P.L.A. - A Journal of Politics, Law and Autism

2003-09-11T14:59:00.000-04:00

PLA Table Contents -- Introduction

As promised, below is a table of contents of a sort for some of the posts appearing here at PLA. I have attempted to sort the posts by themes. It should be no surprise that the first cut of sorting was into the areas of Politics, Law, and Autism. A fourth category unto itself is the group of posts comprising the 2002 Koufax Awards. Click on the appropriate category to jump to it or simply scroll down.

The listings are not exhaustive. I selected which posts to include. My worst writing, incorrect predictions and just plain stupid stuff remains buried in the archives where I hope it never sees the light of day.

Before posting the table, I wish to call your attention to the PLA copyright policy. It is contained in this post. It purportedly originated with Woody Guthrie. The policy says:

This song is Copyrighted in U.S., under Seal of Copyright # 154085, for a period of 28 years, and anybody caught singin it without our permission, will be mighty good friends of ourn, cause we don't give a dern. Publish it. Write it. Sing it. Swing to it. Yodel it. We wrote it, that's all we wanted to do.

That is all I wanted to do as well.

2003-09-11T14:49:00.000-04:00

Politics

I have written a number of essays for PLA about politics, broadly defined. It was difficult to categorize some of those posts. I finally decided to organize the posts into the following seven categories:

1) Honesty and the Bush Administration

2) Economic Performance (The Just For The Record Series and other posts)

3) Budgets and Taxes

4) The Policy Making Process of the Bush Administration

5) Foreign Policy

6) The Responsibility Era

7) Politics and Race

1.Honesty and the Bush Administration

The following essays concern the truthfulness of the Bush Administration:

9/27/02 Uniters and Dividers

10/19/02 George W. Bush as Eddie Haskell -- Part I

10/19/02 George W. Bush as Eddie Haskell -- Part II

10/22/02 To Tell the Truth

10/28/02 That’s Their Story and They’re Sticking To It

11/21/02 Mistaken Identity

12/09/02 Count Your Fingers

12/17/02 Count Your Fingers Update

2/22/03 Hall Of Fame

2/25/03 Lies, Distortions and Deception

7/15/03 Cue David Letterman

8/06/03 Promise Breakers

2. Economic Performance (The Just For The Record series and other posts)

10/16/02 Just for the Record -- Budget Deficits

10/24/02 Just for the Record Part II -- Government Employment

10/27/03 Just for the Record Part III – Economic Growth

10/27/02 Just for the Record Part IV – Unemployment

10/31/02 Just for the Record Part V - Inflation

3/02/03 Just for the Record—Budget Deficits Revisited

11/11/02 Utterly Wrong

10/20/02 GOP “Economic Plan"

1/07/03 Heresy

7/09/03 Economic Performance and Political Party of the President

8/7/03 Job Creation Scorecard For July

3. Budgets and Taxes

Another category of posts is Budgets and Taxes

12/07/02 Double Taxation

4/12/03 A Budget Balanced (Maybe, Sort of, Someday)

4/20/03 Get The Lead Out

4/23/03 Is The Social Security Trust Fund a Fraud?

4/25/03 Krugman vs. Luskin

5/07/03 A Powerful Resistance to Shame

5/5/03 Paging Ken Starr

7/19/03 Faith Based Budgets

7/19/03 Bill O’Reilly and Rumplestiltskin

7/25/03 The Tao of Deb – Deficits Matter

7/20/03 Choose Wisely

8/12/03 Would You Like a New BMW?

4. The Policy Making Process of the Bush Administration

Those posts include the following:

8/28/02 Tactical Hubris

9/04/02 Be Careful What You Ask For

9/21/02 Why the GOP is like the Mets, or The Failure of Republican Domestic Policies

9/25/02 Garbage In – Garbage Out

12/08/02 They Have A Secret

12/11/02 More Secrecy

1/11/03 George And The Wolf

1/24/03 Karl’s Magic Elixir

4/03/03 Joliet George

4/07/03 Contempt For Congress

5/09/03 Tax Cuts – A Faith Based Initiative

5/26/03 Ivory Tower Dreamers

7/28/03 Contempt For Facts

6. Foreign Policy

The next category concerns foreign policy. Those posts include the following:

9/29/02 Terrorism and U.S. Responses 1980-1988

10/03/02 Disarmament vs. Regime Change

10/06/02 Coup, Assassination or Exile

2/05/03 Investigation Costs

3/08/03 The Real Story

8/06/03 Blue Ribbon Panel

8/08/03 Gorelick Must Resign the 9/11 Commission

8/29/03 The Kay Standard

6. The Responsibility Era

Another category consists of essays on Mr. Bush’s introduction of the Era of Responsibility. Those essays include the following:

2/10/03 The Responsibility Era

2/11/03 The Responsibility Era -- Foreign Policy

2/12/03 The Responsibility Era – The 9/11 Investigation

2/13/03 The Responsibility Era -- The Balanced Budget Amendment

2/27/03 Taking Responsibility

7. Politics and Race

The following posts concern race and American poltics.

12/25/02 Political Morality vs. Political Expediency

12/24/02 Tolerance

1/06/03 American Heroes

2003-09-11T14:16:00.000-04:00

LAW

PLA posts about the law are divided into two groups. The first group consists of posts about tort reform. The second group consists of essays on various other aspects of the law.

