Friday, December 26, 2008

A Guinea Pig Dies

There is a baseline level of corruption, abuse of power, ethnic infighting, and torture that we just tolerate in Africa. While we preoccupy ourselves with dithering over the more extreme cases — the genocides in Darfur and Rwanda, the Robert Mugabes — other, slightly better-behaved regimes continue with their dirty work largely unnoticed.

One such regime fell earlier this week, in West Africa, in the Republic of Guinea, leaving Guineans wondering what comes next.

International news outlets are reporting that Lansana Conté, Guinea's "President" of 24 years, died Monday morning after an extended illness. Not surprisingly, given the nature of Guinean politics, junior and midlevel military officers promptly pushed out the remaining civilian leadership in a coup, and the fate of a government recently described by the U.S. State Department as a "constitutional republic in which effective power is concentrated in a strong presidency" hangs in the air, pending further action by its new, self-appointed leadership.

The Herald Tribune reports that thousands of supporters have assembled in traditional funerary garb to mourn Conté's passing. The sad faces in white presumably do not belong to members of the Rassemblement du Peuple de Guinée, the principal political party opposing Conté's government. The RPG, largely comprised of Malinkes, Guinea's largest ethnic group — Conté was a member of the minority Soussou group — has been harassed and abused by government authorities over the years. Conté's people have shut down its presses and headquarters over trumped-up allegations of planned coups d'etat; RPG candidates for public office, and most notably its leading light, Alpha Conde, have been arrested and driven out of country; and the party's supporters have been intimidated and arrested, imprisoned, and tortured (see here and here) without charges.

"Strong presidency" indeed.

Most of what I know about Guinea I learned from a former client of mine ("Client") who sought (and ultimately obtained from an immigration law judge, after an absurd amount of posturing and delay from the CIS Asylum Office) political asylum in the United States. Client tells me that Conté came to power himself by coup d'etat in 1984, during a period of wrangling to succeed Guinea's first and only President to that point, Ahmed Sékou Touré. Sékou Touré, a Malinke, was a pan-African socialist; he took power after France granted Guinea independence, and he rejected France's proffer of membership in an elite "commonwealth" of African nations under its influence. The French regarded Sékou Touré's rejection as the height of ingratitude, and so they destroyed much of Guinea's infrastructure on their way out of the country. As bad as the imperalist French were, Sékou Touré, with his grand ideological designs, was arguably worse. He ruled over Guinea with an iron fist, nationalizing industries left and right (well, left and left). Members of the political opposition simply disappeared during his reign, and some 50,000 deaths have been attributed to his government. Sékou Touré's instinct may have been to reject all things European, and yet he was able to bring himself to appreciate the utility of the concentration camp.

Client, who is Malinke, did well under Sékou Touré, even if the country did not. Client went to university, and military recruiters handpicked him to join Guinea's nascent air force. Sékou Toure's socialism brought him into the Soviet orbit, and the Russians trained my client to fly MiG fighter jets in Central Asia. When Conté took power, and the Malinkes fell out of favor, Client was busted down to guard duty, then contracted out by the President to fly diamonds out of the mines in the Guinée Forestière region to their European buyers. It shouldn't be too hard to guess who profited and prospered from the mining arrangements — hint: not the Guinean people, and not Client.

When the RPG emerged as a legitimate opposition party, and Alpha Condé stepped forward as a legitimate civilian candidate for the Guinean Presidency in 1998, Client joined the party. The Conté regime regarded Client as a threat — he was, after all, a well-respected military officer who had retained his rank after Conté's coup (if not his duties). And he was Malinke. Thus began a series of unprovoked arrests by Conté's gendarmerie, culminating in a three-day stint in 2001 at Camp Alpha Yaya Diallo, a notorious torture prison named for a famous Guinean pop singer. Imagine Guantanamo's Camp X-Ray, but orders of magnitude more brutal, and renamed "Camp Elvis Presley." The gendarmes tied Client down and beat him brutally, burning him with cigars while they interrogated him. They demanded that he confess involvement in a fantastical plot to overthrow the state. Client didn't break, the authorities released him, and Client returned home to his family. After Conté's goons sent a car plunging into his parked jeep by the Conakry docks ("make it look like an accident," was no doubt one component of their orders), Client became convinced he wasn't safe. He went into hiding until friends, calling in favors from friends, managed to pull him U.S. and Schengen travel visas (or reasonable facsimiles thereof — it was never clear). Client managed to low-profile his way onto an Air France flight through Paris to Philadelphia and safety.

Client wasn't a high-level RPG operative. He wasn't fomenting revolution. He was just a party member who went to meetings. He didn't even speak at the meetings. The fact that he was targeted, tortured, and driven from his country says something about the depth and breadth of Conté's effort to suppress dissent. That the State Department described Conté's thug regime as "a strong presidency," and that the Herald Tribune should credit Conté for the "stability" of his government, say a great deal about the state of African national politics today. Conté's government is the sort of African government we don't notice — and if we do, we tolerate it, because we see so much worse elsewhere on the continent.

Today's coupsters are promising elections in 2010 (no need to hurry, apparently). Word is that the junta is comprised principally of Malinkes. The interim President, Moussa Dadis Camara, is a veteran of minor insurgencies against Conté while he was alive — over matters like military pay. Camara's propaganda machine is already in full swing:

Camara himself, however, has been at pains to deny that personal political ambition has played any part in the coup, insisting he is a "calming influence."

* * *

"We have no intention of clinging on to power. We must hold an election, free and transparent, in a dignified way to honour Guinea, to honour the army.

"The future of our country is peace, freedom, reconciliation. After that, the most important thing is to fight injustice and nepotism in order to take up the challenge of relaunching the economy of the country," he said in a statement directed at foreign leaders."

Despite this apparent modesty, Camara has not been shy in promoting his own qualities, telling a news conference: "I did not come to power by accident, it is due to a lot of qualities. I am a patriot."

Notwithstanding these noble protestations, you can expect Camara to be governing Guinea into the ground five, ten years from now. Toward that end, Camara would do well to follow Conté's example of measured, low-profile cruelty. Some rules Conté followed, to his substantial benefit:

(1) Try to be just slightly less murderous and brutal than your predecessor, and a lot less brutal than your most extreme contemporaries in Africa. You'll come off as heroic by comparison.

(2) Fear the military, but respect it, too. Conduct the usual purges, but know when to quit: it's enough to strip your potential rivals of their powers and responsibilities — let them keep their rank.

(3) When you arrest and torture members of the political opposition, be sure to set a "context" for these actions by circulating rumors of a military plot to overthrow the government. A coup is always plausible in Guinea, and it furnishes a legal basis for the abuse.

So long as you follow these rules, Captain Camara, your prospects for an enduring, brutal, unchallenged "strong presidency" are limitless. Now get to work fixing that 2010 election.

Tuesday, December 23, 2008

DEA Busts "Merchant of Death"

Another article in this week's Economist tells the life and times of post-Soviet arms dealer Viktor Bout, dubbed by some the "Merchant of Death."

Turns out an elite undercover unit of the DEA ultimately caught him. The Economist doesn't explain why the DEA was involved — but it turns out that the 9/11 attacks prompted the feds to beef up DEA and redefine its mission to include enforcement of international terror laws, to the extent that a case might have any nexus with illegal drug trafficking. Turns out Bout was running small amounts of drugs on the side.

Monday, December 22, 2008

Hot Stuff at The Economist

If you aren't already sold on The Economist as the modern periodical industry's Supreme Repository of Insight and Learning, consider its year-end double issue, and specifically, this article about chili peppers.

I love this publication. More than The New Yorker, Q, and The Uncanny X-Men combined.

Thursday, December 18, 2008

Good Luck, Lordstowners

The Washington Post just published this writeup of GM's plant in Lordstown, Ohio, just up the road from where I grew up.

I don't have much to add, except to say that the Mahoning Valley has been taking a beating as long as I've been alive. It doesn't surprise me, then, to read that the union local is working as cooperatively with management as it is (though it was not always this way): after about thirty years of this, the economic realities set in.

Surely you can accuse me of homerism, but I hope the Lordstown plant is saved. They're working with a reasonable union, building cars like the Chevy Cobalt and Cruze. This doesn't sound quite so much like the American auto industry we've been [appropriately] trashing over these past three weeks. If the problems are in Detroit, let the plants in Detroit go down. Where GM has a working partnership with labor to build fuel-efficient cars, it's doing something right. I'd hate to see the good bits triaged out because there's a greater concentration of labor and political clout in That State Up North.

Disclaimer: the Author of this post doesn't give a damn for the whole state of Michigan, as he's from O-hi-o. Make of this what you will.

