Superdelegates and democracy

The Primary Contest Rules

I hate to get embroiled in a topic that is so ancillary and overrated, but when has that ever stopped me? I keep hearing about the supposed problem the Democrats have with deciding their nominee, to the point of hearing on the News Hour tonight that there is no principled way the Democrats will be able to select a nominee because both candidates will have strong claims, such as Hillary Clinton's having "won more big states" and Barack Obama's having "won more delegates" (each a presumed outcome that has not yet come to pass because the nominating process is not yet over). Other factors offered are most pledged delegates, most states, most popular votes, and of course, most meritorious candidate. Hmmm. How can one possibly resolve this conundrum?

Well, as an attorney, I might instinctively be drawn to the rules, which say the most delegates wins, and mentions nothing about big states or any of the other factors. As I have also noted, the whole idea of states won is all or mostly just an arbirary media invention. The states are not won or lost except to the extent they send any at-large delegates. I don't actually know of any states that do this, but I don't want to presume out of ignorance that the idea is completely meaningless or fabricated, since it might actually exist as a minuscule factor under the rules.

The argument has been made that following the rules, and thus not abiding strictly to measures like poplar vote, is undemocratic. That's true, at least in some technical sense. But I would not jettison the rules as undemocratic in the middle of a contest unless the undemocratic nature of the rules were really severe. Otherwise, one would trade a small evil for an even greater one: abandoning the order of rules altogether, changing the rules in the middle of the game, and raising the spectre, which would taint the entire process, of whether the criteria ultimately chosen at the end of the day to select the victor were not actually reverse-engineered to produce the desired result.

I think the idea of seating Michigan and Florida delegates on the directive that they vote 50/50 for Obama and Clinton, or vote in the rough proportion of the final outcome among the remaining delegates, is absurd, as is the notion of pressuring superdelegates to vote along similar lines. The short version of this standard would be, you can vote as long as your vote does not count.

I don't think there's any excuse for Michigan and Florida to participate on the basis of the "contests" they've held so far, which did not reflect anything close to the will of Florida or Michigan party members or eligible voters. These were meaningless non-contests, because there was only one major candidate for the nomination contesting them. Have a do-over, or forfeit the seats. Again, the rule may have been dumb, but it would be worse to change the rules after the results are in.

On the power of the superdelegates, I don't think it's by any means antidemocratic that they should get to vote and potentially shift the result from that which would come from a vote conducted exclusively among the pledged delegates. That's what having a vote means: that you can potentially influence the result. One could say against any bloc of voters: how dare you vote against the majority selection of the voters outside your bloc? The answer is, because our votes should count. Superdelegates' votes should count. You can argue about how much, but it is not an undemocratic mechanism to have a set of trusted party figures exercise a role in the outcome. There are two reasons for this:

First, this is not a complete national polity, but a political party, which is like a private club, which has an internal heirarchy and a set of gatekeepers. If you don't like what the party stands for or how it operates, you always have the solution of starting your own party. (In contrast, if you were disenfranchised from a general election, you could not just start your own country, at least not without a war.) The party would rather see some people go than participate, anyway, because they are not sufficiently bound to the party, do not share its interests, and may vote to defeat its interests, which is why some places have closed primaries, and will not let Republicans express a binding preference on whether they'd rather see Clinton or Obama in the general race.

Second, even if the nominating process were not in the domain of a private voluntary association, there is some rationale to letting some delegates cast votes without being bound by the results of primaries and caucuses. This is because those delegates will have some advantages over the primary voters. Not only is their dedication to party presumably more reliable because of their longstanding affiliation and contributions, and their interests in its success correspondingly higher, but they have advantages of expertise, and hindsight over the entire election process, which is to say, a superdelegate from Iowa might have a viewpoint closer to what Iowan voters overall express on nominating day than the voters themselves did way back on the day of the Iowa caucuses, when a third were still voting for Edwards. New Hampshire democrats might now favor Obama who previously used their votes to garner delegates in a different primary for Ron Paul.

The votes of pledged delegates have their own weaknesses from a democratic perspective because viewpoints change, new facts and arguments emerge, problems facing the nation evolve, and political options narrow. Nothing in the mechanism of election was so pristine anyway. They have any number of problems ranging from disparate access to the polls, unreliable voting machines, and disproportionate exposure to the messages of the candidates who had by then raised more money from large contributors.

If the unelected elites of the party had no mechanism of accountability, and accounted for more than 50% of the power over the nominating decision, then one could certainly argue that their disproportionate voice was undemocratic. But where they stand poised to decide the outcome only because the pledged delegates are breaking close to 50/50, meaning that neither Obama nor Clinton is the decisive choice of the party, then certainly recourse to the party leaders at least as legitimate as flipping a coin. And many, albeit not all, have some direct accountability to voters because they continue to hold elected positions or future electoral ambitions, which they would not want to jeopardize by going against their constituencies.

Of all the problems in our democratic processes, the use of superdelegates is one of the least pressing. Certainly, the notion of changing the rules in the middle of the game is much more disturbing, or should be.

The More General Problematology

Electoral systems are of necessity imperfect. On one level, there is simply the mathematical issue of it being impossible to construct a set of rules that will always find the best preference in a multicandidate race. People's potential rankings and weightings of candidates are too complex and may produce conflicted rankings in which no candiate is clearly the optimal pick by any means of calculation.

But in the practical world, it is seldom that the necessary minimum imperfection is even an important consideration, because the real and avoidable problems in voting systems are always so much greater. I once commented that the Communist Party of the USA would be advancing its principles greatly if it undertook a serious study of polyarchy and its defects in the US. (Most people do not know, because the communists are such an insignificant force these days, that they bill themselves as the party of "Bill of Rights socialism" and include a streak of libertarian philosophy that defies the popular expectations still held of a group that continues to honor Lenin and historically had lauded Stalin as well.)

The problems are many and diverse and go well beyond what can be attributed to Diebold.

The first category of problems comes from the representative system of indirect decision making. There are advantages in this system (the specialization of representatives leads to development of greater activity and expertise than could be expected through direct democracy) but it is nevertheless essentially antidemocratic, and its antidemocratic tendencies should be ameliorated as much as possible, but intstead are exacerbated by the existing system. Having a representative rather than a direct system opens the door to poor representation and essentially doubles all other problems by their appearance in two venues: voting on representatives and then on policy. In some cases, the problem is at least tripled because of multiple tiers of representation. For example, the system of setting presidential policy is threefold: voters select electors, electors select a president, and the president sets policy. Unless the president delegates, in which case the connection to the demos is even further attenuated. When representives act on behalf of voters, it intensifies problems of influence because representatives, more than their constituents, may be in fear of lobbies that exercise disproportionate power, or bought off by special interests (a bribe to electors is arguably not even a deficiency, but it certainly is one when an a representative views the harm to his constituents as an externality hence dramatically reducing the cost to the special interest of buying him off). Representatives may grow socially and culturally distant from their constituents and merge to form a nomenklatura class, as is found now in the "beltway."

Another problem inherent in all competative systems, and exacerbated by a rung of representation between voters and issues, is that parties do not equally fight dirty or with requisite intensity. The worst are full of passionate intensity while the ethically immaculate refuse to fight back because it would compromise their standards to do what would be necessary to win. There can be little doubt that the Republican Party, at least on the level of its national representatives (I hesitate to smear the millions of innocents who vote Republican because they fairly have not recognized this pattern), has become the party of graft and knife-fight rules when it comes to their competitive conduct. The unsavory tactics explored by Republicans have included simple kickbacks and virtually open bribery, to physical threats and psychological abuse to enforce party discipline, simply ignoring laws that do not suit them, and lying without remorse. They simply value winning more and past standards of decorum less, and are more willing to resort to threats or actual executions of fillibuster, impeachment, anonymous holds, earmarks, interim appointments, manipulation of rules, and any number of aggressive tactics which Democrats excessively eschew in the vain effort to keep up a nonexistent standard of comity.

Stepping back from policy back to elections, there are various particular other distortions introduced by having layers of elections. The electoral college is a special case, because it artificially overweights small states to no good purpose (there was a reason to mollify Delaware back in 1789, but what possible good in multiplying the voting power of Nevada?), sets an artificial limit on the electors allowed to the District of Colombia, and codifies the disenfranchisment of U.S. dependencies.

Of course, the primary system is another level of decisionmaking between voters and the issues. This one distorts the process by artificially inflating the importance of certain unrepresentative early-voting states. Both the geographic and partisan modes of subdividing the electorate introduce distortions in the process, twisting the course to election through the endorsements of subgroups.

Many of the problems are variations on incumbency power. Those who have the vote already effectively determine who may have and may not be enfranchised. Even though the group of ligible voters for the presidency has expanded to include women, racial minorities, landless white males, and younger adults, excluded groups still include many current and past convicts, minors who would otherwise be deemed competent, the homeless (in practical terms), and resident aliens (who are stakeholders and previously had the franchise in many states). Of course, there are others subject to some form of U.S. jurisdiction or influence but lacking either citizenship or residency. While including such foreigners has obvious considerations weighing against it, from the perspective of democratic theory, it produces a situation where those unfortunate enough to have been born in the wrong place are rendered less powerful over their own affairs through the force of law, and it is not easy to fully justify the extent to which this takes place.

Likewise, those in power set the limitations on even standing as a candidate, most typically by age limits, criminal history restrictions, birthplace, residence, and success in garnering some predetermined level of past or present support. But it is not entirely alien to our system to ban, criminalize, or persecute particular parties or impose religious tests. Even if hurdles set up against third party canidacies are surmountable, the exclusion from debates, free media, and serious consideration by the political class usually operate as an overwhelming counterweight to independent efforts. The winner-take all system, unameliorated by any proportional or cumulative system, amplifies the power of majorities and pushes minorities o the margin, a problem that is vastly amplified by gerrymandering that produces safe seats for incumbent
parties, disenfranchising near-majorites of voters almost everywhere and rendering most local races foregone conclusions after the primary.

Incumbents naturally have the power to reward their supporters by policy decisions, and use their influence in the fields of gerrymandering and manipulation of voter laws. Some formal privileges are awarded by law, such as franking for members of Congress. Incumbents have an automatic advantage in their curricula vitae, and access to media, and, perhaps most important of all, fundraising.

