For the Good of Mankindof

Combating Oil Supply Myths

2010-06-13T12:17:00.009-05:00

In which the author disputes “drill baby drill” rationale

It started with this Wall Street Journal article. My friend posted it to his Facebook page, along with a comment about how the traditionally conservative WSJ admitted the potential extent of the Deepwater Horizon oil disaster. Specifically, the oil plume could wrap around Florida and slime its way up the entire eastern seaboard.

My friend followed up his comment with this statement: “How’s that Drill Baby Drill working for them Real Americans now, Sarah?”

Predictably, this ignited a rapid exchange of Facebook comments. Though several people contributed, the bulk of the thread consisted of a volley between me and my friend’s neighbor, Joe. This is not the first such exchange I’ve had with Joe, and as quick background, Joe appears to be quite politically conservative.

Joe spun the thread off on a tangent thusly: “I’m not sure if anyone knows this but one of the largest oil reserves in the world is located in North Dakota. So, does it make sense to drill 100 miles off the coast and thousand [sic] of feet below the sea or do you think that the economic laws of supply & demand would work if we could get at it cheaper & safer right in our own backyard?”

Joe’s position seems to echo Sarah Palin’s, when she claimed that radical environmentalists were truly to blame for the ongoing gulf oil disaster. Because environmentalists sue oil companies over drilling on land or in shallow waters, the poor profit-starved oil companies are forced to drill deep-water wells instead. Believe it or not, since this argument doesn’t wear its illogic on its face, this is one of Palin’s more coherent arguments to date. Of course, it’s still a specious argument. And the idea, casually put forth by Joe, that some secret magical oil reserve exists on land, just waiting to be tapped, causes further damage.

Why Palin’s Argument Doesn’t Hold Water

First, let’s dispense with the illogic of this position. The argument suggests that if BP had had access to shallow-water or dry land oil reserves, it never would have drilled the Deepwater Horizon oil rig in the first place. This implies that either no blow-out would have occurred, or it wouldn’t have been as damaging and as difficult to fix. These two presumptions make little sense, however, and without them the premise of the argument falls apart.

Deepwater Horizon was pumping oil out of the Tiber oilfield. Discovered by BP in September, 2009, Tiber is considered a “giant” reserve. Just five months after the discovery, BP began drilling exploratory wells. An ING analyst, at the time of the find, called Tiber technically challenging and costly, but with potential for high reward. (Note that this means BP knew from the outset the problems inherent in drilling Tiber.) The analyst referred to the discovery of Tiber as “the holy grail.” Tiber was (and still is) expected to add 7%-10% to BP’s pre-existing reserves. The day it announced its discovery of Tiber, BP’s stock rose 3%. In short, BP stood to make big profits by drilling in Tiber, and that is what drew it to this oil field in the first place, not some ridiculous imagined opposition to land drilling by environmentalist extremists. The point is, given free rein to drill on land anywhere it wanted, BP still would drill in the Gulf. Why choose just one, when you can make even bigger profits by drilling in both?

Now, admittedly the water pressure almost a mile under the ocean (about 150 atmospheres of pressure) makes the gusher much worse, and much much harder to stop. Obviously drilling on land or in shallow water removes that exacerbating factor. But the depth and pressure are merely that: exacerbating factors. Depth and pressure had little to do with the cause of the accident. The real problems are BP’s negligence, and the Minerals Management Service’s completely inept regulation. BP knew of the technical challenges from the outset, as mentioned above. It also decided to drill a well almost one mile deeper than the Deepwater Horizon’s rating. To top it off, BP opted not to employ acoustic switches. The acoustic devices, required by Brazil and Norway, act as a last-line-of-defense failsafe, something one might consider when drilling at unprecedented depths. BP wasn’t convinced of the cost-effectiveness of the acoustic switches.

Playing straight man to BP, MMS essentially said, never mind that no one has ever drilled a well this deep before, and never mind the fact that several states depend on the Gulf for their major industries, BP shouldn’t need to conduct an environmental impact study because they pinky-swear that nothing bad will happen. The bottom line is that human idiocy and greed caused this disaster, not the location of the well.

There is no Secret Panacea Oil Reserve

People like Joe and Sarah Palin like to paint environmental opposition to oil drilling as the ultimate culprit. The real reason for this, of course, is that oil companies represent incredibly deep pockets for Republican candidates. Though the extent to which voters like Joe are complicit, as compared to the extent to which they are merely deceived by Glenn Beck et al, remains to be seen. In any case, more palatable than simply arguing that ‘oil companies should be free to drill baby drill because they pay me to say that,’ is to claim that some magical double secret oil reserve is sitting under sparsely populated land just waiting to save us from foreign oil and deep water drilling disasters. If only those silly environmentalists would get out of our way, we could solve all of America’s energy needs. Problem is, like honest politicians and unbiased news reporting, that magic oil field doesn’t exist.

For Palin, it’s ANWR. For Joe, it’s the Bakken Formation. Joe’s reference to North Dakota alludes to the Bakken oil reserve, which also sits under parts of Montana and Saskatchewan, Canada. And an admittedly large amount of oil rests there.

Joe wrote that I should do some research on Bakken. “Try the US Geologically [sic] Service 08 report. Just in case you don’t have time, it says it has enough to [sic] crude to fully fuel the American economy for the next 41 years straight @ $16.00/barrel. And, there’s a reason we’re not extracting it. I’d be happy to inform you. IF you’re interested.” He later stated that Bakken is the world’s largest easily accessible reserve, and that it’s not being tapped, I guess, because of money. (It’s hard to discern what secret conspiracy he was hinting at. At first he suggested it was environmentalists blocking the drilling. Then he wrote, “It’s $!” I don’t know who he was implying would stand to gain money by blocking the oil drilling, so won’t start guessing here.)

Of course I was interested. And I did have the time to read the US Geological Service 2008 report on Bakken. Interesting stuff. On the face, you may be skeptical that the USGS would predict the price of oil. The report, of course, contains no such analysis or prediction. According to Snopes, that bogus ‘41 years at $16 per barrel’ information came from a dodgy source trying to sell an investment newsletter. And in the same week as this Facebook exchange, I read second reference to hidden American oil reserves that could satisfy America’s oil needs for 41 years. Joe is not alone.

The USGS report placed the recoverable oil in Bakken at between 3 and 4.3 billion barrels. While that is indeed a huge amount of oil, keep in mind that we import 3.6 billion barrels every year. We consume over 7 billion. In other words, if we could instantly extract all the recoverable oil in Bakken, instead of pumping it out over time, it still would only cover our oil needs for SIX MONTHS. (All this information can be found at the USGS FAQ page here, and the press release here for the 2008 report. More useful information can be had here: http://www.theoildrum.com/node/3868) And as to the imagined conspiracy, I also found out that we have, in fact, been drilling in Bakken since the 1950s. In 2008, we recovered 26 million barrels of oil from Bakken. It’s not hidden, it’s not untapped, and most importantly, it’s not even all that big compared to what we consume.

Clearly Bakken does not represent a silver bullet. It isn’t even the largest oil field in America, much less in the top 20 sites the world over. (Prudhoe Bay, Alaska, is the largest US reserve, at roughly 13 billion barrels of recoverable oil. See this list.) Neither does ANWR represent an American oil panacea. In 1998, the USGS offered a prediction, in the form of a Petroleum Assessment, as to the amount of oil under ANWR. The Assessment has not been proved, and has in fact been disputed by various groups, in large part because the estimates are based mainly on similar geological structures in neighboring areas. The 1998 estimates are essentially educated guesses based on the oil contained in geologically similar sites. Even taking the estimates at face value, ANWR could contain between 5 and 15 billion barrels of recoverable oil. So, at best, two years of American oil consumption. Never mind that, in 2008, the Department of Energy expressed doubts as to the oil contents of ANWR.

Bawling for increased drilling offers obvious short term political gain, so we can expect the Palins and the Becks to continue hawking this illogical garbage. And I certainly recognize our dependency on oil; I’m not one to suggest we stop drilling and buying oil. We need petroleum-based products for our modern lives. But it would be nice if we could dispense with the imaginary oil reserves and discuss actual energy solutions. Secret untapped reserves, even if true, would only offer a forestalling of the inevitable. Oil is finite, yet we consume in perpetuity. But when conservatives offer this inane argument about drilling in order to ease our oil problems, they do damage. Instead of discussing the petroleum equivalent of the Easter Bunny, which wastes time and reduces rhetorical tolerance for the energy issue, we need to discuss and research alternatives to oil. Anything else amounts to putting one’s head in the sand.

And These Are Only the Things That I Know About

2010-03-16T20:41:00.001-05:00

He taught me how to shine my shoes and that cordovan is a color. At the time, he also kitted me out with a shoe valet, a horsehair brush, a few tins of waxy polish, a dauber brush, and a buffing rag, all of which were at least several years older than I was. It is a substantial sadness that I no longer have that kit. It spoke of an older, more proper age. His workshop tools did the same, many of which had belonged to his father.

I particularly remember the tools because I used to help him with handyman projects. These undertakings were equal parts learning experience and bonding time. Mostly I held things, handed over tools, or used my tiny fingers to retrieve dropped screws, washers, what have you. My brother hated such things, (truth be told, he hated anything resembling work), and flatly refused to help. I sought out projects, to the point where my father would sometimes give me a few scraps of wood, nails, and a hammer, and let me bang it all together, just to give me a project to work on. Two decades later my brother still didn’t know how to hold a screwdriver and had a more strained relationship with our father than I did. I’m no handyman, but I get by at least. Now I’m not saying post hoc ergo propter hoc, but this example is both symptom and partial cause.

Before I was able to read, I remember my dad deciding one night, a weeknight, that he would begin reading to us a little bit every night before dinner. The book he chose: The Fellowship of the Ring. I still remember how much the phrase “eleventy-first” tickled me, (being the age Bilbo Baggins was about to turn). I remember the cover of the edition my dad held when he started. I’m not sure how far into the book we got before the practice petered out, but it was enough. The first night was enough. The Lord of the Rings novels were the first books I read which weren’t kids’ books. I was in fourth grade. Actually, I had tried starting them in third grade, but couldn’t get past the chapter with the Prancing Pony. I’ve read the trilogy seven times. I also can’t stand to be without a book. I’m always in the middle of at least one, and I usually carry one with me to restaurants. I also wrote – handwrote! – a novella in tenth grade. I followed up with a novel, also handwritten, in eleventh grade. A B.A. in English Literature, and an M.F.A. in Creative Writing, also followed. Not all of that can be traced back to my father trying to start a nightly practice of reading from The Fellowship of the Ring. But some of it can be; enough of it can be.

Related to the previous paragraph, I have a very vivid memory of my parents taking us to see the animated Lord of the Rings movie in the theater. This must have been before my dad started reading to us from the book, but I can’t be sure. I remember sitting in our blue Pontiac afterward, and my dad asked me what I thought about it. Specifically, he asked what I thought about the little boy and the ring that made him invisible (“little boy” must have been easier to explain to me than “hobbit”). I remember the gesture his gigantic hands made, pantomiming putting on a ring. According to IMDB, that movie came out in November, 1978. I was three years, four months old. I can’t remember what I had for lunch on Thursday, but I remember that day strongly.

