at least some awareness of what the film is trying to convey, you are probably scratching your head in the manner of a woman a couple of rows back who, as the closing credits started to roll, asked "Did you get that?"

Both films take a very cynical view of the manner in which this nation is run, and the manner in which corporate interests can override the public good with little to no consequence. Or should I say, circumvent laws which interfere with the public good, as Syriana was rather explicit in its position that the government's collusion with business interests was perceived as advancing American interests. At most, the government will ask for a couple of sacrificial lambs who can be prosecuted in the name of good governance, as it otherwise blesses international business dealings and corporate mergers that increase the reach, wealth and power of America's corporations. Given a choice between two possible leaders for an oil-rich nation, one of whom is a regressive moron who will cater to American oil interests, and the other of whom is a progressive who wishes to transform the nation into a modern, progressive democracy, and to invest the nation's oil wealth in building that society, we pick the former. (It's easy enough to see a history where we supported thugs and dictators in the Middle East, and subverted democracy. But I'm not sure that the brand of progressive Arab leader depicted in Syriana can be found outside of fiction - and if such a leader exists, he's certainly not outspoken in his beliefs.)

Unfortunately, beyond its heavy-handed caricatures, there's truth to its depiction of the merger of corporate and government interests. True believers in our claimed effort to bring Democracy to the Middle East will probably hate the film. The film was rather explicit in its belief that the United States wants to keep the Middle East backward, dependent, and open for business with the U.S., and doesn't much care what happens to the region when the oil runs out.

The biggest surprise of Syriana? Alexander Siddig, who played the annoying Dr. Bashir on Star Trek Deep Space 9, really can act. (It's like seeing Jamie Foxx's outstanding performance in Ray.... Whodathunkit.)

In any event, had either film cut down on the amount of political baggage it chose to carry, either could have been quite enjoyable. And perhaps (metaphorically speaking) had they chosen carry-on luggage instead of overweight checked baggage, both films would have been in a better position to win converts to their respective causes.

Facts? Who Needs 'Em?

Not the "tort reformers", apparently....

Over at the Volokh Conspiracy, David Bernstein relates something he read on Overlawyered, about two secretaries who settled a sexual harassment case for $450,000.00. Bernstein comments, "the complainant's in the 'Ride Them Hard' case won a settlement, apparently largely because the school district's lawyer was thought to have mishandled the investigation, and the distict was afraid this would make them look bad before a jury.... Regardless, this might just win my vote for the most ridiculous case of the year." Elsewhere on the Internet the settlement is declared the "Outrageous lawsuit story of the year."

The news accounts which inspire all of this horror relate,

The two secretaries' claims came from a comment Assistant Superintendent Thomas J. Kirschling made to them and two others in July 2002. At some point mid-month, Kirschling said "I ride them hard and put them away wet."

The two secretaries sent him a memo saying they were outraged. He later explained and apologized, according to a subsequent memo.

Kirschling was apparently using a rural idiom that means someone is tired or worked hard. The phrase is taken from the need to cool down a horse after strenuous exercise. Only a mistreated horse is stabled while it is still sweating.

After the women complained, the district assigned an outside attorney to investigate, but that probe inadvertently lapsed.

After the suit was filed, school officials said Grosskreutz recommended settling the claims and updating the district's sexual harassment policies. The district is reviewing its sexual harassment policies.

That is, the coverage is very sympathetic to the school district and defendant, and relates their version of events qualified only by the word "apparently". Another news story relates,

At the time of the complaints, district Superintendent Fredrick Nickles said the district's affirmative action office would look into the remarks.

After the initial 2002 report, the district hired an outside attorney to research the remark, Davis said, because they wanted the investigation into a top staffer to be without taint.

However, the attorney they hired apparently did not do the work, Davis said.

"Something developed, something personal with the legal representative, and it was never reported back to the (district) administrators," Davis said. The investigation "kind of just fell through the cracks, and that later on created problems for the district because it looked like we didn't show any concern for the issue of the harassment."

Okay, so what's wrong with this picture. The School Board supposedly conducted its own internal investigation through its Affirmative Action Office, and also contracted for an independent investigation through outside counsel. When an undefined problem with the outside attorney developed, no new attorney was brought into the case.