Money is the key factor in elections (even if insufficient to save a Mitt Romney from himself). It's true that no amount of money will sell a horrible candidate to an unwilling public, at least not when there is a slightly less horrible candidate who meets the threshold to participate. But lack of money certainly can, and almost invariably will, effectively doom candidates who would otherwise fly to the top of the pack. Money is used to polish candidates, fund the distribution of the message, and buy top talent in all areas of the science of campaigning. It has an exaggerated effect because the knowledge that it is necessary to success spawns the self-fulfilling prophesy that the unfunded will fail. Because money is selectively available to the rich, the rich have exaggerated influence. Money and volunteer time are the only mechanisms under our current system for persons to express the intensity of their preferences by doing more than voting, but devoting free time to candidates in a society where time is money means that this too is the preferential domain of the wealthy (the modestly affluent may volunteer while the destitute
cannot; the very wealthy, to well remunerated to volunteer themselves, pay others to do it for them).

Most of the remaining distortions in the system arise from the (manipulated) behavior of voters. Part of this is whether they vote or not, since turnout ranges from a bit over half in a successful election, to a meager fraction in a small, off-year contest. Turnouts of less than one percent are not hard to come by in certain races in certain places. The main reason people do not vote is that they have no impression that their vote carries meaningful influence. Polls can be a culprit if they suggest the election will not be close. Some eligible electors are permanent non-voters; others are potentially persuadable, but the preliminary screening process has effectively prevented anyone who might appeal to them from presenting themselves. The election contest may manifest itself as something so overcomplicated or simply repellent that participation does not commend itself as something noble or profitable. Those otherwise interested are selectively dissuaded by legal threats, harassment, intentional misinformation, caging schemes, registration or identification requirements (and historically, poll tests and taxes), faulty election machines, and voter list errors. Inconvenience is a significant factor, and not evenly distributed. Distance to some polling places, the length of time required when there is a long line or shortage of ballots, and the fact that elections are held only on a single day, a weekday, which is a workday and not a holiday, work to deter less motivated voters, those with mobility problems, or those who simply need every work hour they can find. (Voter fraud and inadvertant unqualified voting may create a gross overvote, as can counting defects. But the failure to perform hand recounts or examine and count provisional ballots, generates a much larger undervote in most cases.)

And voters cannot only be deterred from exercising the franchise, they can, with some success, be manipulated into mis-exercising it. Even without the effects of active misleading or charismatic demagoguery, threats of spoilsport opposition recalcitrance or external attack, voters are often simply not apt to vote their interests or values. To operate as an effective mechanism of transmitting the popular will to the motor center of the state, elections must rely on electors whose choices of candiates or policies reflect a sound means toward their desired objectives. They must understand the election as more than a sport, in which they select recipients of their votes as they would choose the brand crafted to project image closest to their personality. They must understand the powers and requirements of the office, focus on the most critical issues and capabilities, access reliable information, detect and reject lies, and understand their own desires and how to achieve them. Even when voting on issues, too often, they are misled to acting entirely on perceived self interest, abandoning their other values, or worse, a acting on competitive impulse to spite others.

So after all this, I guess I've managed to write about something more substantial than the superdelegate thing after all. At least, it's a first approximation of a summary.

The failure of the Cuban exiles is nearly complete

With news that Castro is stepping down, it's well to note what his adversaries have achieved in 50 years of opposition. They've made themselves obnoxious to two countries. They've wagged the dog as a lobby, distorting and damaging US foreign policy, squandering our goodwill, resources, and opportunities for trade. They've kept Cuban families apart, brought violence and terror into the exile community, placed a wedge between generations, stifled remittances and stimulated deaths at sea from crossings made illegal by the US refusal to grant visas. They've stymied cultural and professional exchanges, and weakened human rights on both sides: therough the travel ban stateside, and by stimulating and helping justify repression in Cuba. More than anything they've impoverished Cuba by the useless blockade. They even had their role in priming the world for a World War III that nearly commenced during the Missle Crisis.

In exchange for all this loss, they've managed to promote a few bigshots, place Miami's other ethnic groups under a corrupt exile regime, and make Miami an international haven for terrorists, generals and dictators from the whole hemisphere.

But Castro, he was never weakened. He is more lionized now in the Americas than ever. The success of his regime in converting masses of poor farmers into skilled but underpaid professionals, while holding off a superpower just offshore, and intervening to decolonialize Africa, hence keeping the island afloat, exporting hope and rocketing national pride, has earned him a permanent place in the pantheon of heroes for the Western and Southern hemispheres. He has survived, perservered, prospered, and lived to see the Continent flourishing with figures like Chavez, Morales, Lula, and Ortega in most of the Americas. Colombia and Paraguay are virtually alone standing against the trend. Castro retires without having been assassinated or captured.

The point is: not what the exiles in Miami intended. So their message today is, we have to keep up our efforts because nothing has changed. Logical if the policies had succeeded so far. Utterly delusional in reality. For 50 years policies intended to oust Castro, end Castroism, and reverse the Cuban Revolution have done nothing of the sort. Maybe 2059, when we mark its centennial, they will reassess.

Just like a real court

I have not looked lately at the rules created under the Military Commissions Act to conduct trials for the 9.11 accuseds. I do remember, though, that the original executive order appeared to leave open the prospect that George Bush could personally order the executions of anyone tried by military commission regardless of the verdict. Yes, it said that he had the power to issue judgment notwithstanding the verdict of the commission, and did not limit that to clemency for those found guilty. He could kill people cleared by judicial process, initiated in the first place by his own finding. It may have been the single most obscene order ever issued by a U.S. president, amid stiff competition.

At any rate, it is clear that the Pentagon has sent out its talking points memo to all the spokespersons speaking on behalf of the military commissions and there is only one talking point: this is just like a real trial. Look, there's a judge. There are rules. There are burdens of proof and objections and stuff like that. There are tables and chairs just like in a real courtroom.

I sit and listen to these guys and I think: there are rules just like in a real trial (just different rules), and objections (only difference is the judge rules differently on the objections), there's a verdict just like in a real trial (only difference is, this verdict is always guilty). Like the rules themselves make no difference beyond the broad strokes?

I know some of the protections are really important: there's a presumption of innocence (odd, though, that you can hold a person for six years and torture them while presuming them innocent), the state has the burden of proof by a reasonable doubt (but I wonder if that will mean the same thing as in a real court). The real problem is that there's no such thing as your basket of rights being half full. You have to eliminate every possible means for the prosecution to unfairly screw you, or they just pick another way. It's like setting to sea in a boat with a big hole in the starboard bow and saying, look, it's just like a real boat, it's got an intact portside hull and everything. Wink, wink, see you at Davy Jones' locker.

The Press Role in Legitimacy

Continuing thoughts on the local news and what it's doing to us rather than for us. Updating my post from yesterday, one of the things that annoys me is that the standard for an "investigative" report is to uncover a fact or two, construct an argument around them, and apparently not bother to even ask, much less answer, any of the fairly obvious relevant questions about them. In the legal field, we learn to ask lots of questions. One thing I learned early on is that it is often profitable to ask even apparently irrelevant questions, because they turn up answers concerning what Rumsfeld called unknown unknowns: things that you didn't even consider even though you were trying to exhaustively go through every potentially relevant thing.

The media needs to attack the government for being venal and stupid when it is venal and stupid, but it also needs to shore up the legitimacy of our institutions when they serve the common good and come under attack from venal and stupid arguments. The test should not be pro- or anti- government, but pro-smart, pro-wise, pro-moral. Not that their brand of wisdom or morality should be imposed, but questions can be raised, and they should be raised in a manner that allows for some even-handed discussion and not loading towards a predetermined answer.

Legal reporting tends to be bad. A lot of reporting is simplistic, shallow, and confused. Some policy reporting is the same way. Is it bad law that foreigners held in Guantanamo are ruled to lack the rights of "the People" under the Constitution while corporations are persons? Maybe, but let's hear the rationale for those rulings. There is almost always some good reason for the quirky things the Courts do (but not always). The reasons need to be explicated because most of the time that will shut up critics quickly, and on the other occasions, it will expose the existence of rules that fundamentally lack a reasonable purpose. Why is there a residency requirement for local schoolteachers? I can speculate as to what some of the reasons might be. I have not heard any of them during the recent reporting on the issue. I suspect someone more knowledgeable about the topic could tell me if those reasons were valid or not. They might have some horror stories about past problems involving nonresidents. It's true that housing patterns have changed and that residency requires something that was once more common than it is now, after so many people have fled the city. I can see the city wanting to keep this population. I can see it wanting teachers who are connected to the students and parents through residence in a shared community. I can see it being used as a back door to introduce more minority role models without a racial quota (and this would be a portentially more accurate mechanism because the line would not be purely race but rather shared community). But I'm not an expert. I just know that when I give a second's skeptical thought to the reporting I see, I instantly generate questions about potential explanations that are not even asked.

I guess I should be glad that the local news is reporting on local elected officials and local policy choices. I just wish the focus were not on internet usage in one case and just so complacently uninquisitive about the real issues in boh cases.

McCain, Experience, the Campaign, Iraq

Briefly, McCain, I don't like him. He's got his plusses at times but I consider him mostly a fraud. I think singing "Bomb, Bomb Iran" virtually by itself shows him unfit for the presidency. I don't understand why he's considered a hero.

However, I think it's intellectually dishonest to attack him for wanting to stay in Iraq 100 years. I think his point was fair. It's not how long you stay, it's how long you stay at alert, with a bullseye painted on you, knocking down doors and getting shot at. If you could stay but successfully pacify the country, the American public would not care. I think it's ridiculous to think Iraq will quickly become a safe place, but he's right that most Americans would not care if it were not for the US casualties produced by the stay.

No one will say it but McCain has more experience because he is a white boy from a notable family. He's been in the Senate 20 years. When he got there, there were two women serving (one the daughter of Alf Landon) and zero African Americans (only one African American had ever been elected to the Senate by that point). So his experience is largely of a sort simply unavailable to women and blacks.

I continue to be amazed at all the talk about candidates allegedly positioning themselves with respect to the all-important issue of their own status as frontrunner or insurgent or whether they have "momentum" which is all malarkey. I remember G.H.W.B.'s "big mo" got him about as far as Joe got on "Joementum." Apparently, the response to, cover the issues and the candidates and not the horserace, is that the horserace is the important issue. However, I seem to note that most polls show Americans are more concerned about the economy and the war than momentum or frontrunneriness.