Tort Reform

11/22/02 Missing Class Can be Costly

1/18/03 The Damages Cap

1/18/03 Defensive Medicine

1/23/03 Tort Reform and Frivolous Suits

3/06/03 Tort Reform Quiz

3/05/03 A Different Kind Of Medical Malpractice Reform

3/13/03 No Pricing Power

3/31/03 More Tort Reform and the Damages Cap

3/31/03 Tort Reform Stalls In Senate

5/21/03 Curbing Frivolous Lawsuits – A Tort Reform Proposal

5/22/03 Eliminate Junk Science --- A Tort Reform Proposal

5/24/03 George Bush’s Perverse View of Juries

6/15/03 Medical Malpractice – By The Numbers

7/01/03 Mort Zuckerman Gets Busted

7/22/03 Frivolous Suits and Improper Purposes

7/24/03 Focus The Mind

8/15/03 How to Deal with Frivolous Suits

8/20/03 Better Evidence

8/28/03 A Different Kind Of Tort Reform

Essays on Various Other Legal Issues

9/14/02 The Law and Politics of the Second Amendment: a Liberal View

11/26/02 Reshaping Miranda

1/04/03 Juries

1/12/03 A Renewable Resource – Victory

2/1/03 Write The Letter

1/30/03 Washington Legal Foundation Funding

1/28/03 The Outrageous Washington Legal Foundation

2/07/03 Video Tape All In-Custody Interrogations

1/27/03 Affirmative Access

2/13/03 Filibuster, Fairness and Moral Authority

2/22/03 A Plague on Both Their Houses

3/07/03 The Politics of the Estrada Filibuster

3/07/03 The 8th Amendment and Proportionality

3/03/03 Federalism, The Commerce Clause And Cloning

3/12/03 Two Masters

4/10/03 Like a Good Neighbor

5/12/03 Judicial Nominations and Republican Plans

6/4/03 The Blogger and The Beauty Queen

6/23/03 Justice O’Connor’s Expectation

5/05/03 Jurors Turn Away From Death Penalty

6/29/03 Individualized Consideration

8/28/03 Eye Witness Testimony

2003-09-11T13:58:00.000-04:00

Autism

I have written a number of posts about autism. The first group of posts concerns family life in a household with an autistic child. The second group concerns autism issues in the news and my commentary on those issues.

Family Life

8/29/02 What is Autism?

9/01/02 Autism, Paul Lynde and Obsession

9/17/02 Autism and Siblings

9/27/02 Autism, Diet and Laughter

10/15/02 Autism — Fun At An IEP

5/16/03 Tell His Parents

6/01/03 Restaurant Rules

News and Commentary

9/10/02 Autism--- An N of 1

9/22/02 Autism – Bruno Bettelheim and the Nature of Evil

10/18/02 Autism -- Increase in the Incidence of Autism

11/12/02 Autism, Pure Rage and Thimerosal

11/14 Homeland Security and Thimerosal

11/16 Thimerosal Update

11/19/02 More Thimerosal and Autism

11/27/02 Autism -- And The Hits Just Keep On Coming

11/25/02 Autism -- Repeal The Birth Tax

12/10/02 Autism and Vaccines in the News

12/19/02 Thimerosal Again

12/23/02 Under Cover of Darkness

12/24/02 The Natural Experiment

1/11/03 The Incidence of Autism -- The CDC Study

1/22/03 The Birth Tax Just Went Up

1/20/03 Autism -- Finding Acceptance

2/07/03 Researchers May have Found A Genetic Link to Autism

2/04/03 Limbaugh and Bettelheim: The Blame the Parents Brigade

3/29/03 Senator Frist’s Proposed Changes To The NVICP

4/09/03 A Correlation Between Thimerosal and Autism

5/02/03 Were Newton and Einstein On The Autism Spectrum?

5/13/03 Let’s Hope Al Qaeda Does Not Recruit Autistics

6/24/03 Forced Vaccinations – Some Questions

6/26/03 Forced Vaccinations – Some Proposed Answers

7/10/03 Forced Vaccinations – Anthrax

7/08/03 A Sad Tale

7/07/03 Autism- Multiple Causes?

7/22/03 Autism and Head Circumference - The JAMA Article

8/18/03 Speeding For Autism

8/23/03 A Cruise On The Lake

8/24/03 Torrance Cantrell – Rest In Peace

8/25/03 Torrance Cantrell’s Death Ruled Homocide

8/27/03 Sympathy For the Mother

2003-09-11T13:43:00.000-04:00

The 2002 Koufax Awards

The following posts comprise all of the posts about the 2002 Koufax Awards.

12/12/02 Announcing The Koufax Awards

12/16/02 And The Nominees Are …

12/16/02 Best Pro Blogger

12/16/02 Best Blog

12/16/02 Best Writing

12/16/02 Best Series Nominations

12/16/02 Best Post

12/16/02 Best Single Issue Blog

12/16/02 Most Humorous Blog

12/16/02 Most Humorous Post

12/16/02 Best Commentor

12/16/02 Best New Blog

12/16/02 Best Special Effects

12/16/02 Best Design

1/03/03 The 2002 Koufax Award Winners Are…

1/03/03 Best Pro Blogger

1/03/03 Best Blog

1/03/03 Best Series

1/03/03 Best Writing

1/03/03 Best Post

1/03/03 Best Single Issue Blog

1/03/03 Most Humorous Blog

1/03/03 Most Humorous Post

1/03/03 Best Commentor

1/03/03 Best New Blog

1/03/03 Best Special Effects

1/03/03 Best Design

2003-09-02T14:00:00.000-04:00

Many Thanks

I have been publishing PLA for a little over a year. It has been an interesting and enjoyable experience. After considerable thought, I have decided that PLA is not the proper medium for the things I want to write.