These are the facts deemed so outrageous by the school board and its insurance carrier that they opted to settle for $450,000.00? Why am I thinking that there is a lot more to this story.

It appears that Overlawyered seeks to "objectively" relate summaries of news coverage, thereby disclaiming any responsibility for error, omission or misrepresentation that finds its way into their content by virtue of their failure to engage in any analysis or fact-checking. Given their agenda, perhaps their preference for stenography should not be surprising. But it makes me wonder why anybody takes them seriously.

Attack on Iran

The Volokh Conspiracy's David Bernstein predicts that Israel will attack Iran within the next few months:

Given that the anti-Iranian consensus is so solid even on the Left, I would be very surprised if the Israeli government fails to follow through on its promise to prevent Iran from acquiring atomic weapons--assuming, of course, that Iran isn't stopped by other international forces.

If he is correct, it would seem that any such military venture would be for the benefit of popular opinion within Israel, not for any legitimate defensive purpose. And it would likely backfire.

Let me explain. Almost twenty-five years ago, Iraq had an active nuclear weapons program which Israel eliminated with a single air strike. Iran has been slower to get into the nuclear weapons game, but they paid attention to Iraq's experience and have structured a program that is by all accounts dispersed across the country (declared sites as of November, 2003). There is no single site to hit, and even successful strikes on several facilities may have little impact on the overall weapons program. I expect that Iran has also been calculating in putting some key facilities in densely populated areas, such that any strike against their weapons facility would likely result in significant casualties to civilians. (Followed, no doubt, by "video footage" of those facilities analogous to Iraq's "you attacked our baby milk factory" claims from the first Gulf War.)

Any significant loss of life to Iranian civilians would be used as a rallying cry against Israel throughout the Muslim world. Any strike at all would be used first as a basis to declare that the attack was an offensive failure (whatever the reality) and second as a justification for the necessity of a defensive nuclear weapons program.

Iran is engaged in a form of oil diplomacy, whereby it is forging economic relationships with Russia, India and China which would likely make it impossible to get any authorization for sanctions, let alone for military action, from the UN Security Council. Even if military action were authorized it is not clear how it could be effective - the U.S. is strained already in its occupation of Iraq, and no other nation is up to the task of invading, disarming, and occupying Iran (even assuming a nation were willing). Unfortunately, I am not sure that there is an answer to the problem of Iran's developing nuclear weapons.

Oh No... Here Come the Bloggers

Apparently corporate America is running scared... from bloggers:

Web logs are the prized platform of an online lynch mob spouting liberty but spewing lies, libel and invective. Their potent allies in this pursuit include Google and Yahoo.

Forbes shares with us the story of a businessman whose company suffered a drop in its stock value following its loss of an important potential contract with Nestlé... but, of course, the drop is attributed entirely to the work of one evil blogger. They also repeat this utter nonsense:

Even some bloggers see the harm they can pose. "Some people in the blogosphere are too smug about free speech. They'll say it's okay if people get slandered or if people make up fake stuff because in the end the truth wins out," says John Hinderaker, a lawyer in Minneapolis, Minn. who helps run a right-wing blog, Power Line, which hounded CNN's Jordan and CBS anchor Dan Rather. "But I don't think that excuses it."

When Hinderaker published an item saying left-wing bloggers should stop assaulting a White House reporter alleged to have worked as a gay prostitute, his blog brethren went on the assault, publishing his phone number at work and prompting a deluge of harassing phone calls and e-mails. "My secretary was crying" because callers kept swearing at her, he says. "Then we started getting calls at the house. My wife wanted to hire a bodyguard."

Who is the loser who posted Hinderaker's office number on the Internet? Who do you think?

While Forbes does an atrocious job covering the story, such that one might wonder if there is actually a story to report, I had been thinking about the effect of blogs on corporate America. If I ran any sort of company with a major public profile, I would have somebody on my public relations staff actively monitoring weblogs (and other Internet sites and forums) for posts about my company, and would be proactive about responding to any negative rumors or innuendo. Forbes makes some suggestions as to how companies should respond to negative attacks on blogs... some of which seem likely to backfire.