There was a time when, of course, I wanted to be just like my big brother. Matt was learning to read and write at school, and all sorts of other things that excluded me. I remember him playing a game of hangman with my dad, and I wanted to play it too. My dad gave me a try, but of course, I was about three or four and only knew my alphabet, but no vocabulary. I think I felt left out. I probably whined or something. Hey, don’t judge me, I was four. To make me feel better, my father told me a secret. I believe it was this, “pine cones have prickly, pointy leaves.” It might have been something else, but the content isn’t what’s important. My dad constructed a fiction – that there existed a secret, which he entrusted to me – in order to give me something that could be mine, and not Matt’s. It was a counter to all the new and exciting things Matt got to experience without me. Sure, he got to talk about school and multiplication tables and other occult knowledge, but I had a secret. Other secrets followed, and it became one of the games shared by my father and I and no one else. “Pine cones have prickly, pointy leaves,” was one (though, thinking back, maybe it was pine trees…); “Yoda has a bumpy head, and long pointy ears,” was another (after the advent of The Empire Strikes Back). There was also the story of Steve, (I’m not 100% sure his name was Steve, but I think that was it), a half-yellow, half-green grasshopper. See, Steve had been sitting in the middle of the road when the line-painting truck drove by one day, rendering him half-yellow. And there were others I can no longer remember. I never told anyone any of our “secrets.” Not until years later, when they became amusing anecdotes, and no longer served as Kid Brother Armor.

Every Sunday morning, when I was little and shared a room with my brother, my dad would wake us up by announcing that a purple kangaroo was out in the golf course behind our house. We knew he was kidding; purple kangaroos don’t exist. But as soon as he walked away from the window and left the room, we’d both get up to check. Just to be sure, you understand.

During that same time period, my father started telling us bedtime stories. In particular, he began a series of stories about “The Friends.” The Friends were animals, usually oddly or at least singly colored, and in the beginning there were only two or three. But each adventure brought them a new Friend, who joined the group for future adventures. There was, of course, a purple kangaroo. Can a truly great story be without a purple kangaroo, I wonder? I guess Hamlet is pretty good, and I don’t recall any kangaroos of any color in it. There was also a cow, the kangaroo’s best friend, whose color for the life of me I can’t remember. Eventually came a yellow monkey, a green parrot, a gray and white dolphin, and others. They picked up the parrot when they defeated some pirates and took the pirate ship. Out on the ocean in their ~~stolen~~ liberated pirate ship they met the dolphin. Eventually they came to a tropical island with a volcano. The monkey had to climb down into the volcano because he was the only one nimble enough to do it. I think he needed to retrieve a big jewel. The binding characteristic of The Friends was that they all, every one, loved ice cream, and would do anything in the pursuit of ice cream. More than one adventure was motivated by the acquisition of ice cream. I wrote at least one scholarly essay on Ted Hughes, and today am unable to tell you a single thing about anything he wrote, but I remember The Friends.

Then there are the usual things. My father taught me how to tie a necktie, play baseball, and ride a bike. In fact, I have a necktie he gave me when I was five. I was a nut for dinosaurs at the time, and one day a coworker friend of his, while at the Natural History Museum in New York, thought of me, and bought a tie – navy, with stitched triceratopses on it – and gave it to my dad to keep for me until I was old enough to wear it. The point isn’t really that some guy I’ve never met bought me a tie in 1980, nor is it the point that I still have that tie (I do; I wore it a few months ago even). The point is, some guy my dad worked with knew I loved dinosaurs so much that he thought of me when he went to the museum. I wonder how he knew.

I’m certain my dad taught me how to shave, but for some reason I can’t retrieve the memory today. He also introduced me to bay rum and sandalwood oil, which remain the only aftershave and fragrance oil I am willing to wear. He showed me that driftwood can be art. He taught me the wisdom of a fine wool suit. He got me hooked on drawing. He taught me to clean a gun, and more importantly, to use it to hit what I aim at. On my car, I can change the oil, oil and air filters, and flat tires because of him. He taught me how to split firewood, fix a leaky faucet, and eat a lobster.

I have a memory of him that makes me recoil at myself every time I remember it. He worked in NYC, a good two hour commute from our home in Massapequa. For the first several years of my life, he was gone before I got up in the morning – though I often enjoyed poking at the detritus of his breakfast plate if it was still hanging about – and he got home only an hour or two before my bedtime. Most nights, we had dinner, watched one TV show, and then I went to bed. But my mom was with me all day long. One night, I had a nightmare, woke up, and started crying for my mother. At most, I was three years old. I sat in bed, calling for my mother until an adult appeared in the doorway. It was my dad. I said, “I want mommy.” He went back to their bedroom, and my mother came to comfort me. I suppose I just knew her better at that point, and wanted to be comforted by the parent with whom I spent all of every day, not the one symbolized by toast-and-egg scraps left behind in the mornings. And maybe it was a relief for him to go back to bed and let his wife handle the noisy rugrat. But still. I remember the night sharply, and I get a little sick feeling in my belly every time I do. “I want mommy.” What kind of kid says that to his dad?

Probably the most important thing he instilled, the tent pole of my adult life, was the desire to learn things. Sometimes I confused this with the desire to know things, to be the holder of the knowledge. I was an irritating know-it-all for much of my adolescence. If you knew me then, I’m sorry. Seriously. He started quizzing me on state capitals years before the school curriculum called for it. He taught me the year Gutenberg invented the printing press (1440), the population of the U.S. (220 million at the time), the highest waterfall (Angel Falls), the deepest lake (Baikal), the biggest animal (blue whale), and about the Battle of Agincourt. Quizzing me became a game of ours. In short, knowing stuff was cool, because my dad knew stuff, and he expected me to know stuff. If you know me at all, you know that this is the core. Subtract the accretion of a modern life and I am essentially a bag of meat with a desire to learn things. Blame my dad for that.

Now, father-son relationships are complicated. They are also paradoxically simple. Most men I know go through a similar arc: idolizing dad, pushing away from dad, resenting dad, becoming friends with dad, becoming dad. Most men, not necessarily in this order, go through at least three of those five periods with their fathers, and it’s not uncommon to hit all five. I went through the first three, and have no idea when it happened, but we’re in number four now. For mostly ideological reasons, I am fairly certain I’ll never go through that last one, but that’s fine; it’s not a loss for either of us. I have been neither a better nor worse man than he has been; there is no value to be assigned; we are simply different. Of course, that’s not to discount the fact that elements of my character were carbon copied from each of my parents. In any case, the point is, depending on at which stage of the arc you currently sit, you may alternately idealize or demonize your father in your head. I want to point out that this whole essay has not, despite appearances perhaps, been an exercise in the former.

I’m well aware of my father’s many faults. After all, he’s just a guy, like many others. Achieving infallibility only occurs at death. Sure, at earlier points in my life, the faults were all I saw. Perhaps because I hadn’t been aware of them in childhood, they loomed all the larger later in life. Whatever. The thing is, as I age, they just seem to matter less and less. Don’t get me wrong; they don’t get glossed over. They just become of lesser consequence. And with that obstruction out of the way, it becomes easier to see the work that went into raising me. Above I’ve listed quite a few of the bits that have gone into the making of me out of potential-me. And these are only the things that I know about.

A Quick Review of Citizens United

2010-01-28T05:53:00.005-06:00

By now you’ve heard about the recent Supreme Court decision in Citizens United v. FEC. If you watched the State of the Union Address, you heard President Obama call out the Court for it’s poor jurisprudence. There are two main reasons why I think Citizens United was, in fact, poor jurisprudence.

First, a Little Background

In 1976, with Buckley v. Valeo, the Supreme Court established that the spending of money to influence elections constitutes symbolic speech. Consequently, if campaign spending is speech, it follows that campaign spending may be protected by the First Amendment under certain circumstances. In some ways, the Buckley decision sits at the center of the current mistake.

After Buckley, the Court and Congress created a series of other mile markers along the campaign finance reform road. Two germane bits of action stand out: the 1990 Supreme Court decision in Austin v. Michigan Chamber of Commerce, and the Bipartisan Campaign Reform Act of 2002 (BCRA), also known as the McCain-Feingold Act. Did you notice when campaign ads on TV started ending with, “I’m So-And-So, and I approved this ad?” Well, that was the most visible effect of BCRA.

BCRA accomplished several things. The provisions important to this discussion prohibited corporations from buying campaign ads directly endorsing a candidate, in proximity to a primary or election. Legally, this posed little problem in part because the Austin decision established that government may regulate the speech of corporations differently than the speech of political associations or individual citizens.

The Court’s New Blunder

In Citizens United, the Court majority established legislation may limit direct contributions by corporations to candidates, but may not limit broadcast election communications. Effectively, this overturns Austin, and strikes down portions of BCRA.

First, without expressly stating it this way, the Court has now established that corporations possess the same full constitutional protections as individuals and associations of citizens. In his majority opinion, Justice Kennedy wrote, “We find no basis for the proposition that, in the context of political speech, the Government may impose restrictions on certain disfavored speakers.” His argument avoids any distinction between me as a speaker, and General Electric Corp. as a speaker. I’m confident that a high school student could spot at least three significant differences between myself and GE. (Here’s one for free: “GE” can’t speak for the entire company; what about those employees, officers, or Board members who disagree with the message GE broadcasts?) Justice Kennedy closes the Court’s opinion by quoting himself from an earlier case:

Citizens must be free to use new forms, and new forums, for the expression of ideas. The civic discourse belongs to the people, and the Government may not prescribe the means used to conduct it.

Yes, the civic discourse belongs to the people. And now, corporations are people too, without any discussion of the matter.

Second, even if the First Amendment covers corporations and individuals equally, that merely means the legislation must meet strict scrutiny (the strictest level of judicial review) in order to properly restrict a corporation’s speech. That the reversed portions of McCain-Feingold were narrowly tailored to achieve a compelling government interest possesses obvious strong arguments. (For a good discussion of how restricting corporate electioneering speech meets strict scrutiny, please read Justice Thurgood Marshall’s excellent majority opinion in the now-defunct Austin decision.) Which is to say, even if you follow Justice Kennedy’s assumption of the previous paragraph, strict scrutiny should still allow BCRA to remain intact.

I again refer you to the nearest high school student. I bet he or she can come up with a few reasons why the government might have a compelling reason to limit corporations’ ability to produce and broadcast campaign-related advertisements.

Chief Justice Roberts’s concurring opinion in Citizens United is, to me, the most interesting, and best reasoned part of the case. Though I dislike the majority opinion, I must admit that Roberts rightfully points out a significant logical problem with the dissenting opinion. He also comes closest to discussing the question of whether a corporation should stand equally to a citizen under the First Amendment. I would love to have read a more thorough examination of this fundamental question. His floodgate argument regarding newspaper opinion pieces also intrigues me, and though I incline toward disagreeing, I would also like to read a fuller discussion of this.

Though Kennedy’s majority opinion didn’t go so far as Justice Thomas’s laughably bad concurring/dissenting opinion (which called for removing even the reporting requirements of BCRA, so no one would ever have to know who sponsored the swift boat ads or how much money Enron spent on elections), it failed to adequately dispute Thurgood Marshall’s arguments from Austin. But it’s worst failing was in simply assuming, without proper exploration, that corporations deserve all the same speech protections that you and I deserve.

Pat Robertson, Cancer on Society

2010-01-13T16:38:00.004-06:00

Conservative wingnuts have outdone themselves today. I cannot think of a sufficiently repugnant metaphor to adequately describe Rush Limbaugh and Pat Robertson. Pustulent genital sores comes close. (Apologies to those with weak stomachs.)

On his radio show, Rush Limbaugh painted the President as being pleased about the Haiti earthquake, as it provides Obama an opportunity to “burnish [his] credibility with the black community – both light-skinned and dark-skinned black community – in this country.” I’m not sure I even understand that. First, are the “light-skinned” and “dark-skinned” black communities really discrete demographics? Who, besides racists, tracks that sort of distinction. Scratch that. Who, besides racists, is even able to define that sort of distinction? I guess the implication Rush tried to make is that because 95% of Haiti’s population is black, the U.S. giving aid will be seen as somehow bolstering Obama’s black cred. Or something. I mean, I’m confused, seeing as how his black cred comes from, you know, being black.

But isn’t giving disaster relief aid simply the human thing to do? It’s what we did, as a nation, after the tsunami, after Katrina, and so on. Haiti had already been the poorest nation in the western hemisphere, before the earthquake essentially destroyed what infrastructure it had. I’m waiting to read reports on how Haiti will even be able to attempt to rebuild. So, in light of all that, clearly light-skinned and dark-skinned African American credibility motivates Obama to send aid, rather than normal compassion.