Like most things, the origins of PLA involved a number of motivations. My first and most important motivation was a desire to write. My year of writing on an almost daily basis has increased, not abated, that desire. I will continue to write but I feel the need for a different forum.

Secondly, I started PLA, in part, out of the conceit that that I had some small measure of insight to share. For instance, I have written a number of essays about the Bush administration. The thesis of many of those essays was, at the time, directly contrary to conventional wisdom about the straight-talking, morally clear Texan who occupies the Oval Office. I have been surprised that much of my view is now shared by a number of observers and may yet become conventional wisdom itself. I lack sufficient conceit to think that PLA played any role in that development but I am pleased that the curtain has been pulled back to reveal the nature and identity of the wizard.

Third, I began PLA in hope that I could force myself to write about autism. I hoped that the discipline of writing would allow me to gain some much needed perspective. In truth, I thought that I needed to write about autism as a form of therapy.

As a form of therapy, PLA has been largely successful. I can now talk (and write) about things that were verboten at this time last year. Writing about autism has helped me gain a measure of acceptance of circumstances that was not previously possible. I also hope that I have made autism less of a mystery to others.

I am shutting down PLA. I want to make an effort at writing longer pieces requiring more research and analysis than the pace of daily posting permits. I do not know if, when or where such writings may be published. For me, publishing is not the most important point. I want to explore the depths of several areas of interest in an effort to find understanding. I may start a new blog, I may try to join a group effort (if any will have me) or I may try to publish in a different form.

In the meantime, look for me on the comment boards. I plan to post an index to much of the material appearing at PLA over the last year. After that, we shall see what the future holds.

Someone should pick up the idea of the Koufax Awards and run them again this year. The awards provide a way for lefty bloggers to come together and say lots of nice things about each other. The awards help strengthen the entire community. They will also increase your traffic.

Thanks to the many people who have found PLA of sufficient interest to provide a link or a comment. Most of all, thanks to the people who have given me your time and attention over the last year. It was a lot of fun and I am the better for it. I hope you do not feel that I wasted your time.

2003-08-29T12:30:00.000-04:00

The Kay Standard

Sometime after Labor Day, the administration will roll out a new product with regard to Iraq. That new product will take the form of a report by former U.N. arms inspector David Kay detailing the findings of his investigation into Iraq’s WMD.

Some have looked to the release of that report for justification of the administration’s policy. For instance, earlier this month, Rich Lowry, wrote the following at NRO’s The Corner:

Here's what I'm hearing. Take it with a grain of salt: The Bush administration is very confident that it will be vindicated on the WMD front--because it already has the evidence. The word is that David Kay has told Congress that he has a very solid case on Iraq's bio-weapons program, with evidence wending its way through a confirmation process as we speak. Also according to Kay's congressional briefing, he will have a good case on other weapons programs as well. We should hear more in September, and it will vindicate those-i.e., nearly everyone--who said Iraq had active WMD programs. For what it's worth...

After the bombing of the UN compound in Baghdad, Lowry argued for the early release of the report to prevent deterioration of public support for the administration:

This weekend will be full of Iraq-angst commentary and more argument that we shouldn’t be there in the first place. One way for the administration to remind people why we invaded would be to move up the release of David Kay’s information regarding Iraq’s WMD programs, however preliminary. It’s not enough just to say that we are there for the good of the Iraqi people. The American public needs to hear again that this intervention was grounded in America’s national security, and was not just an act global charity.

Jeff Cooper reacted to Lowry’s suggestion by noting that the most important thing was for the administration to get the report right:

I'm of two minds about this. On the one hand, given the way the administration played fast and loose with WMD information during the leadup to war, Kay's report is going to come under deservedly intense scrutiny. Another bogus performance will eliminate the last scraps of US credibility in the international community--and that's not good for the country. So it would behoove the administration to get it right this time. I'm skeptical about whether they'll do that, but if a few more weeks would help, then so be it.

Yesterday, the Boston Globe reported on the contents of the report:

Investigators searching for Iraq's suspected weapons of mass destruction will report next month that Saddam Hussein's regime spread nuclear, chemical, and biological weapons plans and parts throughout the country to deceive the United Nations, according to senior Bush administration and intelligence officials.

Once freed of inspections and international sanctions, the weapons programs were intended to be pulled together quickly to manufacture substantial quantities of deadly gases and germs, the investigators will argue, although the development of a nuclear weapon would probably take many months, if not years.

After more than four months of searching hundreds of sites in Iraq, the team of US military officers and intelligence agents headed by former UN arms inspector David Kay has not produced hard evidence of weapons of mass destruction. US officials have not ruled out that stocks of weapons will still be found or were secreted out of the country before the war.

But the investigators' conclusions, which have emerged from interviews with senior Bush administration officials and multiple intelligence sources with access to the team's findings, make the White House's best case so far that Hussein hid an outlawed weapons program. A primary justification for toppling the regime was the threat posed by Iraq's weapons of mass destruction.

Josh Marshall is unimpressed:

The strategy behind the Kay report will apparently run something like this: Present a body of evidence that utterly discredits the administration's pre-war arguments about WMD. But dress it up with tons of documents and details. Say it confirms the administration's arguments. And then hope no one notices…

I don't want to make light of this stuff too much. Weapons proliferation is a deadly serious issue. And we really do need a comprehensive report to tell us not just about the lead-up to this war, but everything we can glean about the history of the last dozen years of inspections and sanctions, not least of which how so many people -- certainly, myself included -- bought into many assumptions that simply weren't true.

But Kay's report is clearly going to be as political as it gets. And full of funny business. This is a deadly serious issue. But as long as they're approaching it in this way, it merits ridicule.