Have a Dowd Paul Krugman Christmas!

What are blog readers searching for this hour? According to Technorati:

1. Dowd - Apparently people are searching out her latest column, which (from the stuff that's not behind the firewall) is an update on last year when she "let her brother" (a Republican) write the bulk of the column for her.

2. "Paul Krugman" - The other Times columnists are "hit and miss", but you can always find Paul Krugman's latest column through technorati and Google's blog search.

3. Christmas - You would almost think it was Christmas Eve....

4. James Dungy - Which reminds me of my post of last evening. It's Christmas, it's tragic for his family, leave it alone... at least for a few days. Okay?

5. Wafa Dufour - Apparently the niece of Osama Bin Laden and an aspiring professional singer / Paris Hilton wannabee.

6. Intelligent Design - Give me a break.

7. Luciana Salazar - Apparently for some people it's not Christmas if you don't get some Argentinian cheesecake.

8. Apple - Apple what? Apple pie? Apple iPod?

9. Mu Zimei - Apparently China's equivalent of Paris Hilton. (Distiction: I had heard of Paris Hilton before today; Similarity: I wish I was still blissfully ignorant of both of them. Along with the Argentinian, um, model and that Bin Laden niece....)

10. Brokeback Mountain - Oops. Refreshing technorati shows that Brokeback Mountain was just replaced by "Sarcozy". Neither being what I would pick for Christmas entertainment.

Apparently, I don't have my finger on the pulse of American society.

Too Much Information?

I recently, on a whim, Googled the name of a law school classmate - and the first result was information on his disbarment. A few days ago I Googled the name of a lawyer I hadn't seen in a few years, and the first hit was a newspaper article implicating him in a financial scandal. Not too far down below was information about his three year suspension from practice. Ouch. (But it's probably good for the public to be able to quickly find information on attorney discipline.)

In response to a weblog post questioning whether the author of a newspaper editorial was a real person, Google not only produced the person's real name and background, but a lot of information on his family tree, his sister's obituary, and some other stuff that also seemed rather personal.

It's pretty amazing how much information is now distributed online, and easily obtainable through Google. And a bit scary sometimes.

George Will Gets It Right

I have to make sure I'm picking the right adjective....

Whoring, intr v., "To compromise one's principles for personal gain."

But if you don't have principles that's not quite right... Oh yes, here we go....

The Washington Post gives Bush Administration shills William Kristol and Gary Schmitt the opportunity to argue why the President should feel free to ignore the Constitution:

A U.S. president has just received word that American counterterrorist operatives have captured a senior al Qaeda operative in Pakistan. Among his possessions are a couple of cell phones -- phones that contain several American phone numbers. In the wake of Sept. 11, 2001, what's a president to do?

Well gosh, golly gee... a hypothetical Al Qaeda operative is picked up, his hypothetical cellular phones contain hypothetical phone numbers of American citizens within the United States, and (although they can monitor the numbers for up to 72 hours under FISA before submitting a back-dated application for a warrant) a hypothetical Administration official fears that their hypothetical application might be denied for hypothetical reasons, which might cause them to lose hypothetical evidence. What is a President do do, other than flout the Constitution?

George Will outthinks them both, even before you get past the headline of his editorial - "Why Didn't He Ask Congress?"

Out With The Laundry

Today's Washington Post, in an unsigned editorial, complains about money laundering charges:

It may be, as the judge found, that the money-laundering statute technically applies in this situation, but its use here strikes us as odd. Ordinarily, money laundering would be taking criminal booty -- say, drug money -- and finding a way to transform it into legitimate-looking funds. In this case, though, the "proceeds of criminal activity" -- the corporate-funded campaign checks -- are the same as the alleged criminal activity itself.

Doesn't this boil down to an argument that you should never be able to be convicted of money laundering in relation to a purely financial crime (e.g., a ponzi scheme or 'sale' of non-existant real estate) because the "'proceeds of criminal activity' ... are the same as the alleged criminal activity itself"?