Wednesday, December 17, 2008

Don't Prosecute the Lawyers

Milan Markovic writes in Slate that a case can be made to prosecute the Bush Administration lawyers who served up the facile and intellectually bankrupt legal opinion approving the use of torture in terror interrogations. And what a lousy case it is, too. In fact, I'm not sure it would even pass the "John Yoo standard."

Markovic cites a 1919 Second Circuit case in support of the notion that an attorney can be prosecuted for advising his client to commit a crime. He also argues that soldiers have to deal with difficult legal gray areas all the time, but they enjoy a war crimes immunity for following orders — so maybe the best bet is to go after the lawyers who rationalized the orders (because apparently it's not enough to take on the superiors who issued them). And finally, he argues that the concerns attorneys have expressed about prosecuting for advice are simply the expected, instinctive responses of professionals protecting their own.

This last bit is a bummer, because I'm an attorney, and Markovic's preemptive strike has disqualified me from explaining why his article is idiotic. But what the hey, right? It's my blog, and I can blather if I want to. And I think maybe I can purchase back some of my credibility by stating that, as a personal matter, the Yoo memo was a lousy piece of work, and that the policy it promoted was godawful and indefensible. But don't prosecute the lawyers. Just don't do it. Here's why:

First, the law isn't always clear, and clients seek out attorneys to give them answers that allow them to go forth and do their work, despite the fact that very often the amount of legal uncertainty can be paralyzing. I can't tell you how often, in my three years working in-house, I've been consulted on a question of considerable legal ambiguity and asked to opine on whether my clients would be running afoul of the law, to the tune of considerable civil and even criminal liability. Lawyers have to be in a position to make judgment calls.

Second, a written legal opinion is First Amendment-protected speech. Sure, there are exceptions (most notably, when the crime is accomplished by speech, as in a fraud case), but we generally don't punish speech in this country. We don't punish a blogger who sits down at his desk and writes that we should torture people. Should we likewise punish an attorney who sits in abstraction and writes his opinions on whether a policy condoning torture is legally defensible? Incitement to violence or riot isn't constitutionally protected, but this isn't a case of the lawyer standing by with the electrodes, chanting DO IT DO IT DO IT into the ear of the covert intelligence operative. "Aiding and abetting" is Markovic's theory. He only has to go as far back as 1919 to find a case that supports it. That's usually a bad sign, especially when the First Amendment is in play. There wasn't a heck of a lot of protection given to freedom of speech back then. That came later.

Third, prosecuting attorneys for their advice implicates attorney-client privilege. Love it or hate it, Mr. Markovic, the ability of clients to consult their attorneys in confidence is a bedrock principle of Anglo-American law. The privilege itself is not in issue in this instance, because the Yoo memorandum was leaked to the public. But the notion that attorneys may have to answer to criminal prosecutors for giving bad advice begs the question: would law enforcement authorities have the power to compel them to surrender their privileged communications, toward the end of investigating the attorney? Even if not, and proponents of criminal counsel liability were therefore in a position to argue that in most cases an assertion of privilege would cut off the investigation, there's still the fact that it's not the privilege so much that is sacrosanct — it's the relationship between attorney and client, and the principle, which is fundamental to our law, that attorneys must not be impaired in their ability to give legal advice.

Fourth, Markovic makes the point that "lawyers can offer legal advice in such a way as to account for differing points of view when addressing controversial legal issues," and writing in this way would preclude liability. Yes, this is something that lawyers can — and should — do, if they want to be good at their jobs. But it's one thing to remark on the difference between good and bad lawyering — quite another to posit that this distinction ought to serve as the dividing line between legal and criminal conduct. Would it have been enough for Yoo to have written a disclaimer, a la "Authorities might come down on different sides of the question, but on balance I believe it's not illegal to torture detainees?" Should a recitation of those prefatory twelve words really make the difference between hard time in Leavenworth and a cushy post-government work gig with a Washington consultancy? Talk about your First Amendment concerns: Counsel, you're going to have do more "on one hand . . . on the other" in this memo, or you're going to be INDICTED.

Fifth, it seems at least reasonable to take account of the context in which this memorandum was written, and the power relationships that surely drove its content. The respect and independence accorded to attorneys varies from one institution to the next. I would suspect that the respect and independence Bush Administration attorneys had was negligible, and that Yoo's assignment wasn't so much to give an honest, forthright appraisal of the policy but instead to write up the best possible legal justification for it. I can't say what Yoo would have written if left to his own devices, but I don't doubt he was under considerable pressure to sign off on the policy. It's my impression that Bush's people didn't think much of lawyers. It's a bad state of things when lawyers don't feel free to speak the truth about bad policy. You don't fix that by prosecuting the lawyer; you fix it by creating conditions where lawyers feel independent and empowered to do their job and do it well.

Look, Yoo's memo was one-sided and ridiculous. It was insulting. An astonishingly poor effort. (I'm running out of pejorative adjectives, and I'm tempted to use facile again simply because I like it so much.) But let's just call it what it was — lousy legal advice — and leave the criminal charges for the folks who did the waterboarding. If Rummy does time, in part because he relied on John Yoo's memo, there's always a legal malpractice action to help set things right.

Let's not tear down core values of our legal system in our zeal to see the Bush Administration and its brutal, excessive policies brought to heel. Today it's John Yoo. Tomorrow it will be the public defender or divorce lawyer down the road. As we say in the business, "bad facts make bad law." Going out of our way to punish the attorneys here, no matter how attractive a prospect that seems to folks who have The Bloodlust (and now The Upper Hand), would set an awful precedent.


I went on, and it turns out furbish actually is a word, even though you rarely see it without the re- prefix.

So here's your Word of the Week.

Used in a sentence: "Someday soon — but probably not before the New Year — we're going to abandon our style-free living and furbish this frickin' blog."

Tuesday, December 16, 2008

Caroline, No

Caroline Kennedy wants the vacated New York Senate seat. Why should she get it? What makes her a better candidate than, say, Fran Drescher?

I'm sure I'm only the 500,000th blogger to take this position. After all, if you're out there blogging, you're the type who still believes that The Little Guy ought to have some say in the world. You're the type to toil away in obscurity, to compose thoughtful messages — each of them carrying just a little bit of yourself — and send them off into The Internet Void, where they'll never be seen again by anyone except yourself and maybe a friend (two, if you're lucky). But you commit yourself to this, without reward or recognition, because you think what you think matters, even if you're at best a Low-Level Internet Personality. Whereas other people are handed the opportunity to publish mass-circulation political magazines — you know, because their dad was John Fitzgerald Kennedy.

So you'll have to pardon me if I momentarily slip into a bit of populism here. Caroline, no. NO NO NO NO NO. You don't get to hold a Senate seat once occupied by the likes of Aaron Burr, Robert Kennedy, Daniel Patrick Moynihan, and Hillary Clinton, just because you're derivatively famous and you feel restless and need something to do.

Here's Wikipedia's blurb on Caroline Kennedy's "Professional Life."

Kennedy is an attorney, editor, writer and member of the New York and Washington, D.C. bar associations. She is one of the founders of the Profiles in Courage Award, given annually since 1990 to a person who exemplifies the type of courage examined in her father's Pulitzer Prize-winning book of the same name. The award is generally given to elected officials who, acting in accord with their conscience, risk their careers by pursuing a larger vision of the national, state or local interest in opposition to popular opinion or powerful pressures from their constituents. In May 2002, she presented an unprecedented Profiles in Courage Award to representatives of the NYPD, the New York City Fire Department, and the military as representatives of all of the people who acted to save the lives of others during the terrorist attacks on September 11, 2001.

For 22 months from 2002 through 2004, Kennedy worked as director of strategic partnerships for the the New York City Department of Education. The three-day-a week job paid her a salary of $1 and had the goal of raising private money [for] the New York City public schools. In her capacity, she helped raise more than $65 million for the city’s public schools, according to her biography at the Kennedy Library. She currently serves as the Vice Chair of The Fund for Public Schools, a public-private partnership founded in 2002 to attract private funding for public schools in New York City.

In addition, Kennedy is currently President of the Kennedy Library Foundation, a director of both the Commission on Presidential Debates and the NAACP Legal Defense and Educational Fund, and Honorary Chairman of the American Ballet Theatre. She is also an adviser to the Harvard Institute of Politics, a living memorial to her father.

Kennedy has represented her family at the funeral services of former Presidents Ronald Reagan in 2004 and Gerald Ford in 2007, and at the funeral service of former First Lady Lady Bird Johnson in 2007. She also represented her family at the dedication of the William J. Clinton Presidential Center and Park in Little Rock, Arkansas in November 2004.