How then are we to evaluate the Kay report? I think that the standard to apply to the report is the one established by David Kay last spring.

Jay Bookman, writing in the Atlanta Journal Constitution notes the following:

Kay himself, asked by Chris Matthews back in April what discoveries would justify our invasion, set the standard clearly:

"I think to most reasonable people, if you find biological weapons, anthrax, certainly if you found smallpox work, that should do it. In the chemical area, any nerve agent, VX particularly, ought to be of concern to everyone in the world."

If the Boston Globe report is accurate concerning the contents of the Kay report, the report will fail to justify administration policy by the standards set by Mr. Kay himself. Political posturing and marketing strategy will not change that fact.

2003-08-28T19:45:00.000-04:00

A Different Kind Of Tort Reform

From a Republican perspective, what characteristics would the ideal tort reform measure l have?

Charles Kuffner has a suggestion that would accomplish each of the following:

1) It would reduce the number of medical malpractice suits filed against Doctors and hospitals;

2) It would reduce the total amounts insurance companies pay out on medical malpractice by a substantial sum;

3) It would reduce the income of trial lawyers who bring medical malpractice cases by a substantial sum;

4) It might reduce liability insurance premiums for doctors;

5) It would improve the operation of the free market in medical services industry.

While an ideal Republican tort reform might have additional characteristics, a reform that accomplished the above would look mighty good to most tort reformers.

Before I let you in on Charles’ proposal, let me first tell you the story of Dr. Dr. Merrimon Baker. That story is drawn from a Houston Chronicle article I located via Off The Kuff.

Dr. Baker is an orthopedic surgeon in Cleveland, Texas. Based on the story in the Chron, it is hard to avoid the conclusion that Baker is a very lousy doctor. Consider the following:

Dr. Baker “prescribed 15,000 tablets of Xanax and Darvon to a former intravenous drug user.”

His ex-wife has testified under oath that Dr. Baker was addicted to prescription drugs.

Dr. Baker once left a surgical sponge in a patient after an operation. That is a common and, perhaps understandable error. Dr. Baker, though, also once operated on the wrong hip of one of his patients. On another occasion he operated on the wrong leg.

It has been alleged that Dr. Baker performed an unnecessary operation on a patient’s ankle. The ankle became infected and eventually had to be amputated.

Then there is the case of Richardo Romero who was one of Dr. Baker’s patients.

The Chronicle reports:

In 1998, Ricardo Romero of Humble decided to undergo back surgery.

Romero, a 20-year employee of Houston Marine Services, had injured his back while moving a heavy hose. After 12 months of medication and therapy the problem wasn't better, so he opted for an operation.

He saw Baker's advertisement in the Yellow Pages and liked the fact that Baker was conveniently located at Columbia Kingwood Medical Center. When Romero met Baker, "He seemed pretty nice. He seemed to be knowing what he talked about."

On July 15, 1998, Dolores Romero kissed her husband goodbye before he was wheeled back for what she understood was an uncomplicated operation. Hours passed without word of her husband's progress. When Dolores Romero pressed hospital employees for news, they told her they didn't know anything.

What she later learned was that her husband had lost nearly all of the blood in his body during the operation. Blood for a transfusion was late in coming, and in the meantime his heart stopped beating. His brain, deprived of blood and oxygen, was severely and irreversibly damaged.

All in all, Dr. Baker had 12 allegations of malpractice asserted against him between 1988 and 1998.

Still, Dr. Baker practices medicine in Texas and continues to perform operations.

There can be no doubt that the actions of a small percentage of doctors result in a disproportionate amount of payouts in medical malpractice claims.

The Chron reports:

According to the federal government's National Practitioner Data Bank, 5 percent of physicians listed are responsible for nearly 33 percent of the total dollars paid for physicians in malpractice judgments or settlements from September 1990 to March 2003.

A policy that prevented the worst 5% of doctors from committing malpractice would greatly reduce the number of suits filed. It would lower the payouts and (to the extent that premium rates are effected by payouts) the cost of insurance. It would reduce the income of the trial lawyers while saving patients from much harm.

How could we prevent the bottom 5% of doctors from committing malpractice without violating their rights and creating additional litigation?

The process of revoking a doctor’s license to practice is long, difficult and could ultimately end in litigation.

Hospitals must be careful about denying privileges to doctors as well. In Dr. Baker’s case, two hospitals had denied him privileges but a third welcomed him anyway.

Charles Kuffner suggests a market solution:

One of the keys to a successful free market, as I've always understood it, is unfettered access to full information. If I have no way of knowing that someone is selling widgets across town for one dollar each, I may wind up buying them at my neighborhood store for two dollars each. Or I may not buy them at all because I can't afford them. This is an inefficiency in the market, one that would be solved if full information about widgets had been available to me.

As we see with the story of Dr. Baker, prospective customers have no good way to get the information they need to make their choice. How many patients do you think he would have if his record were easily available? Surely if Ricardo Romero had known, he would have chosen a different doctor for his surgery, and that $40 million jury verdict never would have happened.

I understand that there are privacy issues, and I understand that there are always problems with centralized databases of this sort, but I also understand that the cost of doing nothing is that the Dr. Bakers of the world will continue to practice medicine on an uninformed public. Everybody - patients, competent doctors, insurance companies - loses in that case. Yet here we are, pursuing new government regulation instead of looking for a way to make the free market more efficient. Aren't Republicans supposed to favor that sort of thing?

Making information on past performance of doctors available to the consumer has huge benefits. The dotors with very poor records will have difficulty attracting patients. That is as it should be.