But Limbaugh couldn’t settle for just one avenue of attack. He also used the Haiti earthquake to – in a move that must have elicited a blubbering girly squee from Glenn Beck – tie Obama back to Communism again. He predicted that President Obama will try to reinstate Aristide’s communist regime in order to rebuild Haiti. Limbaugh failed to summon a scrap of logic to support the argument, so I don’t even know what to do with it.

Instead, I’ll pick up my jaw and move on to the day’s true villain: Pat Robertson. On today’s broadcast of the 700 Club, Robertson baldly stated that the Haitian people brought this earthquake on themselves. I’d love to see his sources, but according to him, the Haitians who successfully revolted against France to gain independence, succeeded because they made a literal pact with the Devil. As a result, Robertson claimed that Haiti has been cursed ever since. His logic? That the Dominican Republic, the nation occupying the other half of the island on which Haiti resides, is prosperous. Never mind that the Dominican Republic has sugar, coffee, tobacco, and tourist industries, while the French had stripped Haiti of its natural resources. (Two thirds of the Haitian population survives by subsistence farming.) Clearly, their deal with Satan has cursed them to bad luck.

The silver lining? That this earthquake gives Haitians an opportunity to turn back to God. Ah, right. At least he’s consistent. This is the man, remember, who claimed that hurricane Katrina was an act of God, smiting us for our abortion policies. (Although, I never understood why God would hit New Orleans instead of the liberal elitist northeast.) Fun fact: he also once guaranteed that the world would end in 1982.[1]

As you dig into Robertson’s past hijinx, you find more disturbing material. For instance, he thinks that a secret organization of Jewish bankers and freemasons rules the world, pulling some sort of international puppet strings. In his 1991 book, The New World Order, he classifies Communism as the work of German-Jewish intellectuals. One of his special targets is Communism, and he even claims that government power brokers were aligning the US with the Soviet Union. Of course, the puppet master behind the puppet masters is Satan, who has been maneuvering world leaders toward a one-world government.

What with his crackpot conspiracy theories and his communism phobia, Robertson is beginning to remind me a lot of Glenn Beck. Neither feels an obligation to support an argument with either reputable sources or logic, and both seem unreasonably excited by ridiculous conspiracy theories, especially if they involve communists. And, they’re both cultists. I’ve written elsewhere about why I think Glenn Beck could legitimately be classified as a cultist, but I doubt anyone would disagree with that assessment leveled at Pat Robertson. The difference, of course, is that Robertson’s cult is a socially accepted evangelical Christian fundamentalism.

But these similarities makes me wonder if the notions espoused by both men are all merely cyclical. An article by Ephraim Radner, written in 1995 about The New World Order, points out three cyclical movements that, when they revolved back into view in the early 1990s behind Pat Robertson, served as tent poles for the Illuminati Thesis (Robertson’s conspiracy of choice): populism, isolationism, and anti-intellectualism. Anyone who has watched even a small portion of Glenn Beck’s commentary material instantly knows that these three themes constitute the core of his shtick.

If I were to take a silver lining out of all this, it is that perhaps now that Pat Robertson has passed the torch of crazy to Glenn Beck, perhaps he will retire from public view. Since he seems unable to cease spouting divisive, inane nonsense, I hope he will at least stop doing it in public. While I am hopeful that education and common sense are the simple cure for this brand of utter idiocy, I remain concerned and ignorant about what really drives this cycle of ideas. So in the meantime, Pat, please, get the hell off the stage.

1. Paul Boyer, When Time Shall Be No More, 138 (1992), available here.

Great Books

2010-01-08T15:47:00.007-06:00

Aristotle wrote, “We are what we repeatedly do. Excellence then is not an act, but a habit.” Our habits speak volumes about us. It strikes me as a corollary that what we love also reveals much about us. And to be clear, I do not mean the things we profess to love. Although, even what we profess to love says much about us.

For instance, when someone tells me that he loves Ayn Rand’s Atlas Shrugged, I instantly know two things: (1) I will never like or respect this person; (2) he’s lying. I firmly believe that only a handful of people on the planet have finished reading Atlas Shrugged (I’m not among them), that those few did it through perseverance rather than enjoyment, and that they did it because one is supposed to have read and loved this book if one is to be considered a literary intellectual. (To which I say: horseshit.) The rest put it down because, in truth, it’s an overblown, underintelligent, mess of a book that gives a good appearance of being intellectually significant, without actually carrying the required substance. And after putting down the book, most people proclaim it a work of profound genius, in order to fit in with (perceived) smart people. But I have digressed.

The point of this post is to discuss a few of the books which I love. I list them in no particular order. My list is not exhaustive; I have loved other books which do not appear here. Why? Because I’m an old fart with a rotten memory. I list these books mainly to reveal a little of myself here, but if the post results in someone picking up a new book and loving it as I have, then I am happy. And lastly, how do you know I actually love all these books and am not merely professing my love for them? You don’t. But in either case, you’ll learn something about me.

Paradise, by Toni Morrison. Morrison’s prose is about as beautiful as any I’ve read. And this book made me think it was about one thing – thoroughly convinced me – because the writing was just that compelling, but then at the end I realized she was really trying to make me think about something else entirely. And going back to reread it with that in mind produced a wholly different, but equally rich experience.

The Lord of the Rings, by JRR Tolkien. The original, and still the template for all sword-and-sorcery fantasy novels. Tolkien started writing these because he felt that the English lacked a mythology as strong and archetypal as Norse or Greek mythologies. He succeeded. Plus, he invented several conlangs in the course of writing his books, so, you know, bonus points.

Neuromancer, by William Gibson. When you read it, remember it was written in 1983. Invented both the word and concept of cyberspace, and the idea of The Matrix. In a sense, predicted the internet in a recognizable form. And in the process, Gibson became the bellwether of a new sub-genre of science fiction.

Anathem, by Neal Stephenson. Cryptonomicon, also by Stephenson, is still one of my top ten books, but Anathem is even better. Brilliant, fun, and brimming with geekery.

A Canticle For Liebowitz, by Walter M. Miller. Sci-Fi classic. Meditation on knowledge and ignorance and human nature and so much more.

[Interruption: Looking at this post, and considering how many books I want to include, it now becomes obvious that this could occupy far more space than you might be willing to read. So from this point forward, I will simply list books and authors, without the exposition.]

Shogun – James Clavell
Zen Flesh, Zen Bones
American Gods – Neil Gaiman
The Graveyard Book – Neil Gaiman
The Wheel of Time (series) – Robert Jordan
Harry Potter (series) – JK Rowling
Percy Jackson and the Olympians (series) – Rick Riordan
Latro in the Mist – Gene Wolfe (also Soldier of Sidon, of the same series)
The Giving Tree – Shel Silverstein
Calvin & Hobbes (series) – Bill Watterson
Picnic, Lightning – Billy Collins (poetry)
Above the River – James Wright (poetry)
His Dark Materials (series) – Phillip Pulman
Foucault’s Pendulum – Umberto Eco
Name of the Wind – Patrick Rothfuss
The Stand – Stephen King
Iron Sunrise – Charles Stross
Glasshouse – Charles Stross
William Shakespeare’s complete works.

In fact, let me end this post with the following. There are a few authors whose work I will purchase, sight unseen, no questions asked, assuming while doing so that I will love it, whatever it is. They include: Neil Gaiman, Neal Stephenson, Charles Stross, Billy Collins, Gene Wolfe, William Gibson. (Shakespeare as well, but since he isn't publishing anymore, my expression wobbles a bit when you include him.) This is a group of authors whose works I will pre-order as soon as I hear a new one is due. I can't even say that about some of my other favorite authors. Even though Toni Morrison has written several of my favorite books, for instance, I also dislike a few of hers. Likewise Stephen King, C.S. Lewis, and others I can't recall right now. I also have loved dearly certain works by Franz Kafka, Albert Camus, Thomas Pynchon, and Herman Melville. And it surprises me every now and then that I just can't get into Kurt Vonnegut or John Irving. I feel like there's something wrong with me for that. A few authors I vehemently dislike and will not read, including, but not limited to: Dan Brown, Stephanie Meyers, and John Updike (less vehemently, but just as consistently). I feel certain I have neglected some works which, at the time, changed my life, but which I now cannot recall. In that spirit, I close by pointing you to an appropriate and wonderful poem by Billy Collins, called Forgetfulness. (Click here.)

Tort Reform

2009-12-12T00:39:00.004-06:00

Michael Getnick, President of the NY State Bar Association, published last weekend, this editorial in the NY Daily News, discussing tort reform. Having been a personal injury attorney, Getnick predictably opposes tort reform. I neither oppose nor support tort reform per se, but would like to see it as part of a discussion about health care reform. Which is why I become so frustrated by knee-jerk reactions like Getnick’s, which exudes false exasperation.

What is Tort Reform?

Some light googling will provide you more information than I care to relate here, but very briefly, tort reform usually involves placing limits on civil litigation. Most typically, these limitations would control when a plaintiff may sue and/or how much money he or she may recover.[1] Numerous shades of each type of limitation exist, so when someone refers to tort reform categorically, you may need to ask for a definition of terms before proceeding with the discussion. For now, let’s just say that the biggest fight is over limiting the monetary award a plaintiff may receive.

Lately, tort reform is mentioned almost exclusively in relation to medical malpractice, as part of health care reform. Typically, those who support universal health care oppose tort reform, seeing it largely as a thinly veiled attempt to shield big businesses from liability. Meanwhile, those who oppose recent efforts at universal health care tend to support tort reform, arguing that it would do more to reduce health care costs than a public option would.

So What’s Going on Here?

Within this context, Getnick pointed out that “approximately 100,000 people die each year due to medical malpractice.” Echoing some common anti-reform arguments, he suggests that these deaths were all preventable, and that while governmental authorities lack sufficient power to curb these losses, litigation keeps care providers in line. So in his rush to reiterate the typical arguments, Getnick fails to spot the fuzzy logic therein. Opponents of tort reform, like Getnick, argue for the status quo of civil litigation, but it’s under the status quo that those 100,000 people die each year. In other words, if litigation is the mechanism capable of preventing malpractice deaths, why do so many preventable deaths occur?

To be clear, I do not argue that medical tort reform would improve these statistics. I merely point out that tort litigation utterly fails to effectively protect patients from malpractice. The argument seems to be that threat of law suits encourages care givers to be more careful. But if so, it fails to sufficiently do so, to the tune of 100,000 deaths per year. So the argument lacks even a semblance of coherence.

Getnick’s piece also attempts to debunk some myths often mentioned in tort reform discussions. But mainly, what he debunks amounts to one myth, which is actually a poor straw man in the first place. The so-called myth goes something like this: if we allow unlimited damages in malpractice cases, we’ll see an explosion of frivolous lawsuits. But no one with a grain of sense actually takes up this notion.

Frivolous suits indeed concern those who want to reform civil litigation, but the current rules on damage awards have been in place for a while, and there is no reason to believe that, absent new plaintiff-friendly rules, we should see any increase in suits. But even in knocking down the straw man of his own construction, Getnick fails to offer a coherent argument.

First, he points out that instead of a lawsuit explosion, the years 1998 to 2008 saw a decrease in the number of tort cases filed in New York, from just under 82,000 to just over 57,000. Second, he reasons that because civil cases often take years to resolve, during which time a lawyer working on contingency fees won’t see a penny, no sane lawyer would file a frivolous suit. Third, the threat of sanctions keeps out some frivolous suits, and both the appeals process and judicial reduction of damage awards serve to balance out the possibility of inflated and unfair jury awards.

Quick incidental question, Mr. Getnick: do you actually believe that even 57,000 New Yorkers per year experience medical malpractice? More importantly, stating that lawsuit filings have decreased does nothing to address the question of whether the current tort litigation system allows too many frivolous lawsuits.