One of the peculiarities of modern interpretation of double jeopardy is that we frequently see what would seem to be a single criminal act split into parts, with each part subject to separate criminal charges. Drive a truckload of drugs across a border? That's separate offenses of importing drugs and possessing drugs. Forge a check and deposit it at the bank? That's separate offenses of forgery and "uttering and publishing" - hey, and if you deposit the check by mail, we can get a few more charges out of that as well.

Is It Torture?

Given that some people have a great deal of trouble deciding what is torture and what is not, I propose the following test:

If you wish to assert that something is not torture, you subject yourself to the technique at the hands of those who disagree. If, after a standard application of the technique, you continue to insist that the technique is not torture, you win! If you confess that it is torture, even if just to get things to stop, you lose.

This may be a suprisingly fast process:

Water Boarding: The prisoner is bound to an inclined board, feet raised and head slightly below the feet. Cellophane is wrapped over the prisoner's face and water is poured over him. Unavoidably, the gag reflex kicks in and a terrifying fear of drowning leads to almost instant pleas to bring the treatment to a halt.

According to the sources, CIA officers who subjected themselves to the water boarding technique lasted an average of 14 seconds before caving in. They said al Qaeda's toughest prisoner, Khalid Sheik Mohammed, won the admiration of interrogators when he was able to last between two and two-and-a-half minutes before begging to confess.

The larger question is whether you get valid information through torture, or torture-like techniques (if you prefer not to use the T-word). My point is not so much that you need to admit that these techniques constitute torture - it is that you would admit that they were torture, often within a few minutes of their onset.

Do you think Khalid Sheik Mohammed gave a full and truthful account of everything he knew after one round of waterboarding? Or do you go for round two, round three, and additional rounds until you are sure? And are you sure because the story he gives you is consistent? Or are you sure when he starts telling you what you want to hear?

The rational torture victim is probably a lot like Dustin Hoffman in Marathon Man - "What do you want me to say so I can get out of this?":

Christian Szell: Is it safe?... Is it safe?
Babe: You're talking to me?
Christian Szell: Is it safe?
Babe: Is what safe?
Christian Szell: Is it safe?
Babe: I don't know what you mean. I can't tell you something's safe or not, unless I know specifically what you're talking about.
Christian Szell: Is it safe?
Babe: Tell me what the "it" refers to.
Christian Szell: Is it safe?
Babe: Yes, it's safe, it's very safe, it's so safe you wouldn't believe it.
Christian Szell: Is it safe?
Babe: No. It's not safe, it's... very dangerous, be careful.

(A more personal account of torture and its impact on society is available in the Washington Post.)

Rolling the Percentile Dice

I'm all for taking care before violent criminals are released from incarceration, and that concern is heightened where they have killed and may kill again, but what should I make of this:

Why was Hanson considered for release when he had apparently been evaluated in prison as being an inmate with a 91% chance of reoffending and an increasing tendency towards violence?

By what scientific method, dare I ask, can one establish such a specific probability figure?

So His Silence Means... Guilt?

President Bush is famously tight-lipped about the criminal acts of his underlings. Even when it seems obvious that he knows or could easily determine the culprit's identity, has promised to take strong action against the culprit, and an inictment has been issued, he insists that we must reserve judgment.

Except, as it seems, where he believes the suspect is innocent.

Compare:

On Wednesday, Bush was asked on Fox News Channel whether he believed DeLay was innocent, and he replied, "Yes, I do."

Spokesman Scott McClellan said Thursday that Bush was exercising his "presidential prerogative" in commenting on the case.

Contrast:

Yesterday, Wilson delivered a speech in which he said Rove should lose his job regardless of whether he knowingly used Plame's name or revealed her CIA connection. "This is a firing offense," he said.

White House spokesman Scott McClellan rejected that idea and said Rove was at work, engaged in meetings and enjoying Bush's full confidence. McClellan said the White House will not comment on the leak because the investigation is ongoing and it does not want to prejudice the Libby case.

Oh, no... They certainly wouldn't want to do that....

Fighting Plain English

I was making revisions to another lawyer's work today, and was reminded of the proliferation of articles and practice guides which encourage the use of plain language when drafting legal documents. While many lawyers write clearly enough... stepping into character:

In the instant case, were said lawyer referencing an biographical article about Professor Edward Said, said lawyer might be inclined to reference said article with, "Said article on Said said clearly what Said said about said circumstances."