I have to say, I am really impressed by all the Obama media out there. I've heard that he's got campaign ring-tones going out there, all sorts of merchandising, and viral media. There was the "Obama Girl" video and now the will.i.am "Yes, We Can" video with something around five million hits on youtube, and Slate has that wonderful "Hillary's Inner Tracy Flick" video, and the john.he.is video mocking McCain (although a little unfairly) is just great. He hasn't always impressed me much with his policy positions, but to the extent that running a campaign successfully is any indication of how one would run a country, the man is surely uber-capable. And that's very appealing after 8 years of rank incompetence. And being the opposite of Bush's ideological stridency is, although not for me, apparently a hugely appealing contrast for the rest of the nation. Short summary of the Obama strategy: look for a president with a 25% approval rating and do the opposite.

A positive word for Ron Paul. The Nation put in a good word for Chris Dodd a while back, saying he was good on civil liberties and foreign policy, which is after all where the president's power is least checked by Congress and must be the best for a candidate. By that measure, Ron Paul is not bad. As a libertarian wacko, he will respect civil liberties, and he's got that good old isolationist streak that makes him a stronger anti-war candidate than either of the democrats. Now if only we could get him to appoint some liberal justices. Hmm, maybe a crossover veep? Obama-Paul?

And the disaster that is Iraq. It really is staggering whenever you look at the statistics afresh. A million dead, millions displaced, millions wounded, millions in dire poverty, constant violence, sectarian division, no electricity, an illegitimate and ineffective government, sub-prewar oil production, women subjugated, emerging drug production, no drinkable water, hospitals destroyed, professionals driven off, the people under biometric lockdown, other countries invading at will, the historical, archeological and cultural heritage of the cradle of civiliazation continuing to be blown to bits. Please remember that the surge was intended to create a temporary increase in security to allow the resumption of all the sorts of normal life necessary to come back and make the increased security permanent without the surge. What happened was that there was very little surge: other countries decreased their commitments as the US filtered in troops who were worn out or used up, brain-injured, demoralized and suicidal, scraped the bottom of the barrel to bring in troops that would normally have been rejected as unfit. Petraeus created an illusory surge mostly by systematic surrender, giving up Anbar and leaving Basra abandoned, reallocating forces, and making heavier reliance on air-power which kills indiscrimately and creates generations of new enemies. Along with the burning out of the ethnic cleansing in Baghdad, this led to a salable domestic PR victory, but led to none of the strategic objectives of the surge. The place is still hell. There's nothing you couldn't do before that you can do now. Everyone is still doing what they were doing before: positioning themselves for the inevitable US departure.

Finally, checks and balances. Who says they have to be internal? We here a lot of talk about rebuilding America's image in the world, shoring up its economic strength, repairing its burned out military, and restoring America to international strength and presige. Of course, as your future president, I agree wholeheartedly. But as a current citizen who cares about the rest of the world and about limiting the power of the executive, especially in the face of a supine Congress and accommodating courts, I see the glass as more than half full. So the rest of the world is finally wise to our bullshit? Good for them! If Congress won't stop the President from making unconstitutional foreign policy, maybe the united nations of the world will step in and do their job for them. We don't have the forces free and up to strength to augment covert operations in South America? Well then, they will be better able to impose the check that Congress won't. Hooray for the sovereignty of our South American brothers, truly the successors to Congressman Abe Lincoln!

More Idiocy from Local News

Two stories draw my attention.

Let's start with tonight's report from Aaron Diamant. This is fresh so the only link I can give is for the teaser. (Update or Correction: try this.) This is a typical example of a news report seeking to generate outrage over a sensationalized big zero. The charge is that taxpayers are forced to pay for county officials using the internet for private matters while at their offices. The facts given in the report:

1) Some county residents feel (rightly, according to the reporter) that being an elected county official is more or less the same as being a barista at a coffee shop and that they should spend their time at work actually working.

2) There is a county policy that allows county workers to use the Internet service provided for their jobs for private matters, so long as it is not excessive.

3) They looked at internet logs and found that officials like various county supervisors and the county executive visited social networking sites, checked on investments, and shopped online from work. The County Clerk spent at least 24 hours over a period of four months, before during and after work, planning a wedding online. (That's about 18 minutes per average workday, including time before and after work and while on break.)

Facts that were not given:

1) Are these employees paid by the hour?

2) Did they do as many hours or as much work as the position expects? (Actually, one person did say they sometimes put in 10 to 15 hour days, so in at least one case, the answer appears to be yes.)

3) Did the time spent on the Internet add any cost to the taxpayer over what they would pay otherwise?

4) Did it cause any decline in service, or did any public business not get done?

5) Were any of these people engaged in private business when they were needed urgently for public business?

6) Might permitting officials the convenience of not having to leave their offices in order to attend to their private lives actually improve their productivity or help attract higher quality candidates?

7) What is the comparable standard in the private sector (for professionals and administrators, not waitstaff)?

8) What limitations are there in the monitoring system that appears to reflect this amount of time spent online? Might the actual time burden on the employees have been less than is apparent from the monitoring? (I had a client who was a public employee discharged for excessive Internet use and we discovered that the reports based on the monitoring dramatically inflated the apparent time spent online, because it assumed that whenever two sites were visited a half hour apart, that the user was sitting glued to the screen for that half hour and not, say, taking a business call while the computer went to screensaver.)

9) Is there evidence that any of these people violated any policy, sought payment for hours not spent working, or commited any legal or ethical offense related to their online time?

I conclude that his was a stupid report. It does not tell us whether these elected representatives are doing their jobs or whether allowing them to use their computers for private matters is good policy. It does recite uninformed opinion that executives should be bound by the same rules as baristas, as if they had no authority to exercise discretion, power to delegate, and as though their jobs are merely a matter of serving time. I would submit that this kind of myopic, pandering report is a particular disservice in the midst of a major national election, where voters should be guided to some practical understanding of what they are voting on. Which is not a barista. (Mike Huckabee would probably be slow on orders because he'd be chatting up the customers, but you's still like him; Obama would always get your order right and serve you with a bright smile; Hillary would be the best able to advise you on the merits of Tanzanian Peaberry over Kenya AAA or the Decaf Haraar; McCain would be a lousy barista.)

On to the next report, from John Mercure again. Do not confuse this similar report. The story here is that a priest ministers to an old woman in ill health, visits her every day as a hospital chaplain, and she decides to leave him all her worldly possessions. Her family, who is cut out and gets nothing, not even the family photos and historical records, finds out later and is upset, and calls the priest a con man and throws around a lot of insults and speculation that he took advantage of the old gal, saying that she had previously expressed her wishes to make specific legacies to various family members.

Now of course, just because I think Mercure's reporting is garbage does not mean that Father Ryan is a saint. He may well be "heinous" scum just as labeled in the broadcast. But the facts are really questionable, and the report leads me to consider how much different it would have been if news reports followed more of the standards applicable to courts.

In Mercure's reporting we have this sequence: (1) The accusation is made; (2) The accusation is supported by lots of insults, hearsay and speculation, but not one document, eyewitness report, or piece of physical evidence of any wrongdoing; (3) Mercure confronts the priest who denies the charges and states that the decedant expressed her desire that the matter remain confidential, and although he looks a little squirrely, he reacts far more calmly and addresses the matter more straightforwardly than anyone else I've seen subjected to one of Mercure's ambushes; (4) More hearsay and speculation, and a statement that the Archdiocese claims that the estate was mostly given to charity but has not produced proof. Then it is said that the priest had sent a letter claiming to have a note from the decedant to show that she did express a desire for confidentiality, and pointed out by the reporter that the priest's letter does not prove anything about the distribution of the estate. The lawyer for the decedant also refuses to divulge any documents.

In court, both sides get an opening statement up front, so that the beginning of the report is not entirely loaded down with one side of the story, and the defense relegated to the end. Actually, that's standard for news reports too, something that is routinely done in the ledes of inverted pyramid style reports, but apparently not something Mercure worries about.

Then the party with the burden of proof must present evidence. Not, oh, I'm so shocked, how could he do this, he must have taken advantage of her. Something like, the priest has done this before, the old lady had dementia, she expressed a contrary intent after the will was changed, the proper probate procedure was not followed. But here we get nothing of the sort. We're told she would do anything a priest said. Okay. Would she do that of sound mind because it's what she really wanted in her heart? Then she's getting her wish. Sorry, family. The old lady is responsible for screwing you. Bad form, but it's her property, and if she wants to give it to the priest with instructions to distribute to charity, that's legally her business. I think it's bad, but that's what a lot of old people want when they're very religious and fear death and want to bribe Saint Peter. I think the old lady was thoughtless toward her family, specially with regard to the photos and documents, but maybe she felt abandoned. How do we know?

Then the other side gets to put in its evidence, but has the right to be silent if it thinks the other side has not given it anything to disprove. In this case, it does not. It cites confidentiality and relies on the adverse case being weak.

Then both sides get a summation. Each can point to the other's lack of evidence, not just the prosecution.

There may have actually been a legal action in this case, but I do not see one recorded in Wisconsin. The old gal had moved to Illinois, and I don't think Lake County of Illinois as a whole has an online database of its circuit court cases like Wisconsin does. When she died, assuming Father Ryan is not her long lost son or brother, her heirs at law would have received notice and the opportunity to challenge the will. That was either not done, or the challenge was unsuccessful. The previous executor was not notified because he was not an heir or beneficiary, being only a great nephew. So this raises the question: if there were a basis to suspect illicit influence on the part of Father Ryan, why not raise it in that forum?

Other things that kind of bug me here. First, since Mercure knows from his previous reporting that some dioceses have considered restrictions on gifts to priests, one wonders if this diocese has any. If so, is that the only reason the estate is going to charity? If not, then shouldn't the church come in for some shame in all this? After all, it was the church and not the priest that pumped all these beliefs into the gal all her life that probably had more to do with her decision than this one priest who tended to her near the end. It was the church that gave him is collar and thus his influence and authority with this deeply religious woman. What charities are being supported? I have identified one: Guest House, a center in Michigan for alcoholic and drug-addicted priests and nuns to dry out for a while before going back to their parishes.

Second, there's an odd schizophrenia about the piece, on the one hand titling it "pay to pray" which sounds like a cavalier profanity, disrespectful of religion, that takes in vain the notion of prayer while going for cheap alliteration and not actually describing the story, and yet treating the whole concept of a bad priest as shocking and unthinkable. Which is crazy, unless you think that the thousands of victims of clerical pedophilia are making it all up.