Frivolous suits can be thought of like email spam. Have you ever wondered why spammers send you such ridiculous and obvious scam attempts? Why do they bother sending you this stupid crap about Nigerian diplomats? Well, spamming costs relatively little, and if the spammer sends two million messages to get only one positive response, that one response pays for the entire enterprise. If his success rate is only 0.00002%, that still likely amounts to more money than the average American earns in a year. The same holds true for medical malpractice. A one-third contingency fee from a $10 million judgment easily pays for a lifetime of failed lawsuits.

According to the AMA, more than 60% of medical malpractice claims never settle or go to court, resulting in zero payment for the plaintiff, but those cases cost an average of $22,000 to defend. If the case actually goes to trial, and the care giver wins, she will still spend more than $110,000. So staring down the barrel of $110,000 just to win, a defendant will obviously be motivated to settle. Paying, say, $50,000 to a crackpot to make the suit go away, even if the doctor did nothing wrong, looks better than $110,000 to get a jury to agree that the doctor did nothing wrong. And litigation attorneys know all this. Which is why it’s easy to file a baseless suit. Hey, you might get lucky and get 1/3 of a quick $50,000 settlement. Not bad for a day’s dishonest work. And that’s not to mention getting lucky and finding a likeable client with a sad story, an unlikeable defendant, and a sympathetic judge and jury, all of which could result in a big pay day, irrespective of the merits of the case.

So to say that threat of sanctions or possibility of appeal helps thwart frivolous suits is specious at best, idiotic at worst. And to point out that the number of lawsuits decreased in a given decade does nothing to address the problems that occur in relation to the suits that actually get filed.

Tort reform opponents also usually appeal to the larger societal good from lawsuits, and Getnick is no different. True, people of little means cannot easily affect the political process, but they can fight back through the court system. Suits often do cause companies to change their policies for the better. Et cetera, et cetera. So, basically, again with the straw man? This response seems an overreaction to some perceived movement to drastically reduce or eliminate civil litigation. But no tort reformer actually proposes that.

The most reasonable and reasoned proposed reforms suggest shortening the statute of limitations and limiting noneconomic damages. That’s it. Sure, changing the statute of limitations from 10 years to 3 years would ultimately lower the number of lawsuits, but what’s unreasonable about requiring a plaintiff to get his act together within 3 years of the alleged malpractice? And as for limiting noneconomic damages, just look at California’s MICRA as an example.

The Medical Injury Compensation Reform Act (MICRA), passed in 1975, limits noneconomic damages awards to a maximum of $250,000. Economic damages remain unlimited, so a patient can recover for every negative economic effect he has felt as a result of the malpractice, including future lost earning potential. A plaintiff can be made whole again. Additionally, punitive damages also remain unlimited. Awards for economic plus punitive damages often reach well into the millions or tens of millions, so it’s not as though MICRA has caused victims of malpractice to lose out.

Getnick wrote, in opposition to limiting noneconomic damages, that the family of a malpractice victim “should not be told there is an arbitrary cap on the amount of damages they can receive.” So, an arbitrary cap on the dollar amount we assign to an unmeasurable quantity like pain and suffering is bad, but arbitrarily giving a person’s pain and suffering a dollar value is all right? His stunted argument amounts to this: pain and suffering are entirely subjective and abstract, so to compensate for them, we need to assign an arbitrary dollar amount, but placing an arbitrary limit on this arbitrary number is just plain wrong. And please, won't someone think of the children? Could this perhaps be because 1/3 of a limited number is usually less than 1/3 of an unlimited number? (Go ahead and google California’s MICRA. You’ll notice, curiously, that nearly all the sites stating that MICRA produced negative results belong to civil litigation attorneys.)

Unfortunately, the debate over tort reform has become like so much of today’s political discourse: jammed with so much strident and useless rhetoric as to drown out any meaningful discussion. Proponents of the proposed health care legislation won’t even entertain discussion of tort reform, seeing it as Big Business protecting its bottom line at the expense of The Little Guy. Those anti-reformers like Getnick, who oppose tort reform as an issue discrete from health care, tend to be litigation attorneys who then come off (to me anyway) as ambulance chasers who don’t want limits put on the gravy train. People who oppose the health care bills seem to shout about tort reform as an alternative to universal healthcare, as though the two can’t coexist, and propose laughable reforms that embody the same type of wrong-headedness as trickle down economics.

Those of us moderates stuck in the middle will have to continue waiting for an informed and intelligent debate. Some reasonable reforms to civil litigation might actually solve some problems and perhaps even benefit the majority of Americans. And I’d like to at least hear them enter the debate. Minus the knee-jerk reactions, if you please, Mr. Getnick.

[1] Some key terms and examples:

Collateral Source Rule – Any evidence that insurance (or any other collateral source) will pay or has paid the plaintiff if the defendant is found guilty cannot be admitted into evidence. Some seek to reform this rule to allow such evidence in order to arrive at a just award for monetary damages. Litigation attorneys tend to dislike that notion as it would reduce damage awards, and thereby lower the amount they receive in contingency fees.

Damages – Economic damages = everything that cost the plaintiff actual money. E.g., his medical bills, lost wages for time he spent in hospital instead of at work. Noneconomic damages = loss on which the plaintiff can’t put a price tag. E.g., pain and suffering. Punitive Damages = money the defendant must pay the plaintiff as a punishment; not tied to any specific harm the plaintiff experienced. Since punitive (AKA exemplary) damages don’t represent harm done to the plaintiff by the defendant, most tort reformers want them limited or eliminated. Some also want to limit noneconomic damages. Opponents tend to like punitive damages as a deterrent (and as a way of increasing that contingency fee *wink wink*).

Statute of Limitations – Most states range from 1 to 10 years. Tort reformers tend to advocate shorter limitations. Anti-reformers want plaintiffs to have lots of time to find an attorney and sue.

Legislative Sneakery: A Brief Review

2009-12-07T08:51:00.003-06:00

This article was first published on the Journal of the American Bull Moose, but since they were having a little trouble with some of the hyperlinks, I have reposted in its entirety here.

“Suppose you were an idiot and suppose you were a member of Congress. But I repeat myself.”
Mark Twain

“The only difference between death and taxes is that death doesn’t get worse every time Congress meets.”
Will Rogers

The miracle of Congress is that a person will speak and speak and speak, while saying nothing, and to which no one listens, but with which everyone disagrees. Bills become more about the process, the political grudge matches, than about anything resembling the public welfare. Toward that end, legislators have quite a few sneaky tricks at their disposal. Of course there are the usual, high-publicity stunts like filibuster or sitting on the Senate Finance Committee so you can block all attempts at compromise. And one of my favorite examples from history is the Civil Rights Act of 1964. Opponents who had no interest in either racial or gender equality added language prohibiting gender discrimination, because they thought it would kill the entire bill. The punchline: the bill passed anyway, and the bigots had to swallow their own bitter pill.

But the one that caught my eye this week was this occurrence. To summarize, Senate Democrats launched an opening salvo by proposing that all amendments to the Senate health care bill be published online by the sponsoring Senator. Predictably, Senate Republicans objected. Obviously, the Democrats proposed the idea in order to shame Republicans into dropping some of their more ridiculous amendments, in the hopes that it would speed a trimmer health care bill’s passage through Congress. And Republicans rejected the idea not because it would “limit the ability for the minority to offer amendments,” but because a vast majority of bill amendments and riders would appall the voting public.

To be clear, no Congressman, neither Democrat nor Republican, Senator nor Representative, ever really wants the public to see the riders that attach to bills. This, friends, is the wellspring of pork barrel spending. This is Sampson’s long hair; Superman’s yellow sun; Arthur’s Excalibur. Especially when the rider attaches to a must-pass bill, like a defense appropriations bill.

An Example: The Real ID Act of 2005

In 2005, with little debate and no significant committee hearings, Congress passed a much-needed appropriations bill titled Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005.[1] The name should clue you in. It began life as a defense appropriations bill, but grew by accretion, as Congressmen added Tsunami aid, and one of my personal favorite misbegotten pieces of legislation, the Real ID Act. In turn, the Real ID Act began as a simple one-note bill, but attracted unrelated amendments.

Representative James Sensenbrenner (R) of Wisconsin sponsored the original Real ID Act, which had died in committee. It sat as a solution in need of a problem until the War on Terror came around. Seizing the opportunity, Sensenbrenner and company brought the Real ID Act up as a measure to prevent another 9/11 occurrence, by changing the requirements for government issued photo IDs (i.e. your driver license). Never mind that none of the Act’s provisions, had they been in effect at the time, would have hampered the 9/11 hijackers.[2] In the bill’s progression, certain anti-immigration politicians got in on the game and tacked on new asylum legislation.[3] Despite some opposition,[4] due to the necessity of the defense appropriations contained in the bill, it passed. The end result is a weird amalgamation of defense procurement, driver license requirements, new visa limits for nurses and Australian citizens, waiving of laws having to do with physical barriers at borders, new asylum laws, and relief funds for tsunami victims.

Why?

The driver license provisions of the Real ID Act are a good example of what Public Choice Theory calls Entrepreneurial Politics. I’m going to oversimplify here, so if you’re interested, I can recommend further reading to get a fuller picture of these ideas.[5] Briefly, when negative externalities (e.g. terrorism) threaten the general welfare, legislators will ideally move to produce a more socially optimal outcome (e.g. reduced chances of terrorist attacks). The specifics of the costs and benefits of a proposed solution present us with a model that can often predict the political outcome. When the proposed solution broadly distributes the benefits (here, everyone is safer from terrorist attacks), but places the costs on a relative few (here, mainly DMVs), we often see “entrepreneurial politics” that produce ambitious legislation lacking in specific details, which results in administrative capture,[6] and everyone claims victory.

In our example, the Real ID Act contains very generic language about strengthening the requirements to obtain a driver license or non-driver ID card, but leaves to the Department of Homeland Security all the specifics. Now the legislators can go home to run for reelection by talking about how they supported these tough new anti-terrorist provisions. Meanwhile, resistance from state DMVs kept forcing Homeland Security to backpeddle repeatedly, eventually rendering the Act fairly toothless. Everybody won.

The reason I brought up all this political science is that traditionally health care reform fell into entrepreneurial politics. It offers distributed benefits, (Free health care for all! Woot!), with concentrated costs (only health insurers and certain few providers would have to suck it). In the past we saw ambitious legislation, proposing sweeping changes, which ultimately contained few specific provisions, and which, had it passed, would have run a serious risk of administrative capture rendering it toothless. Legislators could tell voters that they championed sweeping, bleeding heart health care reform, then turn around and tell the insurance lobby that the legislation contains no specifics that can hurt them. The lobbies then focus on whichever agency will be setting the administrative rules, and conduct a little regulatory capture voodoo. Yay, everyone wins! (Except for, you know, us voters.)

But something has shifted. Here, people (voters and Congressmen both) have been somehow convinced that the distributed benefits of health care reform would result in distributed costs; that is, that many would have to bear the burden. And perhaps they are right. I am certainly no expert on the current incarnation of the health care bill. In any case, when a proposed legislative solution creates both distributed costs and benefits, we typically see Majoritarian Politics. In such instances, broad public debates produce highly charged ideological rhetoric (sounding familiar), ultimately resulting in either complete inaction or largely symbolic, ineffective action.

So What’s My Point?

In traditional health care reform battles, under the Public Choice Theory model, we had entrepreneurial politics generating the legislation. That isn’t typically the political environment in which I would expect a majority party to propose what here the Democrats proposed: to make transparent the amendments so that the tricks of the obstructionist minority will be exposed to voters. Such a political climate produces the warm moist environment in which legislative bacteria grows best. We might see a host of riders and attachments that have nothing to do with health care; we might then see passage of a bloated law more noteworthy for its riders than for its primary provisions. The primary provisions undergo the process described above, everyone claims victory, and the riders that snuck through unnoticed by the public now screw with all sorts of things we didn’t know were on the table.