And he wouldn't see a problem with that.

Reefer Madness Redux

In the U.K., it seems that a growing number of people (including some who used to deem marijuana relatively harmless) are embracing the notion of reefer madness. The idea is that marijuana is more potent than ever, and as a consequence it actually is making people psychotic. The evidence boils down to anecdote, and correlation as causation. The potency argument:

Much of the alarm is due to the fact that the drug is not the same as it used to be, and the very high content of active ingredient in skunk compared with more benign weed. Called tetrahydrocannabidinol or THC, it is the main psychoactive ingredient in cannabis, the bit that makes us high. Skunk tends to be grown hydroponically (without soil), indoors and without natural sunlight, and whereas 30 years ago an average joint contained about 10mg of THC, a joint of skunk today might contain as much as 300mg.

Except... I happen to know a few people who might be deemed "aging hippies" (and who still, um, dabble). When this notion of declining potency comes up in conversation, to date every single one has thought the notion ludicrous, and has insisted that pot was much more potent in the 60's. (Any other aging hippies out there? Add your thoughts in the comments.)

It is interesting to read that the critics of this new potent marijuana, even those who argue that it causes psychosis and perhaps schizophrenia, support legalization.

Interestingly (and it might come as a surprise to the Daily Mail), there is one point on which almost everyone I spoke to agrees: it would be much better if cannabis were legalised. At present, consumers cannot be sure about the strength of the stuff supplied by dealers. If they could buy it over the counter, the THC content clearly displayed like alcohol proof on a bottle, they would know what they were getting. Prohibitionist Jeremiahs warn that punters would inevitably go for the high-octane stuff, but the argument does not follow: given the choice, we do not all opt for brandy rather than beer. Meanwhile, few mental-health professionals see the point of criminalising already vulnerable people.

This is qualified with the suggestion that the legalized pot should be regulated in its THC content. (Regulate it down to 10 mg, though, and I am quite confident that my aging hippy friends will continue to find alternative sources....)

Of Mice and Men

I've been having a peculiar problem with my computer mouse, which causes the mouse to jump suddenly to a random corner of the screen while I am scrolling. This happens more frequently when the computer is performing CPU-intensive tasks, which led me to believe it was a hardware or driver problem. When this phenomenon kept repeating as I was trying to highlight text I was editing in a long, complext document (which results in my suddenly selecting several pages of text instead of a few lines), I decided to research the problem more deeply than I have in the past to try to pinpoint a cause.

I found some relatively obscure discussions of the technical problems which can cause this problem, with talk of reinstalling drivers, adjusting the mouse settings, updating the BIOS, reinstalling Windows, or junking the mouse. Occasionally there was a reference to using an uneven surface under the mouse, but I was using a clean Dell mousepad which I obtained years ago when I purchased the computer. The overall tone of the advice was "You'll probably have to throw away the mouse and buy a new one." Which wouldn't be so bad, except for the fact that I only recently purchased this mouse to replace one that was dying of old age.

And then I found a practical joke:

The optical mousetrap is a gag device designed to torture your coworkers.

It's a small clear sticker that affixes to the optical pickup on any optical mouse. Embedded in the sticker are small etchings designed to diffuse the light and cause the mouse to go crazy and fly off to the corner of the screen.

Coworkers go crazy trying to figure out what's wrong with their mouse and finally give up and get another one from the supply room. Luckily, the stickers come in a 10 pack. Fun for everyone.

I think for a moment.... My Dell mousepad has an interesting texture built into its surface, presumably to make a mechanical mouse roll more smoothly. So I took a sheet of plain white paper, placed it over the mousepad, and... problem solved.

I wonder how many other Dell users upgraded to optical mice, and are frustrated by Dell's inadvertent practical joke?

Looking For Villains In All The Wrong Places

Recently, Nicholas Kristof wrote a column, The Hubris of the Humanities, in which he quite rightly pointed out that the U.S. is losing ground in maths and sciences.