Third, I think lots of old people near the end upset the settled expectations of their families and make really bad decisions regarding their final bequests. They also just, outside of a will context, despoil the sentimental fortunes of their estates, giving away or allowing to be taken or destroyed those things precious to their families. The intervention of interlopers is often blamed, but frequently the amount of intercession required to get the old folks to give up the goods is frighteningly trivial. Not that interlopers don't exist, but I know various elderly people who have thought about disposing of heirlooms without any conniving voices in their ear, so that clearly is not the only problem. I therefore think that putting all the blame on the priest here, while it might turn out to be correct if all the facts were known, is a pretty cheap and easy out that avoids looking at the state of probate law, the increasing problems that we have with an aging population many of whom make dreadful and thoughtless end-of-life choices all on their own, and, as I've hinted above with reference to the Catholic Church, the broader cultural influences that affect people near the end of life and lead them to screw over their families in favor of strangers and new suitors: religion being one of the worst, but also ideals of "tough love" and independence, general neglect of family, and, especially, materialism. I don't think family members necessarily should have dibs on the money. I'd be happy with a very high estate tax. But I think there's a lot of family stuff that would have historical or sentimental value. When we start thinking only of money, we forget that stuff. Lots of old people seem to assume their kids don't care about that stuff but a lot do.

Can we get some deeper discussion of these issues rather than a hit piece on one priest? The focus on him may or may not help create some justice on the retail level, but there are broader problems implicated here that affect thousands of people and singling out an easy fall guy diverts discussion from the real problems. If old people have a grace period now under federal law for rescission of their contracts, perhaps wills should not be immediately effective without cause or some oversight? Maybe family heirlooms should be placed under a different legal regime from fungibles like money. Maybe groups other than priests should start to erect restrictions on gifts from those they serve.

Update 2: Mike McGee

Another update I wanted to make concerns the incarcerated alderman from the district next door. I've recently seen this, this, and this. The first is a pretty good article in our alternative weekly. The last two are op-eds in the mainstream daily...

Let's address the second first. It's from Gary Krager, a Wind Lake real estate appraiser and community columnist for the Milwaukee Journal Sentinel, entitled, "Some brotherly advice for Milwaukee's inner city residents." The first line is, "Let me lay it out there. Here's what black people should do. Reject Milwaukee Ald. Mike McGee Jr." Can you count the problems here?

Krager is white. He does indeed end his piece by addressing the reader as "my brother." This is in itself , let's just say, a bit presumptuous. I don't ususally address blacks as brother or sister until they've addressed me that way. (Usually brother, when it happens.)

It's also obviously condescending to offer unsolicited advice, but that might be forgiven if the advice is thoughtful and draws on some basis other than "white knows best." Krager writes, "since I'll be told I don't know what it's like to be black, I guess I get to be an expert on white people." He doesn't give any credentials there.

And I know Milwaukee is hypersegregated, but the piece appears to be premised on all inner city residents being black and all blacks living in the inner city.

Maybe Krager is an expert on the view from Wind Lake. The only other time I've ever heard of Wind Lake was in reading another community columnist, this one blaming homeowners for being victims of predatory lenders. (In a way, my response to that included the idea that real estate appraisers like Krager were collective experts in having their heads up their asses.) The Journal seems to like white people from Wind Lake. I looked it up on City-Data.com. The median home price is twice that of Milwaukee, but that's reasonable since the median income is also twice that of Milwaukee. The population of 5202 is 97.1% white. Of the remaining 150 or so others, are 86 Hispanics, 32 mixed, 26 native americans and a total of 6 divided between blacks, asians, and rounding error. It's not even in Milwaukee County.

Since I'm a lawyer, let me mention the argument Krager makes regarding the standard of proof:

I don't want to hear "innocent until proven guilty," either. That's the standard for criminal court - and for good reason. It's not the standard anyone uses in his or her own life. Your kid's baseball comes through the window, and he's outside with a bat; I don't think you're going to Mirandize him. He lies about it, and it's going to be worse. Read the criminal complaints against McGee. He's holding a Louisville Slugger.

I think Krager may just be stupid. The presumption of innocence is normal in everyday life. I'm right now in a room full of people. Any one of them could be guilty of any thing. What should I presume: innocent or guilty? When should I shift my presumption? When someone makes an accusation? That does not work. It doesn't work in real life and it doesn't work in the criminal law. I've heard far too much bullshit in court. But Krager does not really believe in the principle of presuming guilt either:

People will say I'm excusing racism. Nonsense. Of that I should be innocent until proved guilty. Racism is stupid. Why does anyone care what someone's skin color is? I want all honest, hard-working people to thrive.

So exactly why is McGee presumed guilty and you are presumed innocent? If anything, the law if the opposite. Since racism is inherently hard to prove, the standards of proof are usually less strict. Since it is embarassing but not a crime, and because the accuser lacks the resources of the state, there is less reason not to presume it. Particularly when you're a white guy from Wind Lake making condescending and presumptuous remarks to blacks whom you've stereotyped.

Let me jump to one of the other articles, where a candidate for McGee's seat says the same thing:

Even Jordan says that the case has dragged on too long, and she believes that McGee should have been kicked out of office after charges were brought so that the district could have a voice on the Common Council. She called it “taxation without representation,” and dismissed the argument that McGee is innocent until proven guilty. “I don’t understand how they sit there and let it go on like this,” Jordan said. “This is a mockery of democracy. This man is in jail. Why did the Common Council not get rid of him?”

I guess that is not surprising. Here's a reduced excerpt of the rest of Krager:

Do not care only about McGee and not his alleged victims. Do not take an "us vs. them" posture... If you want McGee to represent you, of course that's your business. The problem is that it says something to the larger community about your district. If you think that something is that you stand up for a man being persecuted, think again. To many, it says his behavior is acceptable.... That scares a lot of white people.... Many of them avoid the inner city and believe they can live a fine life doing so. The residents of the inner city are the only ones who can make the draws there outweigh the real or perceived dangers...We can pass all the laws against discrimination that we want. We even can enforce them effectively...What we can't do is make people go where they are afraid to go.... Fear will win out. Just try telling someone who's claustrophobic that he or she shouldn't be. If an area excuses and accepts crime, companies won't want to operate there. Rejecting McGee would be a baby step toward setting the bar higher for what's acceptable behavior in his district, which is the only way to attract people to it.

So the argument, in reduced form is:

You need white people to come rescue your area with investment. They want to come and help exploit the area, but they hear you blacks defending McGee and say, "oh, no, those black people have no values. They defend McGee that means they like crime, and if I go there they will come and kill me or rape me." Hence blacks must do whatever they can to sacrifice any black person accused by white people of any crime, so that whites will come to see them as having the same values as we have in Wind Lake, and then we will come and open up restaurants on cheap properties in your area, hire you for slave wages, take all your money, and eventually drive you out, which is what you need and we know best because we're white and you're just dumb n....s and by the way, I'm not racist, because racism is stupid. I just happen to think most of you are lazy and stupid.

Do I need to refute all this? Well, lets look at that last link. It's a response to Krager, and points out that most residents in the area have reasons not to be so flippant about due process, that the area is diverse, that black investment in the area would be at least as good as white investment, and that he is not sincerely seeking to help.

That's where my perspective differs. I'm a white guy and drawing on my expertise, let me tell my black friends that a lot of white people are more stupid than you seem to believe. Of course, Krager could be writing out of hate, but I presume it's just the stupid doing the talking. Because I understand the power of Stupid, I would have concentrated more on the other big defect of Krager's argument: If white people are fearful because they are stupid, the solution is not to appease their stupidity. If they fear something because of a wrong belief, why not just correct that belief? How would you react if your child developed a fear based on a false belief?

I think there's a proper role for racial mediators. Enlightened whites can legitmately lecture receptive blacks, and vice versa, under appropriate circumstances. Krager would find his black audience more receptive if (1) he had anything useful to say, (2) he did not come off as ignorant and racist, (3) he had at least acknowledged that the whites who held these stupid fears were wrong, and (4) he had directed most of his lecture to the white people who are being stupid, rather than black people whose positions he does not even claim to understand.

I hope to more thoroughly address the first link later.

Update 1: Imaginary Primary Races

First, on the primary race. Last night I was watching the News Hour and one of the guests reminded me of another complaint I have. This person was talking about the expected bounce that would accrue to the symbolic winner of a primary, such as California, irrespective of the number of delegates received, even if less than his or her adversary. What this points out is that the whole talk about the "winner" of this or that race is largely an imaginary construct that the media, rather than informing us to be skeptical of it because it is imaginary, has promoted moreso even than the campaigns themselves.

The way it works is that a state has rules for apportioning delegates. Some go to officeholders or former officeholders and thus in effect were voted upon in advance of the primary date by the general electorate of the state, district, or even the country. Others are apportioned, or go on a winner-take-all basis by subunits of the state, like counties, wards, or congressional districts. So those are district-wide individual races that may be won or lost, but in most cases, being apportioned, the stakes are incredibly small and in a close race at best a candidate may come out with one delegate more than the rival. Other delegates are at large by state, but if the number to be selected at large is not all the state's delegates but just a handful, or if they are apportioned, this makes the actual stakes of a "win" or "loss" insignificant. A few states have caucus systems, such as Iowa's elimination derby. And in some states the delegates are wildly maldistributed.

So the prize of "winning" a state is usually nothing. In most cases, it has a small or nonexistent effect on delegates. And the popular vote for the state, owing to the fact that the rules have little or nothing to do with the popular vote, is really irrelevant.

Now take a step back. I think the media should be telling us how candidates would actually govern if elected, rather than giving us reports of who's ahead and why.

But now add to this that when it comes to giving the horserace coverage, the media do not even focus on the actual delegate contest that will determine the winner. Instead, they focus on the issue of who will "win" this or that state. So Candidate X "carries" state Z, winning 15 delegates to the opponent's 14. (Or maybe 15 to the opponent's 16: It's a mandate!) But X is not going to be governor of Z, or senator from Z. He or she will be the party nominee for a national office where the state of Z may well go to the other party anyway.

So why should the media bother to report who "wins" Z, which is not a real contest with anything officially at stake? How is winning Z any more significant than winning, say, males 18-25, or unitarians, out lesbians that describe themselves as strongly anti-war? The reason, we were politely informed, is because although the mythical race for Z means nothing in itself, the declared "winner" will receive a boost in later races. It's horserace coverage one step removed. While actual race results at least tell you what the voters decided. Just saying who "won" the unofficial contest for most votes tells you only what the candidates will be able to argue to future funders and voters regarding whether they are winning.