However, we now have a political/legislative environment more resembling majoritarian politics. In such cases, we might encounter a giant, deceptively vague bill that, because of all the counter-provisions, actually accomplishes very little. This IS the type of environment where a tactic like the one proposed by Senators Reid and Lincoln might occur. As such, this news looks like a symptom of a political condition which I think might indicate that any meaningful reform is doomed.

First of all, with something as complex as health care reform, the various proposals encompass more than simply two opposing viewpoints. Thanks to Condorcet’s Paradox (or Arrow’s Impossibility Theorem – the two are similar, I’m not a political scientist, I conflate them a little, sorry), we’re basically screwed then. Because there are numerous considerations, and each person ranks those considerations differently in importance, we may never achieve any sort of consensus.[7] Secondly, Public Choice Theory predicts that we will likely end up with a mostly useless law that allows legislators on both sides crow to their constituents. Yay, everyone wins! (Except for, you know, us voters.)

[1] Pub. L. No. 109-13, 119 Stat. 231 (2005), available at http://www.govtrack.us/congress/billtext.xpd?bill=h109-1268
[2] 151 Cong. Rec. H458 (daily ed. Feb. 9, 2005) (statement of Rep. Jackson-Lee), available at http://bit.ly/63Apo7.
[3] Marisa Silenzi Cianciarulo, Terrorism and Asylum Seekers: Why the Real ID Act is a False Promise, 43 Harv. J. on Legis. 101 (2006), downloadable at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=896533
[4] Letter from Senators Brownback, Lieberman, McCain, Feinstein, Alexander, Leahy, Sununu, Durbin, Hagel, Kennedy, Lugar, and Salazar to Senator Bill Frist, Majority Leader (Apr. 11, 2005) available at http://www.humanrightsfirst.org/asylum/pdf/realid/realid-frist-041105.pdf; see also Press Release, U.S. Senate, Twelve Senators Urge Frist to Keep Real ID Act Off Supplemental Appropriations Bill (Apr. 12, 2005) available at http://www.senate.gov/~gov_affairs/index.cfm?FuseAction=PressReleases.Detail&Affiliation=R&PressRelease_id=953&Month=4&Year=2005.
[5] Here are a few good sources: Michael E. Levine & Jennifer L. Forrence, Regulatory Capture, Public Interest, and the Public Agenda: Toward a Synthesis, 6 J.L. Econ. & Org. 167, 167 (1990); Jean-Jacques Laffont & Jean Tirole, The Politics of Government Decision-Making: A Theory of Regulatory Capture, 106 Q.J. Econ. 1089, 1089 (1991); John W. Kingdon, Agendas, Alternatives, and Public Policies (Longman, 2d ed. 2003) (1984).
[6] For an enlightening discussion of regulatory capture in particular, read the Laffont article, supra note 5.
[7] See also chapter 6 of Beyond Post-Communist Studies: Political Science and the New Democracies of Europe, by Terry Dee Clark: http://bit.ly/6uKXnF. Majority cycling basically means that we’re probably spinning our wheels on this issue.

A Call for New Legislative Drafters

2009-11-24T16:05:00.007-06:00

The Texas State Legislature desperately needs new legislation drafters, or at least proofreaders and editors. And it needs to stop beating the dead horse of gay marriage. A recent flare up of controversy surrounding the state’s constitutional gay marriage ban suggests that the Legislature may have inadvertently banned all marriage.

In 2005, seventy six percent of Texas voters approved a ballot proposition to amend the State Constitution.[1] That amendment, now Article 1, Section 32 of the Constitution, reads:

(a) Marriage in this state shall consist only of the union of one man and one woman.
(b) This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage.

Recently, a candidate for State Attorney General stated that the amendment’s poor wording “eliminates marriage in Texas.”[2] Paragraph (b), according to the candidate, Barbara Radnofsky, poses the problem. Go ahead and reread the provision above, I’ll wait. The drafters apparently didn’t think it was important to include an exception for even traditional marriage, as defined in the PREVIOUS PARAGRAPH. Any “legal status identical or similar to marriage” of course includes any form of marriage, even the one-man-one-woman variety which drafters intended this provision to protect. They simply forgot to write something to the effect of, “except for marriage as defined in paragraph (a), . . .”

Political grandstanding? Probably. But is Ms. Radnosfsky right? Absolutely. Hell, a high school student could probably come up with a dozen more effective alternatives to the language in this amendment. But it seems that a lawyer who graduated at the top of his class from Baylor Law School couldn’t manage it.

What’s worse is the fact that critics pointed out the fatal vagueness in the amendment before voters adopted it. But rather than simply adding clarifying language or redrafting the 38-word amendment, supporters, including Kelly Shackleford (one of its drafters) and Governor Rick Perry rushed to its defense. This is the idiocy I cannot fathom. Why not simply reword it instead of making the language deficiencies out to be some sort of partisan political football?

Texas has been taking whacks at gays for quite some time, and as one might expect, it remains a heated political topic. A deeper look into state legislation reveals additional provisions which further muddy the water. Texas had made sex between members of the same gender a crime, until the U.S. Supreme Court struck down the statute in 2003.[3] In response to that ruling, the Texas Legislature amended the Family Code to specifically prohibit giving effect to “a marriage between persons of the same sex or a civil union in this state or any other jurisdiction.”[4] Section 6.204 of the Family Code not only obviates the new constitutional amendment, but more effectively accomplishes the task, even going so far as to prevent recognition of out-of-state same-sex marriages. So why the redundancy?

It seems that the politicians involved don’t care as much about accomplishing (efficiently or otherwise) specific policy objectives as they care about scoring political points. And apparently voters keep rewarding the behavior. Never mind that two provisions of the Family Code exist in conflict as to whether to give effect to out-of-state gay marriages (sections 6.204 and 1.103), obviously what we needed was ANOTHER anti-gay law. Except this time, someone got the bright idea to make it a constitutional amendment, rendering it much harder to repeal. Too bad they wrote it with all the skill of a Harlequin romance novelist.

While it’s no secret where I stand on the gay marriage issue, my point here isn’t to debate the ridiculousness of Article 1, Section 32 of the Texas Constitution (and it certainly is). My point is that perhaps we need to start vetting all new legislative language through an independent commission of professional writers . . . or 8th graders. Either would be an improvement.

1. David Crary, Texas Voters Approve Ban on Gay Marriage, WASH. POST, Nov. 9, 2005, available at http://bit.ly/70ZcvU

2. Dave Montomery, A Texas-Size Technicality: Marriage May Be Unconstitutional, FORT WORTH STAR-TELEGRAM, Nov. 18, 2009, available at http://www.star-telegram.com/668/story/1772513.html

3. Texas Penal Code § 21.06, titled “Homosexual Conduct,” made “deviate sexual intercourse with another individual of the same sex” a Class C misdemeanor. (http://bit.ly/6niMkj) Lawrence v. Texas, 539 U.S. 558 (2003) struck down the law on substantive due process grounds, under the 14th Amendment. One effect of this ruling was to create find that privacy regarding one’s sexual intimacy is a fundamental liberty protected by the Constitution.

4. Texas Family Code § 6.204. (http://bit.ly/5Iz6uQ) It is worth noting that opponents of Article 1 Section 32 cite Texas Family Code § 1.103, “The law of this state applies to persons married elsewhere who are domiciled in this state,” for the proposition that Texas must recognize all marriages which were validly solemnized in another state. (http://bit.ly/7HHCaU)

Is Useful Political Discourse Dead in America?

2009-11-17T11:07:00.001-06:00

I have a new article in the Journal of the American Bull Moose. Please check it out, leave comments, etc., over there: http://americanbullmoose.com/content/?p=439

Brief summary: political debate in America gave way to partisan debate, which gave way to partisan rhetoric, which has now reached its cancerous end-stage, which could be described as opposing obfuscative misinformation campaigns designed for the dual purpose of swelling the ranks of political cults and making money.

Glenn Beck’s Conspiracy-Mongering Destroys Meaningful Debate

2009-11-13T15:09:00.003-06:00

Glenn Beck continues to spew specious nonsense in order to suppress reasonable discussion of substantive matters. Two specific examples to follow.

The Rockefeller Rant

Beck recently conducted a communist hunt in Rockefeller Center. (UPDATE: Fox has forced YouTube to remove the video segment from Beck’s show. Luckily, the L.A. Times published an article with an embedded copy of the video clip, which as of 11/12/09, still functioned.) In it, he “reveals” all the hidden iconography rampant in New York City, particularly at Rockefeller Center, subtextualized within artwork that has been on display for generations.

Never mind, of course, that he got quite a few of the facts completely wrong. Beck paid particular attention to the Diego Rivera mural that no longer exists, called “Man at the Crossroads.” Please watch the clip; it’s nine minutes long but worth watching. Go ahead, I’ll wait.

First, notice that Beck seems to use the terms fascist and communist almost interchangeably. On the ideological spectrum, they actually sit at opposing polar caps. In any case, Beck argues that Rockefeller hid communist and fascist symbols in the mural. He then takes special glee in repeatedly reminding his viewers that NBC is headquartered at Rockefeller Center (he calls it “the NBC building,” but of course, it has never been named thus). So let’s set a few things straight.

First, “Man at the Crossroads” was not designed as a paean to communism. While Rivera was indeed a communist, Rockefeller commissioned the mural to portray the various socio-political forces at work in humanity during the 20th century. Naturally, that included Lenin, depictions of the world wars, revolutions, etc. Second, Rockefeller commissioned the work in 1932, when NBC was really just a radio network owned by RCA, long before NBC became the Republican-hating, progressive propaganda machine that Glenn Beck imagines it is. Rockefeller didn’t “commission this art for the lobby of NBC,” he commissioned a painting, gave Rivera a theme, and planned to place it in the lobby of HIS building. NBC was not even a footnote. Rockefeller himself was uncomfortable with the depiction of Lenin, which he noticed while the mural was half-finished, (i.e., before it was visible to the public or to reporters). When Rivera refused to remove Lenin from the mural, Rockefeller fired him and removed the half-finished mural. (Also, it is worth noting that Lenin is not depicted as “the savior,” as Beck states; he’s one small face in a sea of symbols, granted no particular comparative importance.)

Clearly, the actual story bears no resemblance to the one told by Beck in the clip. But since the real story leaves no room for communist-fascist-NBC conspiracy theories, Beck elects to tell his own fabrication. And he imparts this so-called knowledge as though revealing the secret knowledge of God. Near the end of the clip he states:

Don’t let any of these people ever tell you anything other than the truth, and that is, early 20th century progressives and the progressives of today – it makes sense that we’re headed down this road. It makes sense that you feel a little uneasy, and everything seems to be a little hidden. It’s not if you look – all of the images that I’ve shown you here, thousands of people walk by every single day. . . . I’m trying to show you the things that seem to be hidden, but they’re not. They are out in plain sight. Those with eyes will not see, and those with ears will not hear. You’re awake. You need to see the things that are in plain sight. Progressives, fascists, communists: now what do they all have in common, today? Well that’s something you’re going to have to figure out.

Notice, lastly, that Beck stops short of actually completing most of his statements, thereby avoiding liability for slander or directly lying. Instead, he implies the existence of these hidden communists in America, stops short, and leaves the viewer with, “Well that’s something you’re going to have to figure out.” Thanks, Glenn, for leading me to the water and telling me I can drink on my own.

The Anti-Volunteerism Rant

Apparently, volunteerism, as promoted by the Entertainment Industry Foundation, is part of a communist plot by President Obama. In case you don’t want to watch another six and a half minutes of Glenn Beck, I’ll summarize. (Also, there’s an article here, containing a transcript of the clip.) The EIF is a large non-profit charitable organization involving many of the big players in the Hollywood entertainment industry. In October, it announced a program to promote public service, spanning 60 network and cable television programs. The idea is to incorporate both PSA ads and plot lines within shows, to encourage people to get out and volunteer.