Trial lawyers who earn money from prosecuting medical malpractice claims will lose their best source of new cases, doctors like Dr. Baker.

The major down side of that reform is that doctors fear that consumers will misuse the information. Doctors should put more trust in the free market. The publication of the information in the National Practitioners Data Bank is an idea whose time has come.

2003-08-28T09:38:00.000-04:00

Eye Witness Testimony

Over my years as a practicing lawyer, I have taken testimony from many hundreds of witnesses. If there is one thing I have learned, it is that eye witness testimony is inherently unreliable.

Multiple people, witnessing the very same event, often have vastly differing accounts. No one tells witnesses before the event to pay close attention because they are about to see something important. No one warns witnesses that a year after the event, some lawyer is going to flyspeck her recollection. Events that later take on critical importance occur quickly. The fact that two witnesses have differing recollections does not mean that one is lying.

I once questioned a completely disinterested lady about an event she had witnessed. She was a grandmother and a leader in her church and her community. She was not a liar. Nonetheless, her testimony flatly contradicted the recollection of two other witnesses, all of the medical evidence and at least two laws of physics. She was not lying. She was acurately relating her recollection. She was simply mistaken.

I noticed an example of the phenomenon yesterday.

The Washington Monthly ran an article entitled The Mendacity Index. It purported to be a “scientifically serious” attempt to rate each of the last four Presidents on a menacity scale. The “scientifically serious” part of that description should not be taken too “seriously.”

At any rate, the “study” identified alleged lies told by each recent President and then had each such lie “judged” for seriousness by an expert panel.

Among the statements of George W. Bush submitted to the expert panel was the following:

On many occasions during 2001 and 2002, President Bush talked about a campaign promise made in Chicago that he would only deficit spend "if there is a national emergency, if there is a recession, or if there's a war," sometimes adding, after 9/11, "Never did I dream we'd have a trifecta." Reporters pressed the Bush's communications staff to prove that Bush had actually made such a statement during the 2000 campaign, but the White House couldn't turn up any proof. Bush continued to insist he'd made the promise.

Kevin Drum linked to the piece and, in comments, Donald Sensing said, inter alia, the following:

As for G.W. Bush's campaign statement about deficit spending, I heard him say it.

Figuring that Mr. Sensing had perhaps been at a fundraiser in Chicago when Mr. Bush uttered the elusive qualifiers to his balanced budget promise, I clicked through to Mr. Sensing’s blog. There I found the following:

Calpundit links to a Washington Monthly piece that (surprise!) rates George W. Bush a bigger liar than any of the following presidents: Reagan, Bush the elder, or Clinton.

First "evidence" up: … (Mr. Sensing quotes the Washington Monthly selection above).

Except that I heard Bush say it. Whether he said it specifically in Chicago, I can't say, but he definitely said it during a "town hall" format debate with Al Gore that was broadcast on TV. I was there (in front of the TV). I heard Bush say it. I remember it.

I am quite sure that Mr. Sensing does remember Mr. Bush making the statement. There is only one problem. The statement “witnessed” by Mr. Sensing never happened.

There were three presidential debates in the 2000 election cycle. The first occurred on October 3, 2000 in Boston. It was a single moderator format with Jim Lehrer as the moderator. The transcript of the debate is here.

A review of the transcript reveals that Mr. Bush did not make the qualifying statement that is the basis of his trifecta joke in that debate.

Mr. Bush did accuse Mr. Gore of fiscal irresponsibility:

You leave future generations with tremendous IOUs. It's time to have a leader that doesn't put off tomorrow what we should do today.

Hmm… we may see that remark in a Democratic television ad next year.

The second debate occurred on October 11, 2000 in my hometown of Winston-Salem, North Carolina. Once again, it was a single moderator format with Jim Lehrer as moderator. Once again, Mr. Bush did not state the exceptions he later cited in his trifecta joke. The transcript of that debate is here.

The third debate occurred on October 17 in St. Louis. Once again, it was a single moderator format with Jim Lehrer as moderator. The candidates took questions from the audience. Presumably that is the “town hall” format of which Mr. Sensing writes. The transcript is here.

Mr. Bush never made the qualifying statement about the budget that became the basis for the trifecta joke in that debate.

Mr. Sensing heard Mr. Bush make the statement in the Town Hall debate. The statement that Mr. Sensing “heard” and “remembers” does not appear in the debate transcript. Does that mean that Mr. Sensing is lying?

It most certainly does not. If, before the debate, someone had asked Mr. Sensing to listen specifically to determine if Mr. Bush would make an exception to his promise of a balanced budget for the cases of national emergency, war or recession, Mr. Sensing would have emerged from the debate with the firm memory that Mr. Bush had not made the statement.

Not being forewarned, Mr. Sensing was not focused on the issue until after the debate and his memory of the debate proved faulty. That is just a mistake of the kind we all make.

Over long years questioning witnesses, I have learned to be very skeptical of the accuracy of eye witness reports. Mr. Sensing’s mistake is just another example of the reason for my skepticism. Eye witness testimony has a reputation for accuracy and veracity that is largely underserved.

2003-08-27T16:12:00.000-04:00

Sympathy For the Mother

I stopped writing about the Torrance Cantrell tragedy not because I had nothing further to say but, rather, because I did not want to think about it any more. I’m better now.

Today, I want to talk about Torrance Cantrell’s mom, Pat Cooper. She stood by, and in fact participated, in restraining her son while church members beat, whipped and ultimately compressed her son’s chest, preventing him from drawing of breath. He died as a result.