But put aside the evolution debate for a moment. It's only a symptom of something much deeper and more serious: a profound illiteracy about science and math as a whole.

One-fifth of Americans still believe that the Sun goes around the Earth, instead of the other way around. And only about half know that humans did not live at the same time as dinosaurs.

In this society, which for generations has venerated the high school athlete and demeans studious ("geek", "egghead", "nerd", etc.), who is to blame for this?

The problem isn't just inadequate science (and math) teaching in the schools, however. A larger problem is the arrogance of the liberal arts, the cultural snootiness of, of ... well, of people like me - and probably you.

Now I admit to having a liberal arts education, which (as you would expect) included extensive study of the natural sciences and math. Kristof conflates the liberal arts with the humanities.

Leaving aside his careless choice of words, I can agree with Kristof's overall argument that our society would benefit from greater scientific literacy. Kristof's examples, though, seem designed to advance his notion that it is experts in the humanities who are somehow at fault for this nation's poor grasp of science:

What do I mean by that? In the U.S. and most of the Western world, it's considered barbaric in educated circles to be unfamiliar with Plato or Monet or Dickens, but quite natural to be oblivious of quarks and chi-squares.

* * *

In terms of the skills we need for the 21st century, we're Shakespeare-quoting Philistines. A year ago, I wanted to ornament a column with a complex equation, so, as a math ninny myself, I looked around the Times newsroom for anyone who could verify that it was correct. Now you can't turn around in the Times newsroom without bumping into polyglots who come and go talking of Michelangelo. But it took forever to turn up someone confident in his calculus - in the science section.

Apparently, those Times employees confident in their calculus did not include Kristof, hence his need for verification. Which isn't a surprise as, "math ninny" or no, if you don't exercise your calculus skills they become rusty. And Kristof concludes,

But there's an even larger challenge than anti-intellectualism. And that's the skewed intellectualism of those who believe that a person can become sophisticated on a diet of poetry, philosophy and history, unleavened by statistics or chromosomes. That's the hubris of the humanities.

This isn't the first time that Kristof has invented a soft target at which to aim his barbs. I am wondering - can he identify even one person who believes "that a person can become sophisticated on a diet of poetry, philosophy and history, unleavened by statistics or chromosomes"? And upon what basis could he possibly suggest that this fictitious faction poses a greater danger to scientific literacy than anti-intellectualism? Perhaps it's all the sports dads suddenly pulling their kids off of the football team to study Monet and Michelangelo.

Kristof perhaps takes his call for scientific literacy beyond what I would deem necessary. I could devote the necessary time to refresh my math, calculus, physics, and other science knowledge and skills, or even to expand them. But realistically, there is not much call for calculus in my daily activities, and when there is I find it more efficient to refresh my memory in relation to the specific need. My knowledge of science and statistics provides a framework which I attempt to use when processing information, even as some of the specifics become hazy. I would like to see our society embrace the maths and sciences as an important part of all levels of education, and to provide both opportunity and encouragement to kids who are inclined toward the maths and sciences.

Wasting Time At Work

How much time do workers waste at work? According to Microsoft, it's two days per week:

In the U.S, the biggest productivity pitfalls were procrastination - picked by 42 percent of those polled - lack of team communication (39 percent), and ineffective meetings (34 percent). Global numbers were quite different. There, procrastination got 29 percent of the vote, while unclear objectives and ineffective meetings garnered 32 percent.

More than a third of the hours down the tubes are those wasted in meetings, said American respondents, who estimated that they spent 5.5 hours in meetings per week, with 71 percent of those workers feeling meetings are unproductive.

Ah yes... The glorious meeting. I once worked at an organization which appointed a committee to pick the decor for the restrooms. They met for a couple of months, looking at various wallpaper and wall covering samples, and after many hours of diligent work... picked beige paint and a 6" wallpaper accent around the ceiling. But then, the meetings on more weighty issues never seemed to produce any meaningful results.

According to CNN/Money, it's more like 1.5 days per week... based upon a more management-friendly definition of wasting time:

By "wasting time," all that's meant is time spent on the job not doing actual work, said Bill Coleman, senior vice president of Salary.com.