Moreover, one must question various things here. Does it make a difference? There's no question that both the major candidates are viable. (How does winning a nonexistent contest prove viability if one lost, tied, or barely won the real contest?) Predictions on this score have repeatedly been wrong. More importantly, one suspects this effect is largely artificial and media driven. Do candidates really have a profound inclination to go out and pitch the fact that they won nonexistent contests? Or do they do it, if at all, mainly because they are aided by being able to say, "if you've been watching the news, you know that we just won Z?"

I think the role of the media is to warn people that the pitch "we just won Z" is misleading because the race for Z is not real, and should not matter much to voters anyway. But in fact, the race for Z is something the media has invented and promoted.

I think there is a word for the media manufacturing ways to look at events in order to report on how the same media-manufactured way of looking at events will affect media-conscious viewers in the future. That word is "masturbation." Thanks for sharing, News Hour.

Primary Coverage Without the Facts

One thing that does really tire me concerning the coverage of the primaries is that, being so intent to provide color in the manner of a sportscast, to the point sometimes of shouting (but at least not shouting "Booyah" so far), the standards of the factual content have declined.

I've noted before that explaining how the voters feel is akin to reporting on the voters to an audience of candidates rather than vice versa. It is also an ill because it aggravates "third-party effect", plants the notion of voters' election role as passive and predetermined, and promotes preoccupation with the least important concerns. It is human nature to absorb the silliness of the pundits, just as it is human nature to laugh more readily at unfunny farce when a laugh track is provided. I of course am wrapped up in the race myself, being not immune. I fancy myself a lay pundit, with something unique and important to say to anyone who will listen, which puts me in the same cart with two thirds of the voters, who when scratched will do their best imitations of insiders, spouting back the virdicts of the punditocracy. The election coverage we get, which does not tell us how candidates would govern, but communicates the feelings and concerns of pundits and asks us to internalize them, is a continuous track not of chuckles and guffaws, but acquiescence and indigation according to the values of the pundit class.

But as I began, the issue today is on declining factual standards. Before I make my point about them, let me just set one thing up: A lot of things in this world are complicated. One must take care to speak with a certain precision about them, otherwise, one veers easily into untruth. Some things are not just complicated but sensitive. A small misstep might inadvertently send a message that insults or denigrates. And some things are policed so that it is not unheard of that people might speak in code, relating a message below the surface of their literal meaning. There are also those in the audience who find a convoluted or complex position irksome because it seems "overlawyered" and weasely. Something so carefully parsed suggests less than full commitment.

In this kind of public discourse environment, it would be back-asswards public policy to put the entire onus on the speaker to construct every statement perfectly, or to obligate them to elaborate each remark to idiot-proof it against imagined meanings, unlikely but conceivable misinterpretations, or misuse by clever editing. This especially goes for the campaign trail, where candidates are prone to rattling 20-hour days where every word is recorded and the record culled for the most outstandimg highlights.

What can the media do? It can provide context and background, so that voters will not be taken advantage of for their ignorance. I've often thought that John Kerry, although a bad pick, would have done much better if anyone in this country understood how the Senate worked, and that voting no on one version of a bill, then voting yes on a better version was not a flip flop. (Plus that some votes are strategic or symbolic, all are compromises, and voting twenty times on one bill that contains thirty inconsequential and uncontroversial small tax increases is not voting for six hundred tax increases.) Back to what the media can do: it can resist the urge to run soundbites, whose time I have not checked recently, but the last time I saw the research, their average length had gotten down to about eight seconds. It's not easy to get much context or nuance into eight seconds. The media can resist relaying any campaign message that seeks to punish core discourse values like nuance, caution, precision, reliance on evidence, transparency and tact. It can refuse to convey messages that are fact checked and determined to be simply and uncontriversially untrue. It can generally include context. And there's one final thing they can do, which they are not doing, and it's a pretty basic Journalism 101 skill. Can you guess it?
Consider the following examples, not all, from the Clinton-Obama dustup manufactured by the media. :

(1) Bill Clinton calling Obama's candidacy a fairy-tale.
(2) Obama changing positions on the war.
(3) Obama saying conservatives had all the good ideas.
(4) Hillary lying about Obama by saying he praised Reagan.
(5) Hillary suggesting Martin Luther King was not an effective civil rights leader.
(6) Hillary fanning the flames by making snipes at Obama on Meet the Press.
(7) Bill distorting the the facts by saying no one thought Hillary could win New Hampshire.

All of these have been reported in a manner completely at odds with basic journalistic standards, and most if not all of these has been reported in a manner exemplifying the basic staple of journalistic integrity I referred to above, which is: quote accurately. I mean, jeesh! In (1), Bill Clinton was not ambiguous at all. The context was completely clear that he called Obama's account of his consistent opposition to the war a fairy tale. Paraphrasing him partially quoting him as indicated above has not been limited to Obama surrogates outside of the media. In (2), I don't know of Obama being misquoted, but I wouldn't bet against it. Obama was consistent in saying that he was opposed to the war, but could not say how he would have voted on the war were he in the Senate in 2003. That's fair, because in the Senate, no one introduces a bill that says simply, "War?" and asks for your vote. The particular legislation was for authorization of force, and it deserved to be voted down, but lots of Senators stood up and said their vote for the bill was not intended as a vote for war. This goes back to the idea that the media doesn't explain much of the civic basics regarding the responsibilities and processes in government. In (3) we have a Bill Clinton misquote of Obama, which many in the media echoed either in or out of quotes. Obama actually said the Republican Party was for a time the "party of ideas," which was true, in fact. The Republicans had a bold agenda to push America backwards, while the Democrats were mostly about stopping this, which is not in itself much of an idea. In (4) we have Maureen Dowd from today's Times, misreflecting what Hillary said and implicitly misreflecting Obama too by somehow viewing the substance of what she put into Hillary's mpouth as wrong when it was right. Obama did praise Reagan. If Hillary had said simply this, it would not be inaccurate. It is possible to praise someone you disagree with. In (5) we have what is now a famously ridiculous misreading, which was originally attributed to James Clyburn but disavowed by him. I don't remember actually ever seeing Clyburn quoted as saying anything really substantive. I do recall the Times attributing a vague statement to him, which in the context they provided seemed ridiculous, and made me instantly think, "I wonder what the actual context was for this remark." Since then, I've seen the Clyburn elliptical comment referred to repeatedly without ever being quoted for I think the obvious reason that there wasn't ever much there to quote. In (6) we have a reference from someone in the media talking about how Hillary just wouldn't let the issue go. In fact, she was asked directly about the matter, and answered in a way that was fairly deflective, but I guess the fact that he answer was somewhat responsive and not completely evasive meant that she was trying to keep the story alive. Finally, (7) is Dowd again, accusing Bill of misreflecting what the pundits had said. Of course, Bill was accurate. The polls showed Obama way ahead on the eve of the vote, so "everyone" (among the class Bill was referring to) had already pronounced Hillary the loser. Dowd said this was "rewriting history," which in this case was a job Bill was happy to leave to Dowd.

So, in a nutshell: the media get off on handicapping the horserace, and it's infectious and it's bad not only for its own sake, but because the commentators are so preoccupied with how things seem or are read that they don't even do the reality-check of just reporting accurately what someone said, meaning they have effectively regressed to a prejournalistic state, and have lost the one thing that ever made them useful to begin with. They've stopped reporting and stopped anchoring their commenting to the actual news, and are commenting on their own feelings, which is far worse than nothing at all.

Green and Gold, Local News, Sex and Violence

I actually wrote this on Sunday, and realized today, Thursday, that I never published, probably expecting to do more...

Today is game day. I really can't help wishing the Packers will lose. Sorry, locals. I know some of you have invested thousands of dollars for a few tickets to the game. And it means a lot to you, and it pumps up the economy and all that. But for me, it's just one unending annoyance. If you want to measure the level of distraction, see our local news. With the national news devoted almost entirely to the who's-gonna-win predictions and strategies of the primary contests, it would be nice if the local news could administer at least the small amount of news they usually give, but Packers coverage has crowded out all but a few minutes of every broadcast. They've even be telling me what today's weather would be many times over all week, at the expense of knowing the weather day immediately ahead of those broadcasts.

One of the few stories to peep through on Friday was that of yet another sex offender, although this one has so far been convicted only in the media and is as a legal matter still technically innocent. Among the charges per Channel 4 was "pornography," which, so far as I am aware, is still protected by the Constitution and not a crime. This points I think to two things: first, the reporter was not awake, and the editor did not care, because they had 40 seconds or so to report the story and then get on to their real interest: a local family telling us their superstitious rituals to help Green Bay win, and which shirts are lucky and which shoes are not. Second, right under the surface, there is an understanding that these laws are not just about (or at least the coverage is not about) protecting potential victims, but is really focused on the sex thing. Get some sex into the newscast, while posing as anti-sex.

This struck me particularly because last week's Law and Order SVU just a day or two before this was about a little kid who became a serial rapist and his defense was the internet did it to him with its pervasive porn. What was strange was that no one in the show (so far as I saw, although I missed the beginning) made what I thought would be an obvious point: the really violent rape porn that the boy described is anything but ubiquitous. I think I have a reasonable familiarity with online pornography, but I have never personally encountered what this child described. I haven't had any personal or professional reason to look for it, but I would hazard that the general quantity of porn must be thousands or tens of thousands of times greater, maybe millions of times greater than that of viscerally violent porn. For a show that's usually pretty smart about knowing the difference between sex and rape, this was a bizarre omission.

I think these two events underscore a weakness in our public approach to sex crimes, which is, treating the sexual element as their defining characteristic, and obscuring the significance of violence and real harm (and indeed all details of the offense). I represented a teen whose crime of having sex with his underage future wife carried a far worse sentence than he could have gotten for just beating her (which was also alleged, but why try to prove it when you can just show the teens were hooking up before they were wed?). I have another case where it's clear that the only protection the law provided was not to potential victims, but to the public's irrational fears and the "yuck factor" concerning some things they'd rather not think of. (The law deals with what kinds of busineseses a registered sex offender can own or operate.) In these cases, it looks like sex panic has trumped prevention of actual harm. (Although oddly, as a consequence of the same motivations and lack of legislative precision, it can also happen that a crime will be considered a sex offense by definition even when it has no sexual aspect.)