I do not seek to condone or justify Ms. Cooper’s actions. I do not wish to suggest that she bears no responsibility for her son’s death. I do not condone her actions and I do not believe that her actions were or can be justified. The responsibility she bears for her son’s death is a matter between her and the authorities and between her and God.

Nonetheless, I have sympathy for Ms. Cooper. I have walked a few short steps in shoes vaguely similar to Ms. Cooper’s. Mine are far more comfortable than hers. Atrios writes that:

I agree with the basic point that secular society had failed this woman and her son. It's tough enough to handle having an autistic child when one is highly educated, high income, and with multiple care-givers in the home. It's another thing when, at least from what I've inferred from the not all that complete news reports, you're a single parent of more modest means and education. The difficulty and despair would lead most people to latch onto anything or anyone who promised they could help.

My family finds it difficult to cope with an autistic child and we are blessed with a stable marriage, high income, a box full of advanced degrees from top universities, good insurance, access to the best medical information available (my brother and Dad are both high powered Professors of Surgery at a major medical school and hospital) and the ability to “manage the system” to our advantage.

Pat Cooper appears to have had none of those advantages. It appears that she was a single mom of limited resources coping with a two year old in addition to her autistic son. The difficulty of her situation is hard to overstate.

Jeanne D’Arc today wrote the following:

Why can't people … understand that Patricia Cooper could feel that she had no options, no resources available to her but Faith Temple? Desperate people in every culture fall back on whatever scraps of community and support they can find. If they don't find a good one, they'll take the bad one.

That is exactly right. Pat Cooper made a bad choice but she was not offered a good one. She deserves a measure of understanding and sympathy.

The confluence of two factors is going to further limit the options available to other Pat Coopers. First, our social support systems for autistic kids and families were designed at a time when the incidence of autism was roughly one child in 2,500. The last decade or so has seen an explosion in the number of autistic kids. The best available evidence now suggests that one child in 160 is autistic. A 10+ fold increase in the number of kids who need those services will, by necessity, result in many kids slipping through the cracks.

The second factor is that the funding for the social support systems has not kept up with the need as the states face a budget crisis.

See, for instance, this article from Torrance Cantrell’s home state of Wisconsin:

The cost of a state program providing free intensive in-home therapy to children with autism exploded from $2,363 in 1994 to almost $32 million last year as the number of children diagnosed with the developmental disability grew, according to the state Department of Health and Family Services….

Gov. Jim Doyle has proposed scaling back the program to serve a little more than one-fourth of the almost 1,100 children currently receiving intensive in-home therapy as Wisconsin grapples with a budget deficit…

Under the current program, children can receive 25 to 35 hours a week of intensive in-home therapy until they turn 16. That includes one-on-one attention from therapists who work with the children on skills such as communication and socialization.

Doyle originally proposed eliminating the intensive in-home therapy portion of the autism program in his budget plan after the federal government notified Wisconsin the program would no longer qualify for federal aid that covers 60 percent of the cost.

Doyle said Wisconsin could not afford the therapy on its own because of a $3.2 billion budget deficit for the period through June 30, 2005. Doyle, a Democrat, planned to eliminate the program as one of the many spending cuts he proposed to fix the shortfall…

He changed his mind and presented a scaled-back version of the program after parents of children who are autistic appealed to him to keep it.

The program of intensive, one-on-one training in the home is one of the best options for improving the lives of autistic kids.

Laura of Interesting Monstah asks:

But all this begs another question that I have not seen asked yet: Where was the secular left? Where were the healthcare options for Torrance's mother, who was raising him and his sister on a fixed income?

It is a fair question but the better question is where will we as a society be the next time a Pat Cooper is faced with choices? Will we allow the choice to be made from a menu of bad options or do we want a good choice to be available?

Reducing funding for autism related social support systems at a time of vastly increased need will not present other Pat Coopers with good options

2003-08-27T12:55:00.000-04:00

Advice

I came home from work one day hungry from having skipped lunch. On the kitchen table was a plastic bag full of chocolate chip cookies. I grabbed one and began to eat. The cookie tasted a little odd but I was grateful for anything at that point.

As I chewed, I noticed a piece of paper in the bag of cookies. The paper was a note from the teacher of Bobby’s Special Ed class. The note said that the kids had had much fun making the cookies but warned that they were “completely hygiene-free.”

Many people have cautioned bloggers to read before you link. My advice is to read before you eat.

2003-08-27T11:38:00.000-04:00

One Year Ago

Here at PLA, we recently celebrated our first birthday. My first post at PLA was an essay on the Bush administration entitled Tactical Hubris. I posted Tactical Hubris before I knew how to create a hyperlink. The post is completely link free.

The thesis of the post was as follows:

A pattern may be perceived in the above. When faced with a decision, Bush decides on the outcome he desires, announces it as fact and hopes that his show of confidence will become a self-fulfilling prophecy.

My evidence for that thesis included Mr. Bush ignoring battleground states in the closing days of the 2000 campaign to campaign in states he was sure to lose in an effort to create a bandwagon effect, proclaiming himself President Elect long before the vote counts (or failure to count votes) supported the claim, the refusal to modify or scale back his agenda as a result of losing the popular vote, and his decision to get out in front of both our allies and the American people with regard to an invasion of Iraq.

I concluded that the use of hubris as a political tactic had worked for Mr. Bush in some instances and caused him no harm in others but that it was a strategy that could easily backfire with serious consequences.

Have the events of the last year supported or refuted the thesis?

2003-08-27T10:49:00.000-04:00

Prizes

The New York Times Magazine has an interesting article on one strategy to promote the development of commercial space flight.