I'll concede that Ms. Kennedy is not your typical dissolute heiress. There is evidence of community engagement here. But let's look at the nature of her work. She administers an award based on a book her father wrote. This is not something that, say, Mithridates could do, because his father didn't write a Pulitzer Prize-winning book about "courage" (no offense to Mo).

But Phutatorius, you write, she has worked as a volunteer for the New York City Department of Education! This sounds admirable, but consider what her role was. Her job was to cultivate "strategic partnerships" and raise "private money" for the DOE. That is, she called the wealthy and powerful people she knew and invited them to posh fundraisers. What she offered the DOE were her connections to elite donors — not policy expertise, not any tireless commitment to grassroots educational reform.

The third block-quoted paragraph describes Ms. Kennedy's service on the boards of various non-profit organization. Geez, you'll have to pardon me if I'm a bit too cynically dismissive of these resume bullets. I realize I don't know the precise circumstances of these appointments, but I'm going to go with "let's get ourselves a Kennedy on the board" over "have you heard of this extraordinary woman — Caroline something? I bet she'd just do some terrific work for us."

Finally, there is this paragraph that describes Ms. Kennedy's several appearances "representing her family" at funerals and library dedications. I don't think anyone — not even Elton John — would regard "funeral attendance" as a professional obligation. It may simply be a quirk of Wikipedia that this business is described as an element of Ms. Kennedy's "professional life," but I think it's telling, for two reasons. First, the writers are obviously straining to fill this segment of the entry. Second, it's actually not that far off to say that Ms. Kennedy's "profession" has been to serve as her father's daughter.

She's a professional daughter. She's good at it — plenty better than, say, Paris Hilton is for her family. And maybe the world needs to have a "daughter of John F. Kennedy" going around doing her "daughter thing," serving on boards, cutting ribbons with gigantic scissors, tasting various caterers' hors d'oeuvres in anticipation of a Casino Night party to raise money for cerebral palsy research. That doesn't mean Caroline Kennedy is entitled to follow her father's footsteps into the United States Senate. That's a place (ostensibly) for serious, accomplished people.

David Paterson needs to take Ms. Kennedy by the hand and say, "Caroline, no."

UPDATE: I got wrapped up in Ms. Kennedy's qualifications earlier, and I neglected to cover another important point, which is that in any other year, Caroline Kennedy would have to prove her mettle in an election. She'd have to endure an extended campaign, work hard, and win the hearts of voters. While it's true that many of these voters — suckers that they are — would favor her based on the name recognition, a successful campaign for higher office requires at least a modicum of effort from the candidate (hello, Fred Thompson). She would have had to show us something in the weeks leading up to the vote.

This is, no doubt, what makes a New York Senate seat suddenly so appealing to Caroline Kennedy now. This sort of "campaign" is right in her wheelhouse. The notion that someone like Ms. Kennedy gets to dial the direct line of the Governor of New York, drop the K-bomb, and jump to the Head of the Senatorial Class should be offensive to every one of us who still believes in meritocracy. If you're a Democrat, and you cried like I did on Election Night, you should want no part of this.

UPDATE: I want the record reflect that I was the first person to post any kind of writing online on this subject, with the title "Caroline, No." (I did a Google search.) Now it's popping up all over the place. I write this because that was probably the best thing about this post, and I want some credit for it.

Monday, December 15, 2008

Yes, But Do We WANT Personalized Web Search?

Google Inc.'s VP of Search Marissa Meyer is touting "personalized search" as the wave of the future. Sounds good, but what's it all mean? Google's celebrated web search algorithm orders search results based on the cumulative wisdom — well, preference, anyway — of the masses who have already entered the search string, reviewed the results and clicked through to what looks good. Imagine the Internet as a vast woods, with the world's Net users wandering around, breaking the ground cover with their feet. Google's current search model channels people down the well-worn trails: this is most likely the site you're after, because other folks with the same interest went here.

Of course, what I want and what some cobbled-together notion of the Typical Websurfer wants aren't always going to be the same. So Google proposes a further step: tailor Web Search to custom-order search results based on what I, and not the Google Golem, want to see.

As one incremental step toward that Shangri-La of Search, Google has launched "SearchWiki," a product that allows a user to adjust the order of search results per his or her own specifications. Those preferences will be recorded in the user's personal account with Google, for regurgitation at a later date, if the user should re-enter the same search string. Users can also tag their own Wiki-style comments to search results.

Personalized search sounds pretty terrific. It sounds like Google getting even better at what they do than they already are. So hooray. But here's my beef. I think there's something to the notion that we'll be worse off — both individually and as a community — if the 'Net gets so smart that it gives each of us exactly what he/she wants, nothing more or less, all of the time. Distractions and diversions are abundant in this world, and they surely dissipate our energies and make our days less efficient. Take, for example, the television that sits just over my right shoulder as I type right now. It's showing news footage of an Iraqi journalist throwing his shoes at the President of the United States, and it's completely shattered my concentration. This is a bad thing.

On the other hand, there's news footage on the television, right now, of an Iraqi journalist throwing his shoes at George W. Bush. Are you kidding me? As distracted as I find myself right now, this television is enriching my life. And I believe there's something to be said for not having complete sovereign control over the information one receives. We hear quite a lot these days about the political polarization of our news sources, and how we all choose to live among and spend time with like-minded people who don't challenge our worldviews. It's socially and intellectually calcifying. Now imagine an Internet that anticipates your needs and meets them completely. I mean, ick, right?

I like the idea that I might be allowed to stumble across something I didn't ask to see, that I might be surprised, that I might see/learn/find something I've never experienced before — and that it might cause me to see the world a bit differently, to grow as a person, to find a capacity for empathy that I didn't know I had. In fact, I think it's important. It's the diversions, the digressions — dare I say it? — the hijackings that enrich our lives. They lure us out of our carved-out personal spaces into the broader community. Take, for example, Gmail, which serves up ads based on keywords I type into emails. This was supposedly creepy — Google's machines reading my emails. But human eyes aren't processing the content of my message: this much is clear from the fact that sponsored links to Human Events and WorldNetDaily often appear after I've sent off a blistering screed to M'dates and V'torix about politics. Anyone who read the message would know Human Events and WorldNetDaily aren't at all up my alley. Clearly the Gmail ad server isn't "smart" enough. But if it were, I wouldn't have the benefit of knowing that these publications exist, that they say such ludicrous and laughable things, and that there are people out there who swear by them. Knowing all this is good for me. It's important.

Do I think SearchWiki is going to destroy communities? Hardly. Google proposes to publish the Wiki commentaries — users can rate, describe, and review sites to one another. This functionality arguably enhances community. And technology that has the simple effect of saving prior search strings seems harmless enough. What I don't like is the down-the-road ideal of search personalization. I don't want a search engine to anticipate my needs perfectly. I want a rough idea of what I am after, delivered alongside other, miles-afield links that carry the potential for great distraction and enlightenment. So much of the joy in life comes in the searching, after all. Just don't make it too easy, Google.

Wednesday, December 10, 2008

Some Thoughts on Echo & the Bunnymen

And now, from the How To Destroy the Blog Before It Ever Bloomed Department, I'm going to share some of my thoughts on Echo & the Bunnymen.

NOOOOOOOOOOOOOOOOO! you cry. Don't do it, Phutatorius! Vercingetorix is AWOL, Mithridates is absent WITH leave — on a two-week trip to India (we expect regular travel journal entries) — you're minding the store alone. There's absolutely no reason, at this point, for you to pester us with your overwrought musings on defunct 1980s wrong-side-of-mainstream British post-punk acts, the Stateside exposure of whom has been limited to soundtracks. For the love of God, Phutatorius, Blogger's post-label software won't even tolerate the band's ampersand!

Message received, Good Reader, and disregarded. It's E&tB Night here at Feigned Outrage. Bring the love, or take a hike. Here goes, then:

I'm going to challenge the orthodoxy here. I'm going to take the heretical position — at least in the mind of those of us who romanticize defunct 1980s British post-punk acts — that Echo & the Bunnymen probably weren't all that great a band. And, what's worse (and likely to get me flayed and fileted), Ian McCulloch was probably holding them back.

Dare I write these words? Dare I suggest that these Alt-Rock Elder Statesmen are more myth than substance? And how presumptuous is it for me, a mere sub-recognizable Internet Personality, to undermine E&tB's exotic, iconic frontman? Well, let's consider the evidence: let's play the records.