This clearly communist (or is it fascist? Beck never can seem to tell the difference) plot to brainwash our children riles Glenn Beck. He quotes from a memo distributed by EIF as though proof that Obama is behind everything (when in fact the memo merely refers to the President’s inauguration address). The memo states that, “Obama has called for a new era of responsibility.” (Oh, the evil! Beware an era of responsibility!) Paleoconservative pundits like Beck seem to be trying to forge a link, per usual, between Obama and the “liberal elite media.” Oh, by the way, Fox is as entangled with the EIF as NBC.

Quick digression: how great is “liberal elite media” as a thought-terminating cliché? Such a simple way to describe a huge seething mass of information-spouting professionals. Never mind that the Glenn Becks and Bill O’Reillys are themselves part of the media; they never attempt to help you discern which media outlets belong to this Obama-controlled puppet elite, and which are presumably independent . . . except for MSNBC and Fox. Those lines are clearly drawn. End digression.

So what exactly is wrong with a large portion of the entertainment industry answering the President’s call to public service? Dinosaur conservatives want to make this into a giant conspiracy, whereby Obama employs his puppet media to indoctrinate people. And turn them communist. Or fascist. And gay.

The theory goes something like this: your favorite sitcom encourages you to volunteer; you go to www.Serve.gov to sign up; they direct you to volunteer for ACORN or Planned Parenthood. The truth, of course, is a bit more nuanced.

Here, John Nolte claims that if you type “health care” into the search engine of Serve.gov, “all kinds of Planned Parenthood openings pop up.” So I tried it. I clicked through 8 pages of results from the “health care” search, without finding Planned Parenthood once. Even if they do show up eventually, I passed by quite a few church organizations. Here are two examples of anti-abortion organizations looking for volunteers, found via searching “health care” on Serve.gov. The point is, this site is a way to connect people to local volunteer organizations. If there are Planned Parenthood clinics in your neighborhood, and they need volunteers, they’ll show up as options for you . . . along with volunteer opportunities with anti-abortion Christian groups. Serve.gov is a clearinghouse, nothing more. The point is to get you to go out and volunteer with a group that means something to YOU.

Here, Dana Loesch claims that if you type “ACORN” into the search field on Serve.gov, you get, shockingly, a listing for an opportunity to volunteer with ACORN. Wow, revolutionary. For fun, I searched for “Christianity.” The first listing in the search results was for a “volunteer prayer intercessor.” So I guess if I type my interest into the search box labeled “what interests you,” it actually delivers what I’m searching for. Again, this is revolutionary. Loesch then proceeds to state that, regarding the ACORN volunteer position, “They’re unclear regarding financial reimbursement; though past recruitment, like the Craigslist ads in St. Louis, advertised for . . . ‘$90 a day’.” The ad makes no mention of financial reimbursement because it’s a volunteer position. Loesch also attempted to imply that this Craigslist ad and it’s $90, bearing some undefined relationship to Serve.gov, amounted to taxpayer money going to people for the purpose of promoting the President’s health care legislation. She made no attempt to actually connect those dots, instead simply mentioned them in proximity to one another, hoping her cognitively lazy audience would make the jump. ACORN is not funded by the government, and their volunteers don’t even get paid, so there’s a big gap to jump.

Glenn Beck, however, did not bother to elucidate even this much of a crackpot theory in his rant. He did, though, point out this brilliant nugget: “Volunteering is working for free. Remember that. Glad you’re part of this movement.”

So, wait, volunteerism is communism because it amounts to working for free? Remember when President George W. Bush instituted his own volunteerism initiative? Not a peep from the communist-under-every-rock types like Beck. George H.W. Bush even got in on the party! (Remember his whole “thousand points of light” thing? Yep, that was volunteerism.) Benjamin Franklin helped create the first volunteer fire department in Philadelphia. But I guess that volunteerism is all right if it’s suggested by a sacrosanct founding father (and occurred 112 years before Marx and Engels published the Communist Manifesto).

In both these examples, Glenn Beck makes it clear that he has no interest in actually informing his viewers. He prefers to suppress facts, invent stories, and paint conspiracies where none exist. His type of rhetoric is a plague which enfeebles the minds of his viewers.

Further Replies, Responses, and Comments

2009-10-20T10:01:00.000-05:00

Wes Brown, over at the Journal of the American Bull Moose wrote a good reply to my response to his article, which in turn was, one could say, an unintentional response to my first post here. I responded to him via email, which the editors of JABM included with Wes's article.

The exchange can be found here: http://americanbullmoose.com/content/?p=389

To recap:

I posted an article on this blog, stating a case for President Obama deserving the Nobel Peace Prize.
Wes Brown wrote his own article, on the JABM (unaware of my article, but stating many of the things I was trying to argue against), stating a case for President Obama not deserving the Nobel Prize.
I replied here.
Mr. Brown responded to the arguments in my follow-up post, with a second article on JABM. JABM included my counterargument, in its posting of Wes's article. That two-part exchange can be read here.

Peace Prize Follow-Up

2009-10-16T15:14:00.005-05:00

Wes Brown, over at the Journal of the American Bull Moose, wrote a good article about why President Obama does not deserve the Peace Prize. (Article found here.) I stand by the conclusions of my previous post, but wanted to clarify a few things in light of Wes's article, and partially to respond.

In pointing out Obama's lack of demonstrable accomplishment, Wes points out, "The Guantanamo Bay detainment camp is still open. The economy still sucks. The war in Afghanistan is still going as is the war in Iraq." This typifies the response I've noticed from Americans (including my own initial response). First, let me ask what our economy has to do with world peace? I mention it because it seems that people who think he has done nothing to further peace are really just frustrated that he has yet to accomplish much of what was promised to us, as Americans, during his campaign. This sentiment that he hasn't done what he was supposed to do gets transferred to the Peace Prize. Second, Obama started neither of those two wars, and pulling out all our troops on January 21, 2009 would have been indescribably disastrous. So, while we might debate his actions to bring those wars to a close, it is demonstrably unfair to count against him -- within the context of the Nobel Prize -- the persistence of these wars.

Americans were promised a better economy and an end to the Iraq and Afghanistan wars; he hasn't yet delivered, so many Americans feel gyped. "He hasn't done anything yet." Translation: "He hasn't done the things that caused me to vote for him." Let's consider the crazy notion that the Nobel committee might have other criteria for awarding the prize.

Which brings me to my next point. The Nobel Committee awarded Obama the prize "for his extraordinary efforts to strengthen international diplomacy and cooperation between peoples." Not, you'll notice, for his magical ability to end wars and make whole the American economy.

Example: the European missile shield. I still don't understand why a bigger deal was not made of this, here, in the U.S., but elsewhere, (like Poland for instance), this was big news. In short, the Bush Administration insisted on a missile defense system in eastern Europe, to protect against so-called rogue nations like Iran. Understandably, Russia felt threatened. The back-and-forth involved Russia issuing veiled threats of nuclear strikes in Europe, and conducting troop maneuvers in violation of some treaties.[1] Obama has modified the missile shield proposal sufficiently to allow Russia to back down and eastern Europeans to sleep easier.

Example: Reacting to the Bush administration's animosity, Hugo Chavez publicly courted Russia, suggesting that it station troops in Venezuela. While Obama's relationship with Chavez is not exactly a Nick Nolte / Eddie Murphy buddy cop movie, our countries have reopened diplomatic discourse, and Chavez has made no further move toward bringing Russian troops to South America. Also, agree with the move or not, we are all well aware of the gestures Obama has made toward Cuba, by way of Chavez.

Example: Rather than calling it part of the Axis of Evil (seriously? Axis of Evil? Are they, like, sith lords or something?), Obama attempted a more moderated diplomacy with Iran.

Now, the effects and ultimate outcome of these examples remain to be seen, and their advisability may be legitimately debated. And admittedly, much of Obama's actions in these cases occurred after the Nobel Committee nominated him (though, one should note, before they cast their final votes). But that's not the point. The point is that his administration has marked a hugely significant change in world diplomacy.

Remember how disastrous John Bolton was as U.S. Ambassador to the U.N.? I wouldn't blame you if you don't, seeing has how most Americans have been blissfully unaware of just how much damage he did. He said, "There is no such thing as the United Nations. There is only the international community, which can only be led by the only remaining superpower, which is the United States." He also famously wrote that "the United Nations can be a useful instrument in the conduct of American foreign policy." Bolton was abrasive, to be sure, but he merely symbolized a dangerous course of American diplomacy, which Obama has steadily been correcting. Let's also not forget that Obama did things before January 21st. The last few years of his life have been, at least partially, dedicated to changing the American course. If you want an accomplishment, one way to look at it is that he has been striving to change an overriding American mentality, and getting elected President roughly symbolized the achievement of that change.

And it has had an immediate effect on the world. Further examples here, here, and here, of what Obama represents.

Which brings me to my last main argument, which is that the Nobel Peace Prize is not only awarded to an individual. It's awarded to a pseudo-movement, a capital-E Effort. Obama represents a movement in America to change what had been shaping the entire world's politics for the past eight years. As such, he has already accomplished substantive changes, and, as usual with Peace Prize winners, still has a long row to hoe. When Wes Brown argues that the Prize requires some sort of sacrifice, I think that (1) he underestimates the sacrifices that Obama and his family have made for the President's career, and (2) he misses part of the purpose of the award. The Committee didn't award the Peace Prize to Mandela for sitting in prison for 27 years, likewise it didn't award Martin Luther King, Jr. the prize for being jailed. It awarded these men the prize for spearheading movements that changed the world. Personal sacrifice seems to often come attendant to such lives (Carl von Ossietzky for instance), but it is not an award criteria. Wes, please review some of the other Prize Laureates, like Woodrow Wilson, Willy Brandt, Sir Austen Chamberlain, Charles Gates Dawes, and Jimmy Carter, for example.

Many Americans seem to think the presidency is just a good gig, but it's worth remembering how heavy a yoke it is. To attain the office, especially for the purpose of making the country and the world a better, more peaceful place, requires a life's dedication. THAT is what the Committee awarded the Nobel Prize.

--------------------------

[1] For a fuller discussion of the U.S.-Russia back-and-forth, hit up your Google. Some examples of what went on: Russia got miffed and rejected the idea of cooperating with us on the missile shield; it went from miffed to pissed, threatening to target European sites with its own missiles; hilarity ensues -- Russia actually warned about using its nukes on Poland; more warnings, followed by illegal troop exercises. Bush wouldn't back down, and neither could Putin or Medvedev. But of course, because it involved missiles over there, no one over here seemed to care all that much.

President Obama Does, In Fact, Deserve the Nobel Peace Prize

2009-10-12T14:26:00.007-05:00

On Friday I was going to write a blog post about President Obama’s Nobel Prize. In the time since then, I have completely reversed my opinion. Initially I was surprised and frustrated by the award; despite the fact that I tend to agree with and support Obama,[1] like many others I felt that he had achieved nothing to deserve the Prize, and that the award rendered the Prize less meaningful. But I have been slowly coming around to the idea that the Prize is sometimes simply awarded for efforts, not concrete achievement. So I planned to write a Monday post about that. Sadly for me, others – more articulate others – beat me to the punch.

Rachel Maddow’s video commentary laid it all out beautifully. The clip is eleven minutes long, but well worth watching in its entirety. David Kaiser also wrote a thoughtful and well-reasoned perspective on the award, over at History Unfolding. An American friend of mine now living in Norway explained to me how most Norwegians are proud of the Prize “not being merely a clap on the back for past achievement, but also an accessory toward creating a more peaceful future,” which is more in keeping with Alfred Nobel’s vision.

This idea is at the core of why many Americans, even devout Obama supporters, seemed so baffled by this year’s results. We are used to “prizes” being awarded retrospectively for accomplishment (e.g., the Oscars, Emmys, and Tonys; MVP awards, etc.). Anything awarded prospectively is more of a scholarship, grant, or fellowship, and even those tend to be based on promise as demonstrated by past achievement. For example, the MacArthur Fellowship’s purpose is to encourage creative folks to, well, create. Which is to say, the John D. and Catherine T. MacArthur Foundation gives a person $500,000, installed quarterly over five years, with no strings attached, on the hopes that he or she will do some good work. From the Foundation’s website: “The fellowship is designed to provide recipients with the flexibility to pursue their creative activities . . .”