Dr. Peter H. Diamandis wanted to be an astronaut since childhood. For a time, he tried to obtain the prerequisites to be chosen by NASA. He became a doctor, got a degree in engineering and became certified in aviation and scuba diving. Eventually, he despaired of being chosen by NASA and took a different route.

Dr. Diamandis established the X Prize. According to the X Prize web site:

The X PRIZE is a $10,000,000 prize to jumpstart the space tourism industry through competition between the most talented entrepreneurs and rocket experts in the world. The $10 Million cash prize will be awarded to the first team that:

Privately finances, builds & launches a spaceship, able to carry three people to 100 kilometers (62.5 miles)

Returns safely to Earth

Repeats the launch with the same ship within 2 weeks.

The X Prize is modeled after the $25,000 Orteig prize won by Charles Lindbergh in 1927 for crossing the Atlantic in the Spirit of St. Louis.

So far, more than 20 teams have entered the competition and rumor has it that such financial heavyweights as Jeff Bezos and Paul Allen are involved.

I wish each contestant well.

The idea of using prizes to promote technological or other advancements is interesting. It may be that there are other areas in which the offering of a prize to reward discovery and innovation would work well.

One candidate for use of prize incentives is in the area of pharmaceuticals. In our current system, the government rewards the development of new drugs by granting the developer patent rights. Patent rights give the developer a monopoly of the product for a limited period of time, thereby allowing the developer to recoup its development costs and a profit by having the government prohibit any competition.

By and large, that system has worked well for many drugs as the progress made on any number of fronts attests.

The patent system gives economic incentives to develop certain types of drugs but not others. The perfect drug, from the point of view of the drug company, is one that works to alleviate a medical condition suffered by many, many people and which requires continued use of the drug to maintain the benefits.

The number of sufferers of the conditions is a key element as it will in large measure determine the size of the market from which monopoly profits can be extracted. The drug company will also attain higher profits if the drug is effective against the symptoms but does not actually cure the condition. It is more profitable to develop a drug that works for a limited time so as to keep its customers dependent on purchasing the medication for the duration of the patent.

The patent system does not give a large incentive to develop drugs to cure rare conditions. Perhaps the government should consider using prizes instead of patents as a reward in such instances.

2003-08-25T22:20:00.000-04:00

Torrance Cantrell’s Death Ruled Homocide

The Milwaukee Journal Sentinel reports that the death of Torrance Cantrell was a homicide:

The death of an 8-year-old autistic boy during a weekend prayer service has been ruled a homicide by the Milwaukee County Medical Examiner's office.

According to the medical examiner, Terrance Cottrell Jr. suffocated to death by "mechanical asphyxia due to external chest compression."

Ray Hemphill, the church pastor's brother, is being held on suspicion of physical abuse of a child, a felony. Milwaukee Police Capt. Nan Hegerty said Monday that she does not expect anyone else to be arrested in the case.

Out of ignorance and misguided religious fervor, they squeezed the life out of a little boy whose only sin was that his brain worked differently.

I am sorry but I can not write any more about this right now.

2003-08-25T20:32:00.000-04:00

Seismic Change

Demosthenes points us to a Moderate Left post:

Before the war, the righty blogs had all the mojo. Reading Insty or Lileks or Mitch Berg's site was fun, because they were so damn giddy. They knew they had the momentum, they knew the big issue of the day favored them, and they were joyous…

Fast-forward six months, and look around. Kos is at the top of his game, Josh Marshall is witty as Hell, Pandagon has found his voice, Atrios rules, and...well, pretty much any lefty blog you stumble into is sweetness and light, while righty sites grumble about media coverage and why people don't see things like they do.

And I realize something:

We've got the mojo now.

I feel it too. So does the right, they just do not know it yet. A case in point is Town Hall columnist and culture warrior Maggie Gallagher.

Gallagher has the 2004 presidential election all figured out. According to her most recent column:

For anyone who looks, the outline of the 2004 presidential campaign is suddenly clear. There are three, and exactly three, issues that will dominate.

Gallagher believes that the only three issues that matter will be terrorism, the energy crisis and gay marriage. She also believes that the GOP has two of the three issues sewed up:

How will this play out politically? Every single one of the Democratic presidential candidates is already on record supporting gay civil unions, which the majority of Americans oppose. No Democrat looks remotely credible, at this point, as an alternative to President Bush on terrorism.

Which leaves the energy crisis, plus the economic mess that is generated when the generators fail. The Dems had better hope President Bush and the GOP Congress blow it big time.

Gallagher’s thesis strongly suggests that the seismic shift in the political landscape noted by Moderate Left is occurring. First, look at the entirety of her description of the “terrorism issue”:

The first, obviously, is terrorism. Not the war in Iraq (give it up, Dean). The continuous direct threat of bodily harm to Americans by an organized international enemy -- that is the issue. We are vulnerable, and we know it.

While I agree that the threat of terrorism will be a large issue, the elephant in the room is that a conservative like Gallagher thinks that the politics of the Iraq war have shifted so far that it will not be a major political plus for the President.

It was not long ago that our Republican friends were assuring us that the war was the one and only issue that mattered for 2004. The war, the argument went, placed the Democrats against the views of the American people and assured Mr. Bush’s reelection.

Now a conservative partisan like Maggie Gallagher does not think the war is even on the short list of important issues.

Her parenthetical comment of “give it up, Dean” is remarkable. That comment suggests that Gallagher thinks that Dean, not Bush, is the political aggressor on the war. Thus, the question is whether Dean and not Bush can make political hay from the war. It is difficult to overstate the political importance of that shift.