I'll be the first to admit that certain tracks are just gorgeous. "Crystal Days," "The Killing Moon," "Lips Like Sugar," "Bring on the Dancing Horses" — they're the complete package. Songwriting, instrumentation, lyrics, production: it's all there. When the Bunnymen were on, they were sublime. But they were never interesting. McCulloch's writings were modestly poetic. Sergeant's guitars were modestly psychedelic. These two were the core of the band. For crying out loud, the drummer, Pete de Freitas, replaced a drum machine (called Echo, by the way). He wasn't exactly breaking new ground.

(I don't mean to demean the memory of de Freitas, who died tragically in a motorcycle accident in 1989. This same de Freitas helped kick-start the Wild Swans' recording career, and for that he'll always have a soft spot in my heart.)

Contrast E&tB's contemporaries and greatest rivals in art rock, the Smiths. The Smiths were a no-frills four-piece, too. They wrote and recorded beautiful songs. They also had a signature sound and aesthetic, but these were distinctive and compelling. The Smiths had an artistic mission, and they took significant risks. Love him or hate him, Morrissey threw himself open for the world to see — and even if that wasn't his true self, he surely dreamed up and delivered a fascinating stage character. As terrific as some of the Bunnymen's work is, there's no edge there, no identity, no risk. Is it any coincidence that this band is best remembered in black and white, if not silhouette?

I have just two more bits of evidence to submit, before I hang McCulloch for these crimes. First, the band's cover of the Doors' "People Are Strange" for The Lost Boys soundtrack. Growing up in the time and place that I did, I heard the Bunnymen's version before I heard the original. I don't fault the Bunnymen for allowing the Doors to blow them away (although I regard the Doors as overrated, too). I fault them for doing nothing remotely interesting or interpretative with the song. It's a straight recording, without the organ. Second, I saw a reformed, reconstituted version of Echo & the Bunnymen play in Boston several years ago. They were touring with the Psychedelic Furs. The contrast between the two shows was striking. Echo was all smoke machines, dry ice, and back lighting. McCulloch appeared in silhouette the entire time (I wondered if he had been disfigured, or he didn't want fans to see his age lines). He barely moved as he sang. They were clearly trying to sell "lush soundscapes" and "mystique." I wasn't buying. The Psych Furs were triumphant. They seemed absolutely thrilled to be playing to a crowd of sleepy thirtysomething fans in the wee weeknight hours. The enthusiasm gap was dramatic, and it favored the Furs. The Bunnymen won on pretentiousness by a mile.

So that's my take on the band generally. On to McCulloch.

Now here's where I go completely off the reservation. I'm going to have to insist that Echo & the Bunnymen's best album is 1990's Reverberation — you know, the one the band recorded without Ian McCulloch. The one they recorded with a guy named Noel Burke (remember him?), the one that appears in AllMusic without a cover and is granted a non sequitur-ish 2.5 stars by the reviewer, notwithstanding his generally glowing writeup on the album?

As best I can figure it, the AllMusic writer docked the album points not on its merits, but because it differed from the rest of the Bunnymen's back catalog:

Reverberation would have been a great debut had Sergeant and bassist Les Pattinson decided to operate under a different moniker. Who knows if Sergeant thought McCulloch would someday return to the band, but it would have made more sense for these ten songs to have been released under a new band name, because whether one likes or dislikes this album, Echo & the Bunnymen doesn't exist without the distinctive voice of Ian McCulloch, and it seems rather unfair that Burke had to go up against the enigmatic legacy of McCulloch.

Hell, yeah, it was different. It was better. The band actually did something interesting with its sound. Rather than continue plodding along with his usual nondescript, half-psychedelic guitar, Sergeant — the band's creative leader at this point, surely — decided to go the whole hog. Maybe he was responding to the trippy trends of the day; maybe McCulloch's absence opened up greater possibilities. The first line of the first song, as it happens, is "My head is like an unblocked drain." Reverberation is not necessarily dignified: the flipside of "distinctive" is "gimmicky," after all. But what should rock 'n' roll be, if not gimmicky? Reverberation might have been the sort of product that was beneath McCulloch's dignity to release (at the same time he was serving up his own solo album, the two principle characteristics of which were adequacy and dignity), but it's the closest this band ever came to rocking.

Burke had his lyrical excesses. For example, I have no clue what it means "To counterfeit my salad days/And split the difference." But he more than makes up for this with "Let me take you/to the hell where all the freaks dwell." I would put the likes of "Enlighten Me," "Cut and Dried," and "Senseless" right up in the canon with the McCulloch-issue tracks I singled out earlier. No doubt about it. "Senseless" in particular, with its repeated, defiant refrain — "I will not wait/I will not see/The things you claim/Are lost on me" — shows more of Burke's soul than you're likely to find in all of McCulloch's work. McCulloch's poetics just seem so distant. By the end of the track, Burke is ranting: "All our voices out of tune/All our graveyards full too soon/All your money in the bank/How it festered, how it stank . . . Stupid, senseless, make it stop!" Maybe all that's too much and too silly. I think it's terrific.

Full disclosure: I may have some ingrained biases here, based on memory associations. Probably the single most traumatic moment of my adolescence came when I crashed my car in the parking lot of the Eastwood Mall, ten days after I got my driver's license. One of McCulloch's songs, "The Cutter," was playing in my tape deck at the point of impact. Whereas I distinctly remember playing tracks off Reverberation in my dorm room on the night I met my future wife — in fact, I may have forced her to listen to "Freaks Dwell" when we stopped by my room after leaving the dance.

Still, I think that if McCulloch weren't so closely identified with the band (and the centerpiece of its marketing), if his lack-of-aesthetic didn't carry quite so much momentum — and, most importantly, if Burke had stuck around — there was the potential here for an AC/DC-style reawakening, with McCulloch and Burke playing the roles of Bon Scott and Brian Johnson, respectively. McCulloch would have been fondly remembered, but Burke would have led the band to new heights. As it happened, and given the circumstances, the project was doomed to failure. It's just too bad that was the case. This band was better with Burke than it was with McCulloch.

UPDATE: I found the Reverberation album art on Amazon. Here it is in old-school CD "longbox" format.

Tuesday, December 09, 2008

My Contribution to the Big Three Bailout Bill

If I were in Congress, I would insert an amendment that called for Chrysler to rename one of its truck models the "Dodge Accountability."

That would be frickin' awesome.

Friday, December 05, 2008

Three Lousy Intersections

It's Friday afternoon, and time now to discuss traffic patterns. A great deal of ink (and blood, too, I expect) has been spilled on this Internet and elsewhere over the quality of driving in the Boston area. I don't mean to deny or gainsay any of it with this post. Boston drivers are freakish psychopaths. As friendly as they may be in other contexts (he writes, rolling his eyes), when they get into their cars, they become awful, terrible people. It's a fact. But the state and local traffic authorities don't exactly make life easy for them.

Take these examples:


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The two intersections depicted above are both classic "T"-style intersections. One road runs perpendicular to another and ends. In the case of intersection (1) (Centre Street, Newton), the northbound driver on Centre Street must turn right into eastbound traffic. Intersection (2) (Park Road and South Avenue, Waltham) presents the northbound driver with two options: he/she may turn left or right onto Route 30 — into eastbound or westbound traffic as he/she chooses.

What's worth noting about these intersections is that in both cases, the driver who turns right is likely to get killed. Here's why: at both intersections, a green-arrow traffic signal exhorts the driver to turn right, even though the same signal does not stop the eastbound traffic. In most modern states, a green arrow entitles a driver to turn his/her vehicle in the arrow's direction — and what is more, the driver is entitled to rely on the signal to stop the traffic on the turned-upon road. Indeed, many (I dare not say all) of the green-arrow signals deployed elsewhere in the Commonwealth of Massachusetts operate in this fashion. Not so at these intersections. And so, if you don't know this, you'll probably be killed. Bummer for you.

Hey Commonwealth — hey Newton and Waltham — how about we sub out these mischief-making green arrows for stop signs or red blinking lights?


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Intersection (3) (Concord Avenue and Common Street, Belmont) doesn't affirmatively mislead drivers into crippling accidents; here the government provides no guidance at all, right or wrong. There is no traffic signal, no stop sign, no policeman on duty — nothing — to establish a right of way here. What is more, the three roads that converge here meet at something close to identical 120-degree angles, so one cannot draw any inferences as to whether one of these "turns" might be regarded as no turn at all, such that a driver might conclude that by going "straight" he/she has the right of way. The closest thing to a pronouncement on this subject comes from Google Maps, which shows that drivers who approach the intersection from the east and north are on Concord Avenue, and they'll stay on Concord if they turn north and east, respectively. In theory, then, maybe drivers who would turn onto or off of Common Street would have to yield.