UPDATE: Packers lost. Our locals appeared to be good sports about it. The news has returned to its normal state, which is poor, but better than it was when it was all Packers all the time.

Lessons from the Filipino Monkey

Glenn Greenwald’s treatment of the incident in the Strait of Hormuz is missing some of the revelations to come later, but has the right central point: the incident mainly shows the unreliability and incredibility of the Pentagon. With what we now know, it should be fairly evident the irony of Defense Secretary Robert Gates rhetorically asking who one would better believe: Iran or the Pentagon. The answer from the start has been clear and it has not been the Pentagon.

The Administration has been so eager to point fingers at Iran that George Bush has declared himself outside the intelligence consensus (and after reading all those books!) and pressed the nonexistent case for fearing a nuclear attack from Iran. It has a long history of staging Gulf of Tonkin type events (including provocation of the Korean War, and piggybacking on civilian efforts, the Maine incident). And more recently, it has resurrected the Five O’Clock Follies with the fraudulent stories about the Jessica Lynch story and toppling of Hussein’s statue at Fardis Square, not to mention the propaganda about turning points in the occupation, and the Petraeus show.

Iran, on the other hand, has little obvious reason to lie or to stage an episode, albeit this may reflect the US perspective. From Iran, it may seem that it does get some benefit from focusing international and domestic attention on US bellicosity, but this is just speculation, because we really don’t get much of any news here that shines a light on the view from Tehran.

The story was largely concocted. It initially did not appear worth reporting, but a day later it had become dramatic with the report, from which the Pentagon has since distanced itself, that the captain of one of the US warships was on the verge of ordering fire on the Iranian boats when they backed off, and that the boats had dropped mysterious white boxes into the water. A video released by the US was altered by merging footage that did not seem particularly disturbing (no white boxes, no aborted order to fire) with a black screen over which a voice could be heard telling the US (or the Iranians?) “you will explode.” The audio had no trace of a Farsi accent, and did not have the same ambient noise as the actual transmissions from the Iranian boats. It has since been reported by Navy Times and other sources that navigators of the Gulf are familiar with heckling messages of similar character in this region, threatening US warships, and these have been routinely been assumed to be civilian transmissions unassociated with Iran.

Martha Raddatz, appearing to be a credulous idiot (sorry) on Washington Week in Review, said the US captains were really scared. This begs a whole series of questions, mainly, scared of what? The implication is that the tiny Iranian speedboats could have crippled a gazillion-dollar US warship. If so, I have a plan to reduce the navy budget by about 90% replacing our fleet with outboard racers. My first thought was that the Iranians would obviously scratch the hull paint on the pride of Annapolis if they tried anything. My guess in fact is that a speedboat could produce minor but disproportionate damage sufficient to put the captains in concern that they would be forced by standing orders to engage the boats, and thus put themselves in the middle of an international incident. Another question I would hope for somebody to ask is, “what do you mean by behaving provocatively?” What does a small boat do to provoke a big boat? The failure to state anything particular that constituted the provocation was a red flag. George Bush commented that he found the actions (of behaving provocatively) very provocative. He also did not say why.

The final part of the story is the Pentagon’s claim that the US vessels were engaged in transit passage into the Persian Gulf, operating in international waters five miles outside Iranian territorial waters. This is, it turns out, nonsensical in a whole variety of ways. There are no international waters in the Gulf. Outside of Iran’s territorial waters lie Oman’s territorial waters. Ships typically enter the Gulf on the Iranian side. No agreement recognizes transit passage into the Gulf on the Oman side, and the agreement that allows the rest of the world access to the Gulf through Oman’s waters has never been ratified by the US. I find this striking because it would seem to be something easy to check, and yet most outlets got it wrong.

The Free McGee Movement

I went to an event last week, part of my effort to getting back to being more politically active. I used to go to political events daily, but my attendance has been falling off for some time. The event was a fundraiser for the defense of the imprisoned 6th district Milwaukee alderman, Michael McGee, Jr. (whose real name may or may not be Michael Imani Jackson).


Background.

McGee is interesting. I've met him a couple of times and from our limited interaction he seemed progressive and hardworking. Some of my friends who have dealt with him are not sympathetic. They see him, and I have no reason to doubt this, either, as being more successful in terms of his own notoriety than for his constituents, and ideologically sullied by a homophobic and sexist mindset that is all too well established in the community, which tends to get blamed on rap music but really is propagated just as strongly by traditionalists in the black church. On the common council and in the community, I sense a deep ambivalence toward him as an imperfect model who embarasses them and causes them trouble, but also represents some positive things, deserves respect, and has been unjustly treated. Some of the people I've talked to paint him as loving to project a kind of capo image, natty in a suit, king of the city, dropping asides regarding who might deserve a comuppance. His worldview appeared to be informed by that of the black power movement (his father, after all, revived a version of the Panthers little more than a decade ago) but was perhaps a bit indiscriminate. He seemed to sense conspiracies everywhere when I talked to him, which given the politics of City Hall and the dirty tricks against him is certainly understandable, whether or not it is factually justified.

McGee has been regularly attacked legally and rhetorically on private matters, and the local media has not been kind to him. It is sometimes hard to tell whether the news you see about him represents a struggle to be fair to him despite a lack of sympathy and the persuasiveness of his detractors, or whether the media have only barely gone through the motions of formal objectivity, actively seeking to embarass him. In either case, there has certainly been a very negative portrait that has shown through, and at many places, the coverage has been willingly or unwillingly slanted. Until recently, the news has focused on matters such as accusations regarding a woman whose child he fathered, questions about the name on his driver's license, and his use of intemperate name-calling against a fellow official, the types of news that he would get if he were Paris Hilton or Lindsay Lohan, not anything related to policy or central to issues of aldermanic service. This alone is a black mark on the media, which waits to be fed these kinds of celebrity news rather than digging into policy issues and reporting on where council members stand.

The current plight of McGee relates to state and federal investigations into his official conduct which have landed him in jail. His state trial is scheduled for March. The first charge announced to the public was an alleged consipracy to commit murder, which is not anywhere among the current charges. A phone tap revealed McGee issuing directives to an associate to apparently intimidate an enemy. This was originally portrayed as the hiring of an assassin and is currently viewed by the prosecution as paying for a beatdown, resulting in two counts of felony conspiracy to commit battery. This is an I Felony, the least serious level, just enough to remove McGee from office and take away his pension. The authorities arrested McGee claiming that they needed to act quickly to stop the assault. The two codefendants on this matter have apparently decided to take deals and testify against McGee. Otherwise, I suspect the case would be difficult, since McGee could simply argue (and probably still will) that the expression he used did not imply violence, but some milder form of rough persuasion.

The state charges now number 12 and include several unclassified misdemeanors for criminal contempt for attempting to pressure witnesses from jail. The remaining charges are all for one or another variation of electioneering, bribery, or lying to election officials, mostly in the course of surviving a recall election initiated by conservative enemies outside the city. I was an election observer and deputy registrar, and observed unlawful election practices by his opponents, despite which McGee easily won the recall. The federal charges are related to corrupt use of aldermanic licensing powers, from what I gather. (More in a little bit about information gaps...) All told the state charges are about half felonies, all of the smallest caliber.


The Movement's Issues.

The event I attended had about 100 or so people. (The estimate of 200, given from the podium, was clearly inflated.) A petition for McGee has 148 signatures, but I'd estimate that about 2o of these were repititious or at least partially anonymous. Not many lawyers seem to be in his corner. His own lawyer on the state charges has twice asked to withdraw. The billing for the event drew me by suggesting that there would be some kind of legal briefing, and defense brainstorming, but what I encountered was essentially a sermon or revival meeting, which addressed the injustice to McGee only in generalities, except for a brief address by his federal defender. The main point to be made was that we could raise money if we all worked together, and that a conspiracy of evil had robbed McGee of his civil and human rights by denying him a trial, denying him bail, and had forced his constituents to endure taxation without representation. The goals of the movement seemed to be several: to actually free McGee by proving him innocent, to redress perceived injustices regarding his mistreatment in prison and denial of rights, and to assure his reelection.

Since this meeting was mainly preaching to the converted, there was not much substance to the cries of injustice. The Free McGee website is a bit better, but still not very robust. It does not link to any documents, like the criminal complaints in the case, and too many basic facts are missing for it to convince even a sympathetic skeptic.His defenders compare McGee's treatment to that of white aldermen and state officials accused of corruption (but not witness tampering or conspiracy to batter) and to that of violent criminals, who at least received bail and trial. As an attorney, I did not find the arguments very compelling, but I nevertheless believe there is some truth to them.

The denial of bail was based on a sound principle, at least superficially, and I actually worked for a while with the AUSA who argued for bail to be denied. McGee could make an argument, perhaps a strong one, that he was screwed over in the bail proceedings and that they were unfair throughout, but this is a detail-intensive argument I cannot personnally make with the information I have. I seem to recall state bail was originally requested and set at a very high amount, but that may have been because of the whiff of murder and an overestimation of McGee's wherewithal. It was subsequently reduced, which is proper; his community ties make him unlikely to flee. The federal bail proceedings all took place after the completion of a sisyphusian ritual of arguing, assembling and posting the state bail, which was all rendered moot by a federal hold. In the federal cases, bail was first granted by the magistrate, but this was reversed by the district judge. The ultimate result of denying bail impedes McGee's representation of his district. McGee's supporters don't really appear to address the state's argument that his release on bail would have facilitated his intimidation of witnesses and the frustration of justice, and that this was a factor not existing in the cases of white officials. Nor do they take into account that the context of the bail originally being set high would have been influenced by the allegations of a murder for hire. State Senator Chuck Chvala might have done some bad things, but no one ever accused him of planning the assassination of his political enemies.

As for his being denied a trial, this is simply not so. He has a trial scheduled. Trial delays usually help the defendant, and in this case, deferring the trial would assure that his pension will vest and that he will have time to prepare a defense.