On the issue of terrorism, who will be on offense and who on defense? Gallagher says that “we are vulnerable, and we know it.” Whose job has it been to eliminate the vulnerabilities? Who failed to provide funding for the first responders? Who plays footsie with the country that spawns, funds and supports the terrorists?

The second indication of a seismic shift is that tax cuts are not on the list. In fact, no economic or fiscal issue is on Gallagher’s list. The reason for that is obvious.

Mr. Bush is on pace to be the first President since Herbert Hoover to preside over an economy that suffered net job losses. The President has also turned record surpluses into record deficits with little or no tangible economic benefit in return.

On economic issues, the Democratic nominee will be the political aggressor while Mr. Bush will again be playing defense. If the issue has any traction, it will be in favor of the Democrats. Given that economic issues are often quite salient, that is not good news for Mr. Bush.

Every sentient being knows that the Rove’s game plan was to run on the war and tax cuts. Maggie Gallagher is prepared to concede that the two most important GOP issues of six months ago will not be relevant to the 2004 election.

To paraphrase Buffalo Springfield, something’s happening here. What it is, is becoming clear. And it is very good news.

2003-08-25T07:57:00.000-04:00

Time For Some Good News

I have been writing far too much about bad things. It is depressing to write about an autistic boy who dies during a church service, budget deficits of half a trillion dollars per year for as far as the eye can see, or bloggers celebrating the U.N. compound being blown up. It is time for some good news.

The New York Times comes to my rescue with a report of some potentially very good news:

Biologists have found a class of chemicals that they hope will make people live longer by activating an ancient survival reflex. One chemical, a natural substance known as resveratrol, is found in red wines, particularly those made in cooler climates like that of New York State.

The finding could help explain the so-called French paradox — the fact that the French consume fatty foods considered threatening to the heart but live as long as anyone else…

The possible benefits could be significant. The chemicals are designed to mimic the effect of a very low-calorie diet, which is known to lengthen the life span of rodents. Scientists involved in the research say human life span could be extended by 30 percent if people respond to the chemicals the way rats and mice do to low calories. Even someone who started at age 50 to take one of the new chemicals could expect to gain an extra 10 years of life, said Dr. Leonard Guarente of the Massachusetts Institute of Technology, one of the pioneers of the new research.

A glass of a good Cabernet will do nicely, thank you.

2003-08-24T23:38:00.000-04:00

Torrance Cantrell – Rest In Peace

Torrance Cantrell died last Friday. The cause of death is not yet known as an autopsy is pending. I fear that he died as a result of the desparation of his mother and the ignorance, superstition, and twisted religion of the Faith Temple Apostolic Church of Milwaukee, Wisconsin.

Torrance Cantrell was autistic. He was eight years old. He died as members of the Faith Temple Apostolic Church were performing a church services that had been described as an “exorcism” to rid him of “evil spiritedness” that church members thought caused his autism.

The Milwaukee Journal Sentinel reports a neighbor’s description of Torrance:

Denise Allison, 25, said she had become close friends with the boy and his mother, Patricia Cooper, during two years living in the duplex above the family in the 5900 block of N. 61st St.

Allison said Torrance, called "Junior" by family and friends, was brilliant with his hands, and could craft complex kites from newspaper. Though hardly able to speak, Torrance would knock on her door and shout with a smile, "Tickle," asking Allison to play with and tickle him.

The boy often initiated play or communication by punching at people and laughing, though neighborhood kids had learned to not feel threatened, Allison said.

"He was really fun to be around, but you had to relax, get to know him and understand his ways," Allison said. "He just wanted love and attention like any other kid."

Pat Cooper, Torrance’s mother, was having trouble controlling her son one day when she was approached by members of the Faith Temple Apostolic Church. The church members told Ms. Cooper that Torrance’s autism could be “spiritually healed.”

The Faith Temple Apostolic Church is located in a strip mall storefront next to a pizza place and a dry cleaner. It is not affiliated with any larger denomination. Only six families are members of the church.

In 1998, the church was investigated after a 12 year old girl suffered cuts and bruises from being beaten with a stick during a church service. No charges were filed in that incident.

Pat Cooper began to take Torrance to the Faith Temple Apostolic Church. Church members also held "services" in Torrances home.

According to the church members, at the services they “prayed for God to release the evil spirits that cause the boy's illness.”

Bishop David Hemphill, the leader of the church said that:

The boy just had a problem in his mind, and what we were doing was asking God to fix it… We believe that according to the word of God, a person could get evil spiritedness. Either God's going to have to deliver, or we're going to have to do whatever we can until things get better.

Denise Allison, the neighbor and friend of Pat Cooper and Torrance Cantrell, tells a very different story:

Allison said Cooper told her that during prayer sessions - both at home and at church - church members would forcibly hold down Torrance and strike him in attempts to heal him of his autism.

In addition, Allison told the Milwaukee newspaper that the mother called the services and “exorcism.” She also is quoted as follows:

She said they held him down for almost two hours. He couldn't hardly breathe, and that shocked (Cooper). Then she said the devil started to speak through Junior's voice - though he can't really speak - saying, 'Kill me. Take me.' "

Allison began to notice that each time the group gathered in the apartment, Torrance would screech, wail and cry. She and other neighbors noticed Torrance had a fattened lip and black eye the days after at-home prayer sessions, she said.

Once, Allison said, she looked through her friend's window and saw church members taking turns striking the boy with a belt as Cooper watched.

"I told Pat that it was wrong, but she said the Bible told her you're supposed to chastise your children," Allison said. "