Anyone who has ever driven to this intersection knows that this is not how matters play out. There are no street signs that would give notice of the regime I seek to superimpose on this chaos. Drivers on all three roads stop short, pull up, eye one another warily, creep up, honk, glare, proceed, flip one another off. Somehow, some way, we get through it, but not without suffering great agitation and outrage.

Probably the most severe irony is the fact that drivers who make it through the intersection and proceed westbound on Common are immediately treated to a giant, portable LCD screen planted squarely at the Common/Royal fork by town authorities to exhort people, on pain of traffic ticket, to fasten their seatbelts. The Town of Belmont apparently regards the area as appropriate for banal public-safety messaging, but not for traffic guidance. Pfft.

It might be that the railway bridge over intersection (3) precludes the use of traffic signals there. Still, a stop sign stuck in the ground on Common, along with in-ground, side-of-road yellow flashing lights to confront drivers approaching west- and north-bound on Concord could settle the issue once and for all. How frickin' hard would that be to implement?

Thursday, December 04, 2008

To Rule the Waves

I finally finished Arthur Herman's To Rule the Waves: How the British Navy Shaped the Modern World — the first bit of nonfiction I've taken on in a while. It was somewhat of a slog at times, but never without a payoff.

Herman's book recounts the history of the Royal Navy from its early days as a ragtag assembly of privateers raiding Spanish treasure fleets — at that point, hardly a "navy" at all — to its final active combat mission off the Falkland Islands in 1982, well after it had ceded control of the seas to a younger, more dynamic American fleet. At the same time Herman tracks the rise and decline of Great Britain as a world power and describes the enduring impressions the British people made the world over, principally through their exercise of sea power.

To Rule the Waves nicely balances its argument and factual presentation with history-by-anecdote, and so it manages to inform and entertain in equal parts. Herman kicks off his work with a relation of John Hawkins's daring and desperate raid on San Juan de Ulloa, a Spanish installation in the Caribbean, in 1568. Robert Louis Stevenson could have written passages in this chapter, and they'd be no more compelling. Interwoven with battle narratives like these are more complex disquisitions on the Longitude Problem and the several overhauls and reorganizations of the Admiralty. A succession of larger-than-life personalities make up half the story here: Hawkins gives way to Drake, and from there Pepys, Anson, Hawke, Cook, Nelson, Cochrane, Fisher, Jellicoe, and Churchill, serving in a dual capacity as both historical figures and characters, all propel the plot forward in furious bursts. The other half of the story, in which the Navy's power grows incrementally with technological, organizational, and regulatory improvements, provides a kind of consistent backbeat that steadies Herman's prose.

At times Herman's enthusiasm for his subject matter seems to slip a bit, into unalloyed admiration of the actual Navy and, by Herman's metonymic argumentation, of Britain itself. The effect of this is incremental: by the end of the book any reasonable reader must, at least momentarily, regret that the sun should ever have set on this Empire. We're told that the press gangs weren't so brutal, and that Churchill probably overstated the extent of the "buggery" and the use of the "lash." We're told of the commercially favorable world order that the Royal Navy oversaw, not just on behalf of Britain — but for all nations. The word "empire," with all its negative connotations, does not surface very often. Herman prefers to talk of a Pax Britannia. Blame for the Navy's several notable defeats and reversals — it's all right, Arthur, nobody can win all the time — is with a kind of suspicious frequency lifted from the shoulders of the admirals and captains and laid at the feet of government mismanagement or Britain's lagging allies. Conversely, a recurring theme of the book is that the Navy (and Britain, and the world) thrived on its own mystique, such that the very appearance of a British ship in a port would be sufficient to quell a local crisis, and the Continent's wretched imperialists, French and Spanish alike, could not but turn their fleets away from near-certain victories out of deference to the Navy's indomitable presence. And I'd have gotten away with it, too — if it weren't for those meddling English ships! The gushing suggests at times that Herman has abandoned objectivity altogether.

But these biases do not detract from the book's learning, and if anything they are useful, because they remind the reader that there is a motivated author here: I found myself skeptical at times, but never cynical, and that's probably the best state of mind in which to read a work of history. For that matter, it's refreshing to read a work on this subject that does not get bogged down completely in lamenting the evils of empire. That's well-traveled territory — and deservedly so — but surely the upside of British power (such as it was) is a subject worth exploring, too. Maybe Herman's tendency to extend the benefit of the doubt is catching.

There are other possible explanations for the choices Herman makes. I gather that historians make much of their hay in "mythbusting," and it might be that motivation — challenging conventional understandings about the Navy, Churchill's bon mot being just one very reductive example — that drives some of Herman's more apologetic passages. As for his tendency to forgo criticism of Britain's imperial excesses, this might just be a result of the fine parsing of his subject matter: it became apparent to me as I read that the principal occasions for postcolonial complaint occurred on shore. The subjugation, the exploitation were, for the most part, out of the Navy's jurisdiction. The admirals may have been enablers, and there is complicity there, but by holding his focus on the Navy, Herman is able to emphasize what Britain gave the world over three centuries — most notably, the fruits of global exploration and navigation technology, security and support for international trade that drove economic growth, and a commitment to the human values and freedoms and rule of law that we continue to promote today. In the end, then, it should not be so troubling that the Navy occasionally resorted to press gangs to crew-up its ships, when at the same time it was undertaking systematic efforts to wipe out the African slave trade.

And maybe that's where I'll leave this. A dense but rewarding read, and I strongly recommend it.

Wednesday, December 03, 2008


In 1812, Massachusetts Governor Elbridge Gerry took a step toward immortality by signing into law a redistricting bill that favored his Democratic-Republican party. Yeah, go figure that the [pick one]s did it first! The Boston Gazette coined the term and published the cartoon and long after the man lost his hard G we're still scratching our heads about how to get rid of Gerrymandering and reinstate impartial and sensible congressional districts.

The problem is two-fold:
  1. Find a sensible, simple, objective, non-partisan way to draw congressional districts with each new census
  2. Convince the powers that be to relinquish control of redistricting and put it in the hands of someone who will implement the above
Let's deal with problem 1 first. There are numerous pseudo-objective proposals out there that seem nice at first, but in reality favor one party over another.

For example, building the districts around population centers seems like a good, simple way to do things. But who tends to live in the middle of population centers? Well, Democrats. So the first district centered around Philadelphia might very well contain 80% Democrats — the Republicans might gladly concede this district to get several 60% Republican districts in return.

So it has to be simpler than that — moreover, we might want to lose the notion that keeping things like cities in one district is necessarily a good thing. In fact, objectivity should be the main goal so that no one party gets a systematic advantage over another and any imbalances would be small and only come by chance and therefore most likely even out over the course of 435 districts. After objectivity, the only thing we're going to care about at this point is convenience. As much as possible, we'll try to make the districts connected sets.

But enough background and theory for now, here's the proposed Mithrimander:
  1. Determine n, the number of congressional districts given to a state after the new census
  2. If n is even, draw a horizontal line with exactly half the population on either side and apportion n/2 seats to each half; if n is odd, draw a horizontal line with (n-1)/2n (of the total seats and population) above and (n+1)/2n below
  3. Repeat step 2, treating each half as a "state", switching horizontal/vertical at each step, until each block has only 1 seat
In the above, we could flip a coin for horizontal/vertical at the beginning in case anyone thinks a north/south split instead of an east/west split favors one party over the other.

The only problem we have — given the regular shape of most of our states — is with a few islands and peninsulas. Basically Hawaii, New York, Massachusetts, and maybe Florida. Some simple adjustment to treat islands as blocks, for example, ought to do the trick, but we can work out the minor details later.

The Mithrimander is perfectly objective, simple to implement, and creates mostly connected districts. It doesn't go out of its way to attain questionable goals (e.g., creating "competitive" districts or keeping cities/counties together). The only worthwhile goal is to ensure that the people are fairly represented in Congress.

Problem #1 solved!

That leaves us with problem #2. How to get the powers that be to adopt this simple, objective proposal. We'll have to leave that one for tomorrow.

I like it, for all the reasons you've supplied in your antepenultimate paragraph (except for the last sentence, which I'll get to in a minute).

The barriers to getting it done are, of course, considerable. The most obvious is the two parties' shared interest in preserving the districts as they are, given that they've been drawn to carve out such comfortable incumbencies that even vapid personalities like Michele Bachmann can win reelection. And of course the task of district-drawing is assigned to the several states, so you'll have to undertake 50 separate efforts at heroic persuasion rather than just getting it done once.