But if you look at a list of the fellowship recipients, most of them had already achieved substantial success by the time they received their MacArthur Fellowships. And more to the point, if you ask the average person on the street what the MacArthur Fellowship is, and you’ll likely receive a blank stare. Prospective awards run counter to the American mindset. There’s a line from the first episode of the TV show Firefly that keeps running through my mind: I do the job, and then I get paid. That’s the mentality of most Americans, and rightfully so. But this attitude then causes a bit of cognitive dissonance for folks like me, who want Obama to win the award, and want him to deserve the award, and understand the idea of rewarding potential, but who also wonder, “he didn’t do the job, so why’s he getting paid?” For folks already disinclined to celebrate any Obama success, this do-the-job-then-get-paid mentality simply causes outrage.

Rachel Maddow’s piece highlights the fact that several notable past Peace Prize recipients had not accomplished their goals at the times they were awarded their respective prizes.

1984 – Archbishop Desmond Tutu, for his efforts to topple apartheid in South Africa. South Africa didn’t overturn apartheid for another ten years.
1935 – Carl von Ossietzky, a journalist, for challenging the Nazi’s militaristic policies. He died in a concentration camp in 1938.
2002 – Jimmy Carter, for his efforts toward Middle East peace. How’s that coming along?
2003 – Shirin Ebadi, for her efforts toward human rights and democracy reform in Iran. How’s that coming along?

I will also point out Martin Luther King, Jr.’s award, and Al Gore’s award. The day after King’s award, he delivered a lecture in Oslo on The Quest for Peace and Justice. Though he never saw true racial equality in his lifetime (and some would argue it still doesn’t exist), the important thing to him was the quest for it.

We should remember that, unlike even the Nobel prizes for literature, physics, chemistry, medicine, or economics, the Peace Prize is awarded primarily for the quest. If you read through the past recipients, you’ll find the word “efforts” recurs frequently. Peace is not something ever truly attained. It’s not like hitting the most home runs, where you accomplish the goal, then you’re done and nothing ever changes it. Peace can always be, and is frequently in danger of being, reversed. Therefore we should celebrate and reward the efforts toward its end, because they need be unending.

[1] But don’t think I’m drinking the Kool-Aid. There are plenty of instances when I disagree too (Come on, can we at least discuss tort reform?); perhaps I’ll dedicate a future blog post to convincing certain friends of mine (ahem, Paul) that I don’t blindly support Mr. Obama, but for now suffice to say I’m an idiot minion of no one. Except maybe of my fiancée. And my dog. But that’s it.

Judicial Credibility: Caperton v. Massey and Constitutional Recusal Requirements

2009-10-07T14:13:00.008-05:00

Earlier this summer, the U.S. Supreme Court issued a modestly groundbreaking ruling on constitutionally required judicial recusal.[1] The case, Caperton v. A.T. Massey Coal Co.,[2]> garnered significant public attention before it ever reached SCOTUS. In fact, the underlying story proved so dramatic that John Grisham used it for the basis of his most recent novel, The Appeal.[3] Caperton represents the Court’s first major case regarding disqualification of judges since the 1970s. The Court, by a 5-4 majority, held that the Due Process Clause of the 14th Amendment requires a judge to recuse himself to avoid the probability of bias, and that within the framework of judicial election campaign contributions, a multi-factor test may objectively determine such a probability.

Background: David & Goliath

About a decade ago, Hugh Caperton was successfully running Harman Development Corporation and Harman Mining Corporation (A.K.A. The Little Guy).[4] Caperton grew up in the coal mining business, and his company represented a comparatively small operation in the Big Coal landscape of West Virginia.[5] By contrast, A.T. Massey Coal Company, run by CEO Don Blankenship, is the state’s largest coal producer and the fourth largest in the nation (A.K.A. The Evil Empire).[6] Our David and Goliath had several run-ins, but the ultimate fight began with Massey coveting the business of a Harman customer named LTV Steel Corporation.[7]

In short, Massey purchased the conglomerate from which LTV traditionally purchased all its coal.[8] That conglomerate had been the middle man between LTV and Harman. Massey then forced LTV to either buy its coal from Massey, or to abandon its relationship with the conglomerate, thereby eliminating nearly all Harman’s business.[9] Massey caused this to occur too late in the year for Harman to find alternative buyers.[10] These events forced Harman to halt operations and close its doors.[11]

Subsequently, Caperton and Harman sued Massey for tortuous interference, fraudulent misrepresentation, and fraudulent concealment. The legal battle became epic, involving four years of pre-trial and two years post-trial litigation.[12] In August 2002, a West Virginia jury rendered a verdict for the plaintiffs totaling over $50 million.[13] When West Virginia Circuit Court Judge Hoke finally ended all the post-trial legal tap dancing, he stated that the jury had “properly” concluded that Massey’s and Blankenship’s conduct “was reprehensible.”[14] The only option remaining to Massey was to appeal to the West Virginia Supreme Court of Appeals. CEO Don Blankenship publicly vowed to do so, but first he wanted to go shopping for a new judge for the Court.[15]

Don Blankenship: One of the 13 Scariest Americans

In 2006, Old Trout Magazine published a series of stories collectively titled “The Thirteen Scariest People in America.”[16] The series named Don Blankenship the nation’s “scariest polluter.”[17] In addition to highly destructive strip-mining techniques, his coal operations produce over 100 billion gallons of “a toxic black sludge,” which seeps into groundwater near residential areas and schools.[18]

As if destroying the environment were not bad enough, Blankenship also helped dismantle organized labor, sometimes violently.[19] Massey is also one of the most delinquent coal companies in West Virginia in paying its premiums into the state Workers’ Compensation Fund.[20] And in the political realm, Blankenship possesses a long history of divisive involvement.[21] Then, when reporters questioned him about photos of him vacationing with WV Supreme Court Justice Elliot Maynard, with a Massey case pending before the Court, he threatened to shoot the reporters.[22] This villainous public persona certainly makes it easier to believe that Blankenship specifically intended his campaign contributions to swing the appeal in his favor.

Justices for Sale! Collect Them All!

West Virginia’s highest court, the Supreme Court of Appeals, is the state’s only appellate body.[23] So after A.T. Massey lost disastrously at trial, only one chance at an appeal remained. But Blankenship had been down this road before, and knew the five-justice Supreme Court had historically and repeatedly ruled against Massey.[24] However, this also presented Blankenship with an opportunity: of the three justices who tended to vote against Massey, one of them, Chief Justice Warren McGraw, needed reelection that November.[25]

Justice McGraw’s Republican challenger, Brent Benjamin, a political newcomer, possessed no experience as either a litigator or judge.[26] Because the McCain-Feingold Bipartisan Campaign Reform Act prevented Blankenship from directly contributing huge sums to Benjamin’s campaign, Blankenship established a 527 political action group named “And For the Sake of the Kids” (“AFSK”).[27] It appears that, at least at first, Brent Benjamin had no idea who or what AFSK was.[28]

AFSK sponsored advertisements on billboards, radio, and television; it instigated incessant robocalls, to the extent that even the McGraw campaign headquarters received several per day; it even produced a mock documentary and purchased airtime to show it on a local TV station. Always, these efforts featured vicious negative (and sometimes borderline slanderous) rhetoric about McGraw.[29] It would be hard to argue that an unknown attorney with little trial and no judicial experience would have defeated Warren McGraw – a well-known, respected incumbent who had also previously served in the state Senate – without the multimillion dollar support of AFSK. Perhaps sensing this, Benjamin attempted to address the notion in his victory speech: “I can tell you I am not bought by anybody.”[30]

Obviously Blankenship is not the first to try changing the makeup of a court with money. From 2000 to early 2004, the U.S. Chamber of Commerce spent over $100 million on 24 judicial elections in 8 states.[31] According to a 2006 report by the Brennan Center for Justice, spending on judicial elections has increased to disturbing levels, and continues to trend upward.[32] Whereas traditionally lawyers represented the largest portion of donors, the distribution appears to have shifted toward business donors, with the latter now accounting for nearly half of all money donated to judicial campaigns.[33] All this money begs the question of influence, namely, do judges actually feel compelled to favor their campaign contributors? Many other court cases have raised this issue, but the U.S. Supreme Court waited until Caperton to grant certiorari.

What SCOTUS Had Previously Ruled

Constitutional due process guarantees a right to a fair hearing, but what renders a trial unfair? In 1955, the Court stated: “Fairness, of course, requires an absence of actual bias in the trial of cases, but our system of law has always endeavored to prevent even the probability of unfairness.”[34] Actual bias of a judge obviously renders a proceeding unfair, but that case, In re Murchison, further established that a mere probability of bias invokes the Due Process Clause.

An earlier case, Tumey v. Ohio, set a relatively low standard for requiring recusal, but has rarely been followed, and when cited has often been distinguished. Arising during prohibition, Tumey involved an Ohio law that financially rewarded public officials for successfully prosecuting prohibition cases.[35] In striking down the law, the Court ruled that circumstances which would tempt the average judge, implicate due process.[36] It is worth noting that in Tumey, the temptation in question was a financial interest of the judge in the outcome of a criminal trial. But the notion that “any possible temptation to the average man” creates a constitutional violation remains a powerful one.

Decades later, the Court’s 1971 ruling in Mayberry v. Pennsylvania established that due process is implicated when circumstances are such that the judge “is not likely to maintain that calm detachment necessary to deliver fair adjudication.”[37] Then, in 1975, the Court ruled that extreme facts may create a probability of actual bias too high to be constitutionally tolerable.[38]

Taken together, these cases certainly establish a general doctrine that, under certain circumstances, the potential bias of a judge violates due process rights. However, the specifics of each ruling make formulating a clear black-letter rule next to impossible. And perhaps that is by design. As the Court stated in Bracy v. Gramley, the basic requirements of due process establish a constitutional floor, not a uniform standard.[39] More apt here, in FTC v. Cement Inst., the Court found that most matters relating to judicial disqualification do not rise to a constitutional level.[40] So in some ways, it seems the Caperton ruling maintains a tradition of avoiding a clear standard in this area.

The Caperton Ruling

During oral arguments in Caperton, Justice Scalia claimed, “There are only two categories of cases, only two categories. One – one is where the judge is almost the aggrieved party in conducting contempt proceedings against someone who is contemptuous of that very judge, and the other one is cases where the judges have a financial interest.”[41] Justice White stated it more simply in Withrow v. Larkin: “Among these cases are those in which the adjudicator has a pecuniary interest in the outcome and in which he has been the target of personal abuse or criticism from the party before him.”[42] The main problem that Caperton presented the Court was that its facts fit into neither category neatly.

Justice Kennedy, writing for the majority in Caperton, readily admitted that judicial elections constitute a framework not previously addressed by the Court.[43] A pivotal campaign contributor like Don Blankenship creates no future pecuniary interest for the judge, but merely a debt of gratitude. Scalia focused heavily on this point during oral arguments. Therefore the crux of this issue is whether the temptation felt by a debt of gratitude rises to a constitutionally unacceptable level of potential bias.

Justice Benjamin’s defense to accusations of bias relied on the fact that no actual bias could be shown.[44] But the Supreme Court decided such a finding is unnecessary. In part, this is because such a finding would necessarily be based on the judge’s own introspection and subsequent determination about his own motives.[45] Due process instead requires an objective test. Using Withrow, Tumey, Mayberry, and others, the majority held that the mere probability of bias violates due process, and may be determined “based on objective and reasonable perceptions.”[46] Specifically, within the framework of campaign contributions, “The inquiry centers on the contribution’s relative size in comparison to the total amount of money contributed to the campaign, the total amount spent in the election, and the apparent effect such contribution had on the outcome of the election.”[47] The Court also noted other factors to consider, such as the timeframe of the contributions, in relation to the pendency of the case.[48]

In summary, this ruling fundamentally establishes a new category of judicial interest as a potential source of bias: campaign contributions. Justice Kennedy’s opinion stands for the idea that by evaluating this list of factors, one may objectively determine the existence of a probability of bias arising from a judicial election.