(Tempting though it may be to include, it doesn't mean all that time you spend in pointless meetings or carrying out inane requests from the boss.)

Apparently we waste an average of 2.09 hours per day, when managers expect us to waste only one.

By we, of course, I mean you. If you look at the number of hours attorneys bill in a typical week, you will immediately recognize that lawyers don't waste time and maintain peak productivity even when working 70 hours per week. (Bill padding, you say? No, really - it's our exceptional productivity.)

Judicial Activism, or Asleep On The Bench?

From the ACLU of Michigan (emphasis added):

After exhausting all avenues in the Michigan courts, the American Civil Liberties Union of Michigan announced today that it has filed a federal lawsuit on behalf of a Catholic man who was criminally punished for not completing a Pentecostal drug rehabilitation program.

* * *

Unbeknownst to Mr. Hanas when he entered the program, one of the goals of Christian Outreach was to convert him from Catholicism to the Pentecostal faith. He was forced to read the bible for seven hours a day and was tested on Pentecostal principles. The staff also told him that Catholicism was a form of witchcraft and they confiscated both his rosary and Holy Communion prayer book. At one point, the program director told his aunt that he “gave up his right of freedom of religion when he was placed into this program.” Mr. Hanas was told that in order to complete the program successfully he would have to proclaim his salvation at the altar and was threatened that if he did not do what the pastor told him to do, he would be “washed of the program and go to prison.”

After seven weeks of receiving no drug treatment whatsoever and only coercion of the Pentecostal religion, Mr. Hanas left Christian Outreach. Though he objected to a pervasively religious rehabilitation program, he was denied reinstatement to the drug court program.

The judge acknowledged that Mr. Hanas had been prohibited from practicing his religion, that Christian Outreach was a religious program, not a treatment program where there were no drug or alcohol counselors on staff, and that Hanas was prohibited from attending Alcoholics Anonymous (AA) meetings.

Nonetheless, the judge determined that he did not satisfactorily complete the program, removed him from the Drug Court and sentenced him to jail for three months and then to boot camp. It was only after his release from boot camp that he finally received drug treatment at a secular residential rehabilitation program.

What a wise use of our "faith based" tax dollars.

Dems and the Center

I've been reading lots of commentary lately on how when you poll people at the political center - so-called swing voters - they tend to align themselves with the Democrats on social issues, but that doesn't stop them from voting Republican. Much of the commentary concludes that security is the most singificant factor in causing swing voters to choose a "strong on defense" Republican, even though they don't agree with that candidate's social agenda. I do think that the stereotype of Republicans as being better on defense and "law and order" issues helped Bush win reelection, but what about the first time when the nation was pretty evenly split between the candidates?

I think Bush's self-portrait as a "compassionate conservative" who believed in "a hand up, not a handout" was a significant factor in his first victory. His campaign recognized that voters did not support a hard-right social agenda, so they depicted Bush as advancing policies of individual responsibility and opportunity. I think that resonates with voters. I believe that many swing voters and low-income wage earners view the Democrats as a party which gives handouts to people they see as the undeserving poor, and will perpetuate and even expand upon "welfare" programs they see as a wealth transfer from them to the poor. Recall Reagan, who is credited with "shifting the middle" and his tales of the welfare queen who drives a Cadillac? That perception still resonates, particularly with people who live from paycheck-to-paycheck.

It even resonates with some who are the beneficiaries of welfare programs, such as food stamps, Section 8 housing subsidies or Medicaid. Some don't see the benefits they receive as welfare, and some may believe that they pay for those benefits through their taxes. But some probably feel that that it's okay to take a subsidy if you're working (the proverbial "hand up"), but not to get a hand-out if you're not. Some fear a tax increase.

Bill Clinton's popularity was not driven by the notion that he was a hard-as-nails Republican who would increase our military might. He was frequently depicted as having avoided the draft, of being weak on military, and even of weakening our defense capabilities. But his welfare reform was pretty conservative and in the eyes of many was not-so-compassionate. Yet the reforms resonated with voters to the extent that the Republican party frequently accused Clinton of stealing their ideas. When was the last time one party accused the other of "stealing" an idea that was a loser with the voters?