Here's what I think is more interesting, and maybe it's something you can address in your plan (or your defense of it). Given how info-laden and sophisticated these parties are, they'll both have a strong read on the sort of outcomes this sort of partitioning would generate. As a result, even though to you and me this seems reasonable, neutral, and fair, in any given state we can expect that one party might wholly support Mithrimandering, whereas the other will regard it as a Trojan Horse — based entirely on their reading of the demogeography.

Indeed, I can imagine a situation in which one party would make considerable gains on the other if the first state-slice were made longitudinally. You've arbitrarily (I assume) decided to go with a first latitudinal cut. There's room for argument on this point, and argument there will be, if the facts call for it.

You can politicize anything: consider what I've written in the past about "strict constructionism." One side loves it, because (1) it leads to the outcomes they like and (2) they're able to rationalize away these outcomes as the result of a "neutral" interpretative tool. The other side hates it, because it's a Trojan Horse. To be fair, the Mithrimander proposal is a lot more transparent and a lot less susceptible to perversion than the application of strict constructionism. But the point about politicization still stands. Note that this isn't an critique of what you've proposed per se — it's more of a critique of everything else in the world. So take it as such.

I do have a critique of what you've proposed, and it has to do with arbitrariness. Why all the concern for right angles and north-south and east-west axes? Just because they're simpler and prettier? That would be a fine reason, in your view, because it's so abstracted from what we generally agree ought to be impermissible bases for making district-drawing decisions. But I don't agree that "the only worthwhile goal" is to ensure fair representation. We want our congressmen and -women to go to Washington to represent our local interests. Surely the case can be made that if one of your lines splits a city in half, such that there are two districts, each with half the city and a big chunk of surrounding suburban and rural areas, local interests aren't as well-represented as they might be if one district drew entirely from the city center, and the other from the 'burbs-and-sticks.

Why wouldn't a system that drew concentric circles outward from the city centers be at least as attractive? It would be more complicated to resolve, but potentially more responsive to local interest.

Or am I taking us right down the slippery slope to gerrymandering?

The latitudinal cut is arbitrary. That's why I suggest flipping a coin. You could even flip a coin at each step. One set of coin flip outcomes might favor the Dems, but by putting in the randomness, it's very hard to rig and very hard to complain (well, easy to complain, but harder to convince anyone reasonable that your complaint is legitimate). The expected absolute benefit to either party would be smaller if the outcome were the result of several independent coin flips. Just have Ernst and Young preside over the coin flips or something like that.

The problem is — as you mentioned — going from a system gerrymandered to favor one party to a system that is objective. If you go from a system that gives the Republicans one more seat than they would get under a fair system, well then the Republicans are going to complain.

I do not think rectangles are inherently prettier than circles, and they are certainly not simpler (a circle needs one parameter; a rectangle two). But you can't cover a state with disjoint circles the way you can with the rectangle-like (the parts on the boundary will of course not be straight and right-angled) Mithriblocks.

Your idea about circles starting at city center was addressed above in my example of "pseudo-objective" solutions. That first circle might very well be 90% Democrat because it's all inner city. That's why we want to avoid anything that picks out certain features and focuses on them — this makes it too easy to manipulate for partisan gain.

Moreover, if you really did concentric circles, that second district would be a ring, which I don't think is ideal in terms of convenience (more convenient than, say, randomly assigning each individual to a district, sure, but still not very convenient).

You say splitting up a city makes city interests potentially less represented. I don't know about that. They'd have less representation in each district they were in, but in more districts. I don't know that it's inherently better to have a "city" district and a "country" district. You'd have one representative voting "city" interests and one "country" interests with no reason to ever compromise. It might be better to have two moderate representatives who have to appeal to broader interests. I don't know for sure that splitting interests is a better outcome for the world, but I don't see that it's obviously not — and I prefer a system that ignores these types of things in favor of objectivity anyway.

Geez. Did I even read your post? You anticipated and accounted for half of what I wrote — and I wrote it all anyway, like I'd had some great revelation. I did read the post: I swear. I just didn't go back and read it again two days later when I wrote the comment.

But to your last points — I think there is something to the view that the more uniform the interests are, the better represented they will be. This is the underlying rationale for having congressional districts (indeed, a Congress) in the first place. And you have accepted a certain amount of this, by choosing to work within the district framework. After all, why hang on to districts, if we're going to radically overhaul the system?

The district framework is not constitutionally mandated: Article I, § 4 simply leaves matters to the states, while vesting Congress with the authority to override the states' judgments on how to elect their representatives. (It's a federal statute that inflicts the district framework on us.) So it might well be possible, notwithstanding what I wrote earlier, to implement the Mithrimander fix in a single federal statute.

If you were interested in abandoning local interest entirely (and I don't think you are), you could dispense with the districts and simply have all the voters in a given state vote for all that states' representatives — subject, I suppose, to the caveat that this approach might overempower voters in, say, California, because they're electing 53 representatives, whereas in Alaska it's just one (although I don't think that system would raise any constitutional issues — it would just piss people off).

But I suppose your approach does the job of optimizing local interest representation under 'mander-pure conditions.

I'm not interested in abandoning local interests. I think districts are good for that — and better obviously than just everyone in the state voting for everyone. You will get at least local interest from the Mithriblocks (yes, I like typing that word) — you just might not get specific group interests such as city or merchant (from back in the day). But it will certainly be local.

I'm glad that this could all be done by federal statute. We'd have to do some analysis, but as long as the near-term impact didn't change the expected breakdown by much, there's hope. And of course, you make this take effect ten years down the road so no one needs to vote their self-interest by voting against.

One more thought on shape. An advantage of Mithriblocks is that they will all be rectangularesque. The way you can tell a Gerrymandered district is by its odd shape. So it will even look fair and objective to a casual observer — this might not be true for some complex arrangement involving several circles around different population centers. There is something to be said for transparency, I think.


WLWT in Cincinnati reports:

SPRINGFIELD, Ohio -- A Tri-State woman is in critical condition Wednesday after police say her husband shot her while they were having sex.

Timothy Havens, 38, told Springfield police he was reaching for something on the nightstand when the pistol went off, hitting his estranged wife Carolyn in the upper chest.

(emphasis added)

Subject to a restraining order, yes. "Estranged?" Quoth Inigo: "I do not think that word means what you think it means." If you're having sex with a woman, it's hard to describe her as "estranged."

Of course, now that you've gone and shot the woman, anything's possible going forward . . .

UPDATE: Oh, and I'm not sure what the distance-buffer was in the restraining order, but I'm pretty sure penetration would put you in violation of it.

UPDATE: Not that it would be enforced, if the relations here were consensual, as it appears (up to the point of the gunshot).

UPDATE: I think I should win some sort of award for writing first the post, and then two, going on three, updates, without trying to make something clever out of the report of a "pistol going off" in this context.

A Window into Obama and His Politics, ca. 2005

Here's a blast from the past, a blog post then-Senator and not yet candidate-for-President Barack Obama wrote to the fulminating orcs at The Daily Kos who had recently expressed inclinations to wring the necks of Democratic Senators who had voted to confirm John Roberts as Chief Justice.

It's a long post — Phutatorius-long — and perhaps it displays a bit of a weakness on the President-elect's part for lecturing. When I finished it, I found myself too spent to look down into the comments to see how well it was received.

That said, the post also reveals many of the personal qualities that make me hopeful about an Obama Administration: a firmness in belief, an ability to see the other side of a controversial issue, political sophistication, longsightedness, perspicacity, articulation. And it gives an inkling into Obama's politics, which — based on what he wrote here — are moderate, conciliatory, principled, inclusive, evenhanded, thoughtful.

One excerpt in particular speaks to these qualities:

From traveling throughout Illinois and more recently around the country, I can tell you that Americans are suspicious of labels and suspicious of jargon. They don't think George Bush is mean-spirited or prejudiced, but have become aware that his administration is irresponsible and often incompetent. They don't think that corporations are inherently evil (a lot of them work in corporations), but they recognize that big business, unchecked, can fix the game to the detriment of working people and small entrepreneurs. They don't think America is an imperialist brute, but are angry that the case to invade Iraq was exaggerated, are worried that we have unnecessarily alienated existing and potential allies around the world, and are ashamed by events like those at Abu Ghraib which violate our ideals as a country.

I must say I don't like some of the comma usage here, or his use of "which" where "that" seemed more appropriate. But substantively, could he be more spot-on?

Then-Senator Obama was, no doubt, thinking Presidency when he wrote this post — but he wasn't under the microscope at this point, and he delivered these sentiments to an ostensibly hostile audience (albeit Kevlar-vested in the privileges and immunities of one who had himself voted against Roberts's confirmation). There was no overarching second audience of moderates and conservative to appeal to here. Those folks don't read The Daily Kos.