The kernel of Chief Justice Roberts’s dissenting opinion argues that the two previously exclusive categories giving rise to constitutionally mandated recusal are inherently objective.[49] Either a judge has a pecuniary interest in the outcome of the case or he doesn’t; either he was the target of personal abuse by one of the parties or he wasn’t. Now, Roberts seems to argue, the issue of recusal must necessarily be taken to another court, which must evaluate a list of factors in order to determine whether a mere probability of bias existed. This, Roberts argues, “provides no guidance to judges and litigants about when recusal will be constitutionally required.”[50] Secondarily, the dissent argues that beyond those two previously recognized categories, questions of recusal were properly handled by legislation or rules of professional responsibility, not by constitutional mandate.

Perhaps the best way to cut the Gordian knot is to simply eliminate judicial elections, or at least judicial campaign contributions. But as things stand, Chief Justice Roberts may be right in his floodgates argument, namely that savvy litigants will be able to stall proceedings by bringing allegations of a probability of bias. It’s an easy accusation to make, and a determination now requires constitutional analysis.

[1] Technically disqualification differs from recusal – the former is mandatory, the latter voluntary – but the terms are often used interchangeably.

[2] Caperton v. A.T. Massey Coal Co. (Caperton III), No. 08-22, slip op. (U.S., 2009), available at http://www.law.cornell.edu/supct/pdf/08-22P.ZO

[3] Paul J. Nyden, Novel Linked to State Election, Charleston Gazette, Jan. 30, 2008, http://www.wvgazette.com/News/200801290715

[4] Caperton v. Massey (Caperton II), No. 98-C-192, 2005 WL 5679073, slip op. at 6 (25th Cir. W.V., March 15, 2005) (order denying Defendants’ motion for judgment as a matter of law). The Harman mines sold a particularly high grade of coal, and so was able to maintain its niche.

[5] See Robert Barnes, Case May Define When a Judge Must Recuse Self, Wash. Post, Mar. 2, 2009, at A1, available at http://www.washingtonpost.com/wp-dyn/content/article/2009/03/01/AR2009030102265.html.

[6] Ian Urbina, Wealthy Coal Executive Hopes to Turn Democratic West Virginia Republican, N.Y. Times, Oct. 22, 2006, available at http://www.nytimes.com/2006/10/22/us/22blankenship.html (calling Massey’s CEO “the chief executive of the state’s largest coal producer”); Mining Case Shows Sooty Side of Big-Money Judicial Elections, Op-Ed, USA Today, Apr. 2, 2009, at 10A, available at http://www.usatoday.com/printedition/news/20090303/editorial03_st.art.htm.

[7] Caperton II, slip op. at 6; see generally Michael Shnayerson, Coal River, 85-90 (2008) (describing the history of the relationship between Hugh Caperton and Don Blankenship and their respective companies).

[8] Caperton II, slip op. at 6.

[9] Id. at 6-9.

[10] Id. at 9.

[11] Id.

[12] Id. at 1.

[13] Caperton v. Massey (Caperton I), No. 98-C-192, 2002 WL 33946557 (25th Cir. W.V., Aug. 15, 2002) (judgment order). The jury awarded Harman more than $34 million, and Caperton personally over $15 million.

[14] Id. at 27, 29.

[15] Barnes, supra note 4.

[16] The Thirteen Scariest People in America, Old Trout Mag., Oct. 30, 2006, available at http://www.alternet.org/story/43586/

[17] David Roberts, Scariest Polluter: Don Blankenship / CEO of Massey Energy Co., in The Thirteen Scariest People in America, Old Trout Mag., Oct. 30, 2006, available at http://www.alternet.org/story/43586/. The article details the way Massey blasts ridge-tops off mountains to strip-mine for coal, destroying the land to the extent that it precludes other industries moving in to redevelop or repurpose the area. Id.; see also Urbina, supra note 4.

[18] Roberts, supra note 17.

[19] Thirty years ago 95% of coal miners belonged to unions; according to some, thanks to Blankenship’s actions, less than 25% belong to unions today. Specifically, merely 3% of Massey’s workers remain unionized. See Urbina, supra note 5; Roberts, supra note 17; Bernard Condon, Not King Coal, Forbes, May 26, 2003 (calling Blankenship “the man who broke the back of the coal union”), available at http://www.forbes.com/forbes/2003/0526/080_print.html. In 1985, a showdown between Blankenship and a mineworkers’ union resulted in a 15 month strike, one shooting death, 91 hospitalizations, and three destroyed armored cars.

[20] Shnayerson, supra note 6, at 85.

[21] Urbina, supra note 4; Adam Liptak, Case May Alter Judge Elections Across Country, N.Y. Times, Feb. 14, 2009, available at http://www.nytimes.com/2009/02/15/washington/15scotus.html. Blankenship has been linked to another WV Supreme Court Justice, and has spent $6 million recently in an effort to gain more Republican seats in the state legislature.

[22] See Liptak, supra note 22; Brian Ross & Maddy Sauer, Coal Boss: If You Take Photos, “You’re Liable to Get Shot”, ABC News, Apr. 3, 2008, available at http://abcnews.go.com/Blotter/story?id=4582452&page=1

[23] The Supreme Court of Appeals, http://www.state.wv.us/wvsca/supreme.htm. The five justices of the Court sit for 12-year terms, which they must win by general election. Only 10 other states, and the District of Columbia, similarly process all appeals through a single court. See also National Conference of Appellate Court Clerks, http://www.appellatecourtclerks.org/links.html

[24] Shnayerson, supra note 6, at 78 (stating that he was “[t]ired, above all, of the West Virginia Supreme Court of Appeals, to which those cases inevitably ascended, and where, to Don’s profound annoyance, three of the five justices seemed to go out of their way to find against Massey Energy”).

[25] Id.

[26] Id. at 79.

[27] Id. at 83. Someone asked Blankenship if the name of his 527 indicated an intention to help children – a reasonable question considering 100% of the group’s activities thus far had been conducting a smear campaign against a Supreme Court justice. He replied that he intended to start a foundation after the election, to provide clothing and necessities to poor children. However, Blankenship never followed through on that promise. Id. at 86.

[28] See id. at 83-84.

[29] Shnayerson, supra note 6, at 83-85. The worst of them accused McGraw of letting a child rapist go free. Id. at 79 (quoting a commercial as saying, “Letting a child rapist go free to work in schools – that’s radical Supreme Court Justice Warren McGraw.”). It is worth noting that the rapist in question never actually went to work in any school. Id. at 81.

[30] Shnayerson, supra note 6, at 95.

[31] Id. at 79. The U.S. Chamber of Commerce is a federation of businesses, and state and local chambers of commerce. Coincidentally, Don Blankenship also serves on its Board of Directors. It has contributed to judicial campaigns largely in order to unseat Democratic, pro-union judges.

[32] James Sample et al., The New Politics of Judicial Elections 2006 (2007), available at http://www.brennancenter.org/page/-/d/download_file_48787.pdf. The report goes on to note that in 2006 all 11 states which require election of Supreme Court justices held such elections, and that television advertisements in these campaigns averaged $1.6 million per state. Business donors contributed 90% of that money, and overall donated $15.3 million, more than double the amount donated by lawyers. See also, Bert Brandenburg & Leo A. Schotland, Justice in Peril: The Endangered Balance Between Impartial Courts and Judicial Election Campaigns, 21 Geo. J. Legal Ethics 1229, 1230 n.5 (2008) (showing that judicial campaign spending has risen more sharply in recent years than other campaign spending).

[33] Id. at 19 fig. 12.

[34] In re Murchison, 349

U.S.

133, 136 (1955).

[35] Tumey v. Ohio, 273

U.S.

510 (1927).

[36] Id. at 532 (“Every procedure which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear, and true between the state and the accused denies the latter due process of law.”).

[37] Mayberry v. Pennsylvania, 400

U.S.

455, 465 (1971).

[38] Withrow v. Larkin, 421 US 35, 47 (1975).

[39] Bracy v. Gramley, 520

U.S.

899 (1997).

[40] Fed. Trade Com’n v. Cement Inst., 334

U.S.

839 (1948).

[41] Transcript of Oral Argument at 11, Caperton v. Massey, 2009 WL 527723 (No. 08-22).

[42] Withrow, 421 U.S. at 47. It is worth noting that White did not suggest these two categories must create actual bias, but rather that they might create “the probability of actual bias” that “is too high to be constitutionally tolerable.” Id.

[43] Caperton III, slip op. at 11.

[44] See Caperton III, slip op. at 11-12.

[45] Id. at 13.

[46] Id. at 1, 14.

[47] Id. at 14.

[48] Id. at 15.

[49] Caperton III, slip op. (Roberts, J., dissenting) available at http://www.law.cornell.edu/supct/pdf/08-22P.ZD.

[50] Id.

In Defense of Ted Kennedy

2009-08-26T23:26:00.018-05:00

Personally, I am saddened by the death of Senator Kennedy. I made the mistake of posting something to that effect as my Facebook status this morning.
The first of my friends to comment painted a nice, eulogistic picture of Senator Kennedy arriving in Heaven to find three brothers waiting for him. Then someone else pissed me off. She wrote, “And we’ll all just forget about the girl at the bottom of the water. Somehow only celebrities get to be beautiful in their remembrances.”

This evening, I read a rather good AP article by Calvin Woodward and Glen Johnson (available here), on the Austin Statesman website. Then I saw the reader comments. Apparently a fair number of people are hung up on the death of Mary Jo Kopechne.

Senator Kennedy carried those bricks for 47 years, as is only fair. It’s also only fair that his memory will ever be linked to Kopechne’s death, and to his arguably craven actions that night. (For the record, until I’m in a similar situation, I don’t feel qualified to judge him for swimming to safety, then running away. But I can see the argument.) But this attitude I have seen today, this notion that we should not mourn the man, angers me.

Imagine your most embarrassing memory. The worst mistake you made. Chances are high that you were young at the time. Probably even odds that you were drunk. Now imagine you live another 47 years, and that when you die, people choose to only remember you for that one event. You will forever be defined and remembered for your biggest mistake. How frustrating to you is that thought? I would bet almost everything I own against the assertion that you, whoever you are, will have accomplished all the things Ted Kennedy accomplished. But I still think stigmatizing your memory with one of your mistakes is unfair.

And Chappaquiddick wasn’t even Ted Kennedy’s only mistake. The question, “Why do you want to be President?” must have haunted him every night for twenty years. He challenged an incumbent President of his own party, lost, then had to watch Carter lose the election by 440 electoral votes. And as mistakes go, drunkenly driving a car off a bridge and leaving your companion in the car as it sinks is a doozy. It’s not like, say, molesting a child, but I guess if you’re an irrelevant, psychologically decaying pop star, people are only allowed to say nice things about you when you die. Of course, if you didn’t have a woman in the car with you at the time, then no harm, no foul, and you get to be President, right?

Senator Kennedy’s sins are many, I am sure. I am sure because mine are many, and he and I belong to the same species. But he served for 47 years, served us all, and championed marginalized citizens. The Americans with Disabilities Act, the Civil Rights Act of 1991, OSHA, Children’s Health Insurance Program, immigration reform, even the fight against apartheid in South Africa, all carry the thumbprint of Ted Kennedy. For one of the most famously liberal Senators of my lifetime, I am pleased by the number of Republicans who named him the most bipartisan. (See this and this.) So if you can look at a listing of his life’s work and see only Mary Jo Kopechne looking back at you, then I have no interest in knowing you.