Nor are his constituents completely without representation, although obviously the quality of that representation is affected gravely by McGee's inability to attend meetings, hearings, and votes. If McGee is guilty, then one might argue that this is what you get when you decide to elect a felon. If McGee wanted to assure his consituents had a representative able to fulfill these functions, he could turn over his seat. On the other hand, releasing McGee for votes and meetings (under appropriate restrictions to prevent any risk that he would undermine the legal process against him) would have been far preferable from the perspective of the legitimacy of local government. If Milwaukee were a province of ancient Rome, the people could cash a get-off-the-cross free card, as those of Palestine did Biblically for Barabbas. There's something to be said for such a policy. As inappropriate as it might be to literally allow the release of a criminal based on local popularity, it would be good to see the law recognize some viable mechanism where a community's support of an accused could be better heard. In this case, the federal authorites and the state and even local prosecutions are not seen as fully legitimate in the eyes of the local community, because Milwaukee is so racially segrgated and all of these guys that I've seen have been very much white. They are part of an establishment that seemed to selectively go after McGee, bug his conversations, push for a recall against him, pressure him with bad press and civil actions, and then characterize his responses to these very pressures as criminal.

I don't know anything specific about alleged mistreatment of McGee, but there is the matter, which I would agree is an outrage, is that while McGee's peer officials appeared in court wearing suits, McGee appeared in a prison jumpsuit and shackles. The image of McGee in shackles was used as recycled stock footage in subsequent newscasts which is an indignity to him and his constituents which evokes images of slavery. Whether this happened because of specific dislike for McGee as an alderman, or because of overt or more subtle racism is something that can only be guessed at, but there it is.

The McGee website does identify some acheivements of the alderman in office, but the descriptions are very slight and give no links.


What is to be done?

Back to the movement, the real question is, what should be done about all this? The obvious persons with the power to help McGee are the judges and juries in his trials, who are supposed to be insulated from influence and follow the law. Nevertheless, it is reasonable to raise money for legal fees and expenses like investigators that might legitimately help move a jury. This all supposes that McGee is innocent or at least has a viable defense that can be supported by these means. Beyond that, the Governor could issue a preemptive pardon, generally a bad practice, and politically unimaginable. The DA and US Attorney have a great deal of power and these really are appropriate parties to address if the goal is freedom for McGee. The problem is that the Milwaukee DA does not need McGee supporters to remain in office, and his federal counterpart is appointed. Winning support for McGee among Milwaukee residents might have some effect on getting the DA to moderate his attack, but not if the evidence is compelling, and the public has not really been exposed to the full scope of this evidence. Pressuring the media for fairness is something that might produce better coverage which is a good in itself and will have a secindary effect of making it easier to win others to the cause. To the extent the goal is McGee's reelection, then the focus should be on the voters, with an awareness of how legal developments will play in the campaign.

There are two big problems I see in all of this, however. The first is contingency. Many of the goals espoused by the McGee movement assume he is innocent. Maybe he is. But if he is not, then all of this will fall apart when the evidence against him proves to be overwhelming.

The other problem is possible misdirection. it sometimes seems like two thirds of all the political activity on behalf of minority and disenfranchised groups is wasted on purely symbolic campaigns. The effort to free McGee is not entirely symbolic, because the community is at risk of more than symbolic losses if it loses either the candidate it elected, or a vote in he common council which that candidate failed to influence because of his incarceration. I also understand there is a principle of standing behind one of your own who comes under attack for sharing your beliefs. In part this is the Niemoeller principle, which was further invigorated by the divide and conquer strategy of the red scare: all must stand together or all will be vulnerable.

However, there is a large portion of the energy in this campaign that appears directed to the offense or indignity in principle that their individual champion should be injured. To that extent, the community is responding to a symbolic injury, much as it would to the airing of a racial slur on talk radio. Campaigns around these kinds of issues, like third party presidential runs, can operate for or against more important concrete issues.

A recent example is the campaign by local Latinos to get Mark Belling fired from a local radio station for an offensive comment about “wetback” voters. Two groups pressed the issue. One called off the attacks when the radio station inaugurated new programming directed at Latinos and contributed money to the local community for beneficial projects. The other group pressed for the firing of Belling and as far as I know, won nothing but a sneering phony apology. The first group arguably sold out for too little, or for benefits that went too much to themselves and not enough to the broader community, but they did well in considering that the remedy they sought was flexible.

One can treat a symbolic issue as either complementary with broader issues, or as a competitive substitute. For example, if the media treatment of McGee is regarded as part of a broader phenomenon, then the media can respond by improving coverage of the inner city and the views of African American community leaders, and drawing attention to the effects of inadequate city services, inadequate state staffing of community corrections and child welfare offices, failure to deal with the housing crisis, predatory lending institutions like rent-to-own and payday loan stores, police brutality, employment discrimination, and on and on. Alternatively, the media could be pressured to devote less resources to all these items, by diverting the fixed share of attention it gives to inner city concerns to more balanced attention to the sixth district alderman.

Likewise, the McGee movement can draw connections to other issues, and use support for the imprisoned alderman as a way to press those issues using the celebrity of the situation, channeling outrage at one case into broader solutions affecting the whole community, or the whole criminal justice system. Or it can compete with other movements, diverting energy, attention, and resources from community benefits to the benefit of one man.

A crucial issue here is McGee’s keeping his seat. If McGee is a leader, his position should be that he (1) will serve as long as that is the will of his constituents, and not abandon them, but (2) counsels his supporters that they should let him resign rather than see the community suffer because of his circumstances, by his being unable to cast crucial votes for their welfare, or otherwise unable to provide them the leadership they need. The question is the same as above: can McGee use his imprisonment to rally support for broader causes, or will those causes end up taking a back seat to McGee?

It bears reiterating that McGee’s cause may well be quite just, and that it is not purely symbolic. But his movement should be strategically aware that the causes McGee represents could be either served or disserved by how this is played.

Acts and Rules

My way of viewing the world has been greatly influenced by computers. I see computing machines as close analogues of how human minds perform. There is a CPU, various subprocessors, and I/O. The mysterious and fuzzy-bounded consciousness is the ghost in the CPU. Complicated tasks requiring a lot of processing power that need to be performed in real time, such as walking, assembling the input signals into meaningful patterns, using language, or playing an instrument, and basically most habits of thought and behavior, are all offloaded onto dedicated subprocessors, though most reside in the CPU while they are first being learned. Of course, the whole thing is analog, and made out of gelatin rather than printed on silicon chips, and swimming in chemicals that control the relative strength and stability of different algorithmic figures, but in sum the mechanical mind is much like the real thing.

The central question for ethics is always the same for the CPU: what do I do now? If we are good machines, we make good choices. Ethical questions are judgments, but the only one that matters at any given moment is the judgment among alternative actions that one might do. Lots of insights might go into that, but it all comes down to the final choice.

Most of the time the choice is to follow along some default habit, so making the right choice is usually a function of forming the right defaults. Set up the subprocessors so the CPU can run efficiently. Kant called this character. Thomas wrote about it. We can't function without it. There's too much information to sort through, so you have to identify salient patterns, weed out irrelevant distinctions, and generalize like crazy. Deep Blue does it when planning its next move. We need to do it even more.

So from time to time you hear the question put to freshman philosophy students whether you should follow the rules, or decide on an act by act basis what is right. There are tensions here. We generally want people to follow legitimate rules rather than risk their acting according to idiosyncratic criteria that are much less reliable, going so far as to deride carefully customized decisionmaking as "situational ethics." On the other hand, there are bad regimes of rules too. And there are other tensions.

Ultimately, all decisions will be made at some level based on both. An individual's set of internalized general rules will determine whether the ethical choice presents salient features that make it suitable for conscious, individuated decisionmaking. If societal rules are legitimate, it is presumed likely that they will seldom be in tension with the conscience of a good individual, and that when they are, this will trigger attentive choice whether to violate the rule. At least for questions of first impression -- repeated instances will start to follow well-worn mental pathways and fall back into the mechanisms of habit. Of course there are many regimes of rules, but most moral systems likewise have a high degree of overlap.

When a decision must be made where utilitarian, teleological analysis of the particular situation appears to favor a different choice than what "the rules" would prescribe, should the rules be followed? The answer is no, but it is no only provided that the consequences of the rule violation are fully factored into the decision. Violate the rule only if it is worth it. This does not mean only if it can be rationalized, but only if it is really worth it. This would be a non-answer except that there are reasonable criteria on which both sides of the balance can be analyzed.

On one hand, the benefit must be calculated according to principles of good. The following of the rule must cause harm or deny the benefit of the violation, as would be perceived from a neutral perspective without favoritism to the interests of the decider (and compensating for the decider's bias and ignorance of other interests and inability to foresee all effects.)

Likewise, the effect of the violation can be analyzed: what is the likelihood that the violation will become known and be emulated so that the rule is undermined? How is the violation likely to be explained? Is the rule undermined a legitimate one, time tested, and generally sound? A sincere one (as opposed to one honored mostly in the breach)? Is it complicated? Is it important? Is it unassailably secure, or not even viable? Does it approach being universal and absolute or is it widely controverted and full of exceptions? Is the case for the exception generalizable on broad terms, or is it highly anomalous? Is it likely to be seen as an anomaly? Is the violative act prone to being preceived as part of an exception formed on other potential patterns of generalization that run beyond or counter to its actual basis?

The Genesis of the Soul through Reification

I was just thinking the other day:

The Greeks didn't come up with the soul, but from their thinking, one can easily see where the idea comes from.

The ancient philosophers thought that objects acted the way they did in part because it was essential to their nature; events had a material cause in the subjects of the action performing in accordance with a predisposition. Complex materials were explained by Anaxagoras (or maybe it was Anaximander; I get them confused) as mixtures of elements that provided them with their essential properties. Wet matter contained water; the release of the water rendered the matter dry. Earth provided hardness and weight.

This idea continues to pervade lay impressions of the world even though science has largely rejected it. For example, people think it surprising that sodium and chlorine, neither of them a very savory material (a solid that explodes on contact with water, and a corrosive poision gas) unite to form table salt. The fact is that the properties of a substance depend on much more than the properties of components. Look at diamonds versus graphite. Both contain nothing but carbon. It is the arrangement of the atoms into larger structures that gives them their particular properties, not some missing or differing material component from one to another.

If properties and tendencies really belonged to object in material form, then you could take any positive or negative characteristic and, as they say, "bottle it." Sex appeal, money smarts, strength, slipperiness, heat, cold, invisibility: I'll take a liter of each.

There were different words for soul. Anima was the theoretical construct that distinguished living (animate) from unliving (inanimate) matter. You could have another for sentience, and another for conscience, or motion or repiration, or reproduction. If properties stemmed from material components alone, any of these properties would be things that were in living people (many of them in animals as well) and absent from dead people. If they were material, and ceased to be in a body, then they had to either have been destroyed, or suppressed into a potential but inactive or invisible state, or have gone somewhere else, existing as pure essence without the body.