I think this post says a lot about our President-elect, and it crystallizes why I like him so much. I daresay (of course) that Barack Obama consistently, if not unfailingly, displayed the same personal qualities and maturity of his politics during his candidacy for the Presidency, and I hope that when he assumes the Oval Office the same even, cooperative, thoughtful temperament will carry him — and us, if we're lucky — through some of the difficult times we see on the horizon.

I leave it to Mithridates (and Vercingetorix, if he's out there and so inclined) to judge whether I ought, by virtue of this comment, to be lumped in with the other blue-fleeced sheep in Obama's spellbound flock.

The guy shows a remarkable clarity of intellect and refreshing willingness to consider different points of view. I think he's proven that he has it in him to a great leader. My early willingness to support Clinton and then McCain over Obama had nothing to do with his potential. He has demonstrated — more than any candidate I remember — a whole lot of upside.

We'll know you're part of the spellbound flock if you expect too much practical good to come out of his demeanor and intellect or if you fail to criticize him when he does stupid things like giving those assheads at GM a single penny . . .

Actually, it would be pretty Solomonic — or maybe reverse-Solomonic is the more apt description — if he gave the Big Three just that, a single penny.

Put the three CEOs at the points of an equilateral triangle. Place the penny at the center (i.e., at the spot where the lines bisecting the three angles converge), and give them an hour to fight for it. Whoever's holding the penny when the clock runs out gets bailout money.

This strategy would have the effect of (1) identifying the most competitive and ruthless CEO (and therefore the one with the most upside; (2) appropriately demeaning these pathetic men); and (3) if you run this in prime time and sell advertising, raising some of the money.

Damn. That idea was so good it should have been in a post, not a comment.

I think your idea is legitimately brilliant, but you betray your ignorance of geometry.

In any triangle, the angle bisectors meet at the incenter, the one you describe; the perpendicular bisectors of the edges meet at the circumcenter; the three medians meet at the centroid; the altitude lines meet at the orthocenter.

In an equilateral triangle there really is no ambiguity about the center as all four centers occupy the same point.

What's the word for the center of a circle drawn around the triangle's three vertices? That ought to work here, too.

That would be the circumcenter I described above.

Tuesday, December 02, 2008

Blood in the Water: Apple's Class Actions

It's generally accepted in the tech community, and in the broader population, too, that Apple makes terrific, user-friendly products. So why is it, then, that there are so many consumer class action cases pending against Apple in the courts? The answer is a simple one: one class action attorney took a shot at suing Apple. Apple settled a frivolous claim. Now there's blood in the water, and the sharks are circling.

In December 2003 plaintiffs' attorneys filed a consumer class action suit in against Apple in California state court over the battery life of its early iPods. The lawsuit had no legal basis. All sorts of appliances contain lithium ion batteries. Lithium ion batteries wear out after a certain number of charge cycles, rendering the appliance useless if the battery isn't replaced. Sometimes surgery is required to replace the battery. Apple made no representations that its iPods were immortal, or that they would last longer than they did. The company did supply a limited warranty, and from what I can see, nothing about the iPods' battery life breached its terms. Sure, folks were exasperated that when confronted with this issue, Apple proposed to charge them $100 to replace the battery (or its employeees tried to take advantage of the moment to sell them a new iPod — I myself wrote something pithy to Apple about this some time ago). This was a matter of some controversy for Apple, and it's fair to say it marked the end of the company's iPod Honeymoon.

But the core of the matter is that the class plaintiffs' cause of action against Apple was very weak, but rather than absorb the discovery costs, legal fees, and the ongoing PR hit of litigating the case on the merits (to an uncertain, if nonetheless very likely favorable conclusion), the company elected, in June 2005, to settle the case for approximately $15 million. The court approved payment of $2.7 million in attorney's fees to class counsel.

Since that time, Apple has been inundated with consumer class action lawsuits. Here's an exhausting — if not exhaustive — list of the cases Apple has pending right now (and in the spirit of completeness I've thrown in a few that have been recently dismissed as well):

*Six class complaints (Wimmer v. Apple Computer, Inc., Civ. No. 5:05-4244 (N.D. Cal. Oct. 19, 2005); Moschella v. Apple Computer, Inc., Civ. No. 5:05-4372 (N.D. Cal. filed Oct. 26, 2005); Kahan v. Apple Computer, Inc., Civ. No. 1:05-9251 (S.D.N.Y. filed Oct. 31, 2005); Jennings v. Apple Computer, Inc., Civ. No. 5:05-4520 (N.D. Cal. filed Nov. 4, 2005); Rappel v. Apple Computer, Inc., Civ. No. 3:05-5622 (D.N.J. filed Nov. 23, 2005); Mayo v. Apple Computer, Inc., Civ. No. 3:05-1382 (M.D. La. filed June 6, 2006)), now consolidated under a single multidistrict litigation caption (MDL No. 1754), alleging a design defect in the first generation iPod Nano's LCD screen.

COMMENT: The first generation Nanos were released on September 7, 2005, hard on the heels of the iPod battery settlement. By the end of October Apple was already served with three class action suits over scratched display screens. Coincidence? Hardly. In fact, when you consider the time it takes to evaluate a product, identify its defects, then slap together a coherent class complaint, it wouldn't surprise me if Mr. Wimmer's attorneys didn't get hold of the first Nano ever released — for the sole purpose of beating the hell out of it and then bringing suit. Apple made no promises about the display screen: there are causes for customer dissatisfaction, and there are grounds for lawsuits. With the battery settlement, Apple has allowed class attorneys to blur the distinction.

*Three cases (Leung v. Apple Computer, Inc., Civ. No. 07-4143 (N.D. Cal. filed Aug. 13, 2007); Stiener v. Apple, Inc., Civ. No. 07-04486 (N.D. Cal. filed Aug. 29, 2007); Trujillo v. Apple Computer, Inc., Civ. No. 07-04946 (N.D. Ill. filed Sept. 6, 2007)) complaining that the battery life in Apple's iPhones is too short. Leung voluntarily dismissed his case shortly after filing. Apple recently won summary judgment in Trujillo, as the court found that it made adequate disclosures about its lithium ion batteries on the iPhone's packaging (a lesson no doubt learned from the iPod cases).

COMMENT: These claims are the lousy iPod battery claims all over again, with a different product. Next!

*A class lawsuit (Li v. Apple, Inc., Civ. No. 07-4005 (E.D.N.Y.)) brought on behalf of persons who bought iPhones before Apple reduced their price by $200, to recover what buyers "overpaid."

COMMENT: This is the gold standard of frivolous class action lawsuits. Brush aside for a moment the complaint's several citations to federal laws on price discrimination and underselling — and just imagine living in a society that requires businesses that discount their sales prices to reimburse all their previous customers for the price difference.

*Two class complaints (Smith v. Apple, Inc., Civ. No. 08-AR-1498 (N.D. Ala. filed Aug. 19, 2008); Walters v. Apple Computer, Inc., Civ. No. 4:08-002484 E.D. Ark. filed Sept. 12, 2008)) claiming that Apple's advertising of its G3 iPhones as "twice as fast" for "half the price" was misleading and deceptive.
*Two other 3G class complaints (Sen v. Apple Inc., Civ. No. 1:08-03864 (E.D.N.Y. filed Sept. 22, 2008); Gillis v. Apple Computer, Inc., Civ. No. 08-01835 (S.D. Cal. filed Oct. 8, 2008)), both of which target the adequacy of the 3G service, with the Sen case appending claims relating to "hairline cracks in the iPhones' casing."

COMMENT: The iPhone 3Gs were only released on July 11, and the third-generation lawsuits have come in short order. There's a rhythm emerging here: product is released, purchased, reviewed, broken, and then it becomes the subject of a lawsuit. The fact that attorneys are basing their claims on the puffery in Apple's ad slogans signs as well that it's open season on the folks in Cupertino.

All of the above cases are brought under state and/or federal consumer protection laws, and the substance of the claims is that Apple acted unfairly or deceptively in selling iPods and iPhones that did not comport with the buyers' expectations. The plaintiffs' argue from here that Apple had a duty to disclose the deficiencies in their products (or, as in the "twice as fast" cases, to refrain from exaggerating their merits in promotions). All these claims are patterned after the plaintiffs' theory of relief in the battery litigation.

And I haven't even bulleted the parallel actions that are pending in other jurisdictions, include Canadian class litigation over iPod battery life that Apple settled earlier this year. The Canadian class litigation was filed on June 7, 2005, five days after Apple settled the U.S. litigation on the same issue. Truly a game of Whack-a-Mole here.