Diagnosis of Autism

According to the London Guardian,

Detailed snapshots of the children's brains showed that networks of nerves thought crucial for understanding other people's emotions and intentions did not spark into life at the appropriate moment. The more severe a child's autism, the less activity the circuits showed.

Let's hope this discovery leads to innovations in treatment.

"Make Mine Unleaded"

I recognize that a common joke at a coffee shop is to ask for "unleaded" instead of "decaf", but apparently George Will takes that quite literally....

Because the average price of a gallon of gasoline has swiftly plunged from the post-Katrina high of $3.07 to $2.15 (compared with $185.60 for a gallon of Starbucks espresso), the recurring populist fever that always follows oil price spikes has broken. It will be back.

So is he suggesting that we economize by drinking gasoline instead of Starbucks espresso, or is he pioneering a line of cars that run on coffee? [Insert smiley here for the sarcasm-impaired.]

Walmart, Walmart, Walmart....

Over at TPMCafe, Matt Yglesias posted a rather dismissive comment about criticism of WalMart which, needless to say, inspired reaction.

This [notion of WalMart's payroll as subsidized] is a genuinely perverse way of looking at the situation. Here's what's happening. You have some people. Once upon a time, they didn't work for Wal-Mart. Then they decided to take jobs at Wal-Mart. Presumably, their previous jobs were worse, or not jobs at all. Wal-Mart jobs don't pay very much money, which makes many of the people who work at Wal-Mart poor. The government, at the behest of decades of liberal agitation, runs programs that provide services or money to poor people. And now liberals are supposed to complain that this amounts to Wal-Mart getting subsidies?

I think his analysis is simplistic, but it did inspire an interesting response from Mark Schmidt about a trend away from a minimum wage (which would be paid by business) to subsidies for low-wage employees (which are paid by our taxes). Personally, I don't think this is a WalMart question - lots of employers pay their employees poorly, with WalMart standing out due to its size - but instead reflects the outcome of public policy decisions which attempt to ensure a basic standard of living for wage-earners, but which doesn't require corporations to bear the full cost of that public policy.

If minimum wage is $5.15/hour, and WalMart pays a typical entry level employee $7 or $8 an hour (pulling numbers out of the air here), it is difficult to argue that the minimum wage is forcing up the cost of labor. But if you were to raise the minimum wage to $7.50 per hour and also mandate reasonably comprehensive, employer subsidized health care, you would significantly increase the cost of labor. The subsidies we give to low-wage workers allow "pro-market" politicians to pretend that they are letting the market set wages, allow "labor-oriented" politicians to pat themselves on the back for protecting low-wage workers, and... well, beyond the political convenience, they aren't really pro-market and probably aren't the most efficient subsidies we could offer if we truly wished to improve the lot of low-wage workers and their families. Like so many things in our society, we create an ugly kludge of policies that perhaps best serve politicians by allowing all of them to declare victory, and to give themselves glowing self-appraisals in the letters they send to their constituents.

If you have ever been a manger in, say, food service, it would be difficult to leave the situation without recognizing that there are people in the job market who will never rise above the lowest levels of employment. Some are capable of more, but either by poor work habit or by preference don't rise through the ranks. Some aren't capable of more. Some, you wonder how they managed to successfully complete the application (and, actually, some don't). We can't pretend that corporations will take care of these low-end workers - WalMart's factories in China (or heck - the history of the industrial revolution, or the story of Triangle Shirtwaist) tell us how it would treat its employees here if given the chance.

The population which always rises to the defense of corporations would use the same line, no matter what the circumstances for the workers - "They decided to take jobs at a sweatshop. Presumably, their previous jobs were worse, or not jobs at all." Anything above penury is an improvement, and is thus justifiable. To some, it seems like profits are a moral imperative, people an afterthought.

At its heart, the question of how we treat these workers - whether through education, minimum wage, subsidies, other anti-proverty programs - helps define our culture and society. Are we truly committed to providing opportunity for all, or do we prefer to give lip service to equality while instituting or perpetuating policies which perpetuate or even expand the population of workers who will never rise more than a few inches above the entry level.