It sometimes makes sense to think of some properties this way, because they truly are conserved. If one billiard ball hits a larger, heavier billiard ball dead on, it will impart its momentum to the second ball. With some loss for friction, momentum is conserved. Speed will not be conserved, because the larger mass will move slower. You can speak of the momentum being transferred. You can think of the speed being potential, with the possibility of coming out if the heavy ball hits a lighter one.

But other properties are pretty much gone. They change form so totally, it is not really useful to talk about them moving or hiding. When the ball falls off the table and hits the ground, it transfers its momentum to the Earth: it has just hit a super-massive billiard ball. Its speed? I'm sorry, but the speed of the billiard ball is dead. You're not going to re-extract that from the ground. Vaporize a painting of the last supper with an A-bomb and see if you can find that last-supperiness somewhere in the radioactive mist. John McCain's chances of being elected president in 2000: gone.

Mass is conserved pretty easily, although little bits of mass are coming and going all the time, changing back and forth into energy. Patterns and arrangements, shapes, structures, information generally, are much more fragile. Processes, once interrupted, may not easily be restarted. Of course the information isn't really gone. But its recoverability into a recognizable form is likely to be so attenuated as to render it the practical equivalent.

In any event, there is no intact, all-together chunk of concentrated image of Jesus and the apostles in the ionized smoke of the atom blast. The information is scattered, diffused, unrecognizable, and no human means can reassemble it. Likewise the motion of the past billiard ball sitting on the floor, or the shape of the ice sculpture that melted, or the softness and slipperiness of the graphite once it has become a diamond. You can't bottle these things. Nor the animate property of living matter. It's gone.

Jim Kimball Gets the Treatment

I heard a story today on the radio concerning a guy in Idaho. Here is a link with broadcast details and how to order. Here is a full article from another source on the guy. I wanted to keep a link to this because it is exactly like what we get here all the time.

This guy, Jim Kimball, is on the sex offender registry because he was charged with a sex offense, which was in fact dismissed. Apparently, in Idaho you can be a registered sex offender without having been convicted of a sex offense, and the burden is on you if you want the record expunged. The offense was an isolated incident of consensual sexual contact about 15 years ago, involving a teenage girl that he flirted with in his early 20s and never actually had intercourse with.

A local news station hyped his story. Some high points:

• They initially failed to report that he was not convicted, or that the allegation was 15 years old, even though these were matters of public record.
  
• They failed to ever seek his side of the story.
  
• They pushed to air in spite of concerns raised by the reporter that this would ruin someone's life and that the details had not yet emerged to justify the story.
  
• They misleadingly illustrated the story by showing children ten years younger than the alleged victim in his case.
  
• They used special effects like washing out the color from his photograph and zooming in slowly on the eyes, to manufacture a sense of menace.
  
• When other news agencies universally decided not to cover the story, because it was not real news in any way, the station used the fact that it had exercised unsound judgment as a selling-point, repeatedly emphasizing that it had an exclusive.
  
• They managed to get him fired; expose him to his nine-year old daughter whom he and his wife had planned to tell when she was older; traumatized is wife; forced him to miss school events for his children; drove away his friends because people were misled into thinking he was a child sexual predator.

I have some doubts about the use of actuarial tests to lock people up, but I do think they have some scientifically proven predictive value. If you were to apply a test like the STATIC-99 to Kimball, I have no doubt he would fall into the lowest risk category. Guys like this tend to be off-the-scale low risk. There is no evidence I know of that they are at any greater risk of offense than the general population.

I do want to correct one assertion from the KCBI report linked to above. It is stated in the report that an offender's recidivism rate rises over time. This is just bullshit. The cumulative likelihood of course rises, by definition, but the annual rate of recidivism decreases steadily. It decreases even more at older ages, and (for serial offenders) after roughly the first six offenses. The only time risk tends to rise over time, is when there has been recent penalty or treatment whose effects are still fresh and are wearing off, which is a small factor in the long term. That's something that would be meaningless in this case. Otherwise, just think: would we feel that a person just released from prison for a sex offense would be the low risk guy, and the guy who's been good for 25 years is the one you have to watch? It runs completely counter to the principle of induction.

On the Proper Place of Torts Among Mechanisms for Ensuring The Public Good

The NYT just had a book review of Thomas Geoghegan’s "See You in Court" which inspired me to note briefly a thought I've had for a long time regarding tort reform.

In any given general problem, there will likely be a heirarchy of potential solutions, ranging from most to least desirable. (Of course,for specific problems, the most desirable solutions are often unavailable forcing a fallback. The best remaining solution may be no solution at all.) There's a lot of truth to O, Superman: "When love is gone, there's always justice; when justice is gone, there's always force." The heirarchy is, people play nice. When they don't, we use the law as a resolution mechanism, and the law is backed by force. Even when the law vanishes or lacks legitimacy, force may be wielded extralegally to fix the problem.

Of course, a fundamental problem of politics (which I've also been thinking about because of events in Venezuela) is to maintain the use of the highest levels of resolution of problems as an alternative to perpetual violence. When institutions fail to bend to demands, they break and the resulting vaccuum of working, legitimate institutions results in a series of failures and inefficiencies that make revolutionary change undesirable except where an injustice is severe and reformist efforts remain unlikely to produce success. (Of course, if you believe this happens fairly frequently, you can share this philosophy and still be free to still call yourself a revolutionary.)

The NYT reviewer, Adam Liptak, contrasts Geoghegan with Philip K. Howard, saying Geoghegan sees the movement away from reliance strong contracts rather than increasing regulation as a cause. This strikes me as a very wierd contrast. I've not read Howard -- could he really believe deregulation prevents lawsuits?

My view, like Geoghegan's, and apparently Howards's, sees a shift in arena as the problem: toward tort from other mechanisms. But like Geoghegan, I believe the problem is not that the ugly ineffecient systems of redress lower on the heirarchy have been promoted so that people forget the better tools available; it is that the better tools have been taken away or become ineffective so that resort is made to something less desirable.

I don't think most people think, why should I talk to my neighbor about their vicious dog when I can just call the police, or why should I call the police when I can just shoot the dog (or the neighbor). Most people are smart enough to know that the better mechanisms should be tried because they are cheaper, easier, generate less pain for both sides or for the public at large, and at times can be more effective. Most of the people I see in my civil law practice undertake tort claims only after they have tried mightily to resolve the matter socially and administratively first. (The criminal defendants tend on the whole to be less resourceful in finding legal means to redress their problems.)

The idea that the decline of contract has led to the rise of tort does not resonate that much with me, though I'm sure there's some truth to it. It would mean more to me if we were talking about contract terms that were regulated. Residential leases are a good example. Lots of terms must be in or out of a lease for them to be valid, which has led to leases being very standard. I see regulation as having a high place in the heirarchy. When some activity creates a risk of harm, you regulate it, whether it's by making it unlawful for an individual to recklessly endanger another's safety with a firearm, or by forcing an industry to market only safer products and services using safer means to conduct their activities. Deregulation represents a choice on the part of government to give the subjects of regulated activities more freedom, leaving nonregulatory mechanisms to address the risk that they will do harm .

Generally, the right favors deregulation because it believes market mechanisms will be sufficient. For example, you start a business making cheap soap in your garage: you will have an incentive that the soap not injure or kill too many people too quickly or tracably, because word would get around, the market for your soap would dry up, and you would lose the income stream from tainted soap and probably go out of business. When you start again, you'll know better. If you don't learn, you'll keep going out of business and face a credit crunch. Hence the market disfavors manufacturers being careless or stupid.

Of course, stupid still happens. You can't deter stupid. There are also deterrents to crime and crime still happens. Most crimes are less vicious than stupid anyway. And our experiences with unregulated markets have also seen many victims. With only the market to protect them, victims would be left with nothing but the meager satisfaction that if they tell their stories and are believed, they can hurt the sales of the soap company. Hardly make whole relief for them. Same for crime victims, and even with tort law, the same fate meets prospective plaintiffs who cannot find a big pocket defendant. Every couple of months, the local news has a story about a local business that went under and left clients in a lurch. A great number of businesses are undrcapitalized, fail, and those with at least some customers relying on them cannot even sue, except to wait in line behind a series of creditors.

So regulate as much as reasonable. Then, have torts as a backup. Having torts as a backup acts as a pressure to self-regulate.

Of course, if you shred regulation and shred tort, what are people left with? Vigilanteism. While there are stories that pop up all the time in the news where some violence can be traced to a grievance that was legally unremediated (and the anger often diverted to some easier target), I think a good example is in divorce cases. Some people exit a relationship with such undigested anger that they do stupid and destructive things. The solution of last resort is to go after these people criminally, like all the deadbeat parents constantly being shamed on the local news, but I don't see this as really deterring anyone, and in most cases provides little relief to the victims. We need to look upstream for better solutions toward the love-justice rather than the justice-force end of the spectrum.

Partisanship

Another very brief entry:

The News Hour tonight had four authors at the table decrying polarization and excessive partisanhsip. I know I will not be alone in my thoughts on this. Basic point: sure. Gotta get along. Can't make everyone the enemy who merely espouses a different viewpoint. Can't follow the model championed by SWMNBN and just kill everyone who disagrees. There have to be some principles of what's fair.

But it disgusts me more than a little bit that:

1) After eight years of Bush and Rove litmus tests, whisper campaigns, personal attacks, using the IRS and leaking classified information to punish opponents, politicizing the whole government, caging voters, stealing elections, calling Democrats traitors, using every tool from gerrymandered redictricting, changing election rules, past-midnight votes where the vote changes after a bribe or a threat is made, changing congressional rules, issuing illegal executive orders and signing statements, ignoring the laws, concealing information from Congress, turning congressional Republicans into a politburo, striving to monopolize K Street donations, and striving to win every vote by 1, with the most extreme possible platform, after all this, suddenly, as the pendulum starts to swing in favor of the erstwhile minority, polarization and partisanship beccomes an issue.

2) No one identifies who is to blame; apparently it is everyone equally, or maybe Joe Lieberman gets some credit for being a closet neocon.

3) No set of principles of fair play is articulated, just vague "try to get along" and "don;t be too partisan" which is so meaningless, it can always be projected to your enemy.

I'm sorry. It's hard for me to concentrate. Karl Rove is on Charlie Rose getting the usual puffball treatment. He just said the Democrats have been unsuccessful this term because they don't show enough respect to their republican peers or compromise enough, and it's sort of making me want to retch.