Class action attorneys are exploring other claims against Apple, beyond those sounding in the consumer protection laws. These include:

*A product liability class action (Birdsong v. Apple Computer, Inc., Civ. No. 06-02280 (W.D. La. filed Jan 30, 2006)) seeking damages for hearing loss resulting from iPod and earbud use, on design defect and failure to warn theories.

*A class complaint (Holman v. Apple, Inc., Civ. No. 07-05152 (N.D. Cal.)) claiming that Apple's "bricking" of the iPhone — i.e., its exclusive cellular service provider deal with AT&T — violated the Cartwright Act, California's antitrust law.

COMMENT: I'm far from an antitrust law expert, but this seems to me to be another case of class attorneys trying, into the teeth of reason and good sense, to fashion a common geek-complaint about a product into a cause of action. Consumers aren't entitled — even in California — to have McDonald's serve them Pepsi. Absent evidence that Apple and/or AT&T is leveraging monopoly power here, there is no legal claim here. And for that matter, hackers have devised their own workarounds.

*Four class complaints (Slattery v. Apple Computer, Inc., Civ. No. 05-00037 (N.D. Cal. filed Jan. 3, 2005); Tucker v. Apple Computer, Inc., Civ. No. 06-04457 (N.D. Cal. filed July 21, 2006); Black v. Apple, Inc., Civ. No. 07-61395 (S.D. Fla. filed Sept. 28, 2007); Somers v. Apple, Inc., Civ. No. 07-06507 (N.D. Cal. filed Dec. 31, 2007)) brought under the Sherman Act, the Cartwright Act, and other state consumer protection provisions, centered on Apple's iTunes/iPhone product-tying practices. Black has been transferred to the district court in California, and the cases have been consolidated under a single caption. I'm pretty sure the Somers plaintiff is a classmate of mine.

COMMENT: Of the cases I've listed, these are the closest to advancing cogent, viable legal theories, simply because of the iPod's tremendous market share. There is the potential to make monopoly arguments here. And as it happens, the Slattery case was filed five months before Apple settled the iPod battery case — it's a relic of an era when meritorious claims were the order of the day. That three other suits have followed, in pile-on style, is more evidence of Apple's predicament.

It's commonplace by now to compare lawyers to "sharks," and I indulged that cliché at the beginning of this post. In Apple's case, an analogy to piranhas may be more appropriate. The company has literally been swarmed over with junk class action claims — and all because it displayed a willingness to settle a claim it could easily (in my view) have won if it had litigated to the hilt. Now the company can't even change a price point without finding itself haled into court over it, and if (God forbid!) it should release an actual product, trumped-up claims will arrive by the dozens. And if the product is popular, or even iconic, so much the better, from the plaintiffs' perspective, as the prospective class will be even bigger.

If Apple had that first battery case to do over, knowing what it does now, do you suppose it would settle? Eesh.

Getting Absurd and Creepy

So after the conventions I pretty much made up my mind about who I was supporting and signed up at the Obama web site. At first I was impressed with their organization and how they kept all their supporters informed and managed their volunteers. I even gave the guy $50.

After the election the pleas for money kept coming — this time to help bail out the DNC. Hmmm, not really what I signed up to support, but OK, you can have my kind "no thanks" and we'll both move on.

But today's Your Obama Holiday Fleece email asking me for a $50 or more contribution to get that thing to the right in time for the holidays is just a tad bit bizarre. First of all , the money goes to the DNC, so not a chance. But there's something eerily Uzbekistan/North Korea dictator worship-like about wearing around clothing with my President's logo on it. Obama-for-President gear is one thing. Everyone's got that and it's become part of our democratic tradition.

But now that he's elected, it's time to stop. We're a nation of laws, not of men. Now that we've cast our vote, we should support our country, not commit ourselves to one particular leader; we should criticize the guy when we think he's wrong, support him when we think he's right, give him the benefit of the doubt, at least at first; and in four years we should pick someone else if he he doesn't do his job.

Don't get me wrong. I like the guy and so far am happy with his centrist shift and his apparent value of competence over ideology. And yes, Alex P. Keaton had a poster of Reagan in his bedroom — this isn't entirely new territory. But can we just nip this cult of personality crap in the bud, please?

Monday, December 01, 2008

Civics Test

Everyone's favorite female, Palin-slamming, conservative columnist is up in arms about Americans "failing" a civics test given by the Intercollegiate Studies Institute. The average score was 49% (44% for elected officials — e.g., What does the Vice President do?), which is failing on the standard "less than 60%" scale. But, of course, this is only alarming if the questions are easy enough. I'm sure I could come up with a civics test that even Phutatorius would fail.

So, I took the test. Take it before reading further, because I'm going to spoil some of the answers.

It was kind of fun, but I'm not sure how alarmed we should be about the 49% average. Some of the questions were a bit tough for someone who doesn't study this stuff. But more importantly, I'm not sure how relevant all of them were and a number of the questions had some questionable answers (I'm still unconvinced about the Public Good question).
  • We have federal, state, and local government. Do I care that these aren't "branches"?
  • If someone knew Lincoln and Douglas debated about slavery, but not the specifics of the debate, does it matter?
  • If people knew more about what Socrates and Plato agreed on would they have voted for McCain?
  • Since we don't "Declare War" anymore and just wage war, is it even relevant that only Congress has that power?
  • If you buy me a cookie, is it a public good?
What would be more interesting is which wrong answers people gave. If you picked East Berlin over Cuba, or didn't know which amendment right to counsel was, then we're OK, I think. But what I want to know is what percentage of respondents thought:
  • The Electoral College trains people for higher office.
  • Canada and Mexico — nailed it, Governor! — were our enemies in WWII.
  • Congress shares foreign policy powers with the UN.
High numbers here would be troubling, sure, but a lot of the questions had reasonable alternatives. People actually did better than I thought they would . . .

And yes, I got an A. Missed exactly one question. The damn public good question. And I'm not sure they're right. But I also got lucky on a few . . .

Missed two — had the right answer on the Anti-Federalist question, then I changed it. I guess I read "government debt" to mean "budget deficit": my other mistake.



Public good still bothers me. A resident can benefit from it without directly paying for it? Again, if you buy me a cookie . . .

I admittedly got lucky. I didn't know the Socrates one, but it seemed right. The free markets one was process of elimination.

Kathleen Parker -- God love her! -- is so far off the right-wing reservation right now, it isn't even funny. She clearly understands that it has been the Republicans' political strategy, in the last two Presidential elections, not just to appeal to stupidity in the electorate, but to cultivate it.

I think Kathleen recognizes, as you and I do, that there is a space in the American political forum for bright people with ideas ("BPWIs") -- and just as the GOP isn't alone in prioritizing national security, the Dems have no monopoly on BPWIs.

If there ultimately emerges a conservative movement to challenge the GOP's Know-Nothings, you can expect Ms. Parker to be one of its champions. And possibly Peggy Noonan, too. This is, I think, Vercingetorix territory, and it's why I'd like to see him blogging here someday.

Today's Double Entendre: Hitler's Nuts

Writing for Slate, Hitler biographer Ron Rosenbaum resists popular speculation that Angry Adolf was monorchid (that's my Word of the Week, by the way). His reasons? That (1) an early-onset monorchism isn't supported by the evidence; (2) the late-onset theory wouldn't explain away The Crazy/Evil; (3) the story emphasizes Hitler's psychopathology and impliedly excuses everybody else in Germany; and (4) it allows us to disregard our own, very human, capacity for evil.

I'll allow him all that, but there's upside here, too: thanks to these stories, we're free to picture the 20th century's Biggest Jerk having his left testicle bitten off by a goat. And that's pretty satisfying.

King of all the Gauls

Today we are addressing a vexing question: why doesn't Vercingetorix ever post or comment on this blog? I don't know the answer, but here are a few theories:
  • He's just been stripped and forced to kneel in front of Caesar and kiss Caesar's golden eagle and can't get to a computer right now
  • He might have to write something about Sarah Palin and have it etched in stone. This is problematic because if he writes something positive, the logic of such an inherently illogical argument might be shredded in a public forum; but if he writes something negative, he might have to change tack and defend her in four years
  • He doesn't like to share blogs and would rather control all discussion himself
  • When he runs in the Republican primary, he doesn't want a proven association with secular fundamentalist communists like Mithridates and Phutatorius to hamper his bid
  • He doesn't like the layout — I don't blame him, I don't like the layout either
  • When logically cornered it will be obvious that he didn't respond and acknowledge the cornering, whereas with email he can simply not respond and hope the subject is forgotten
Any other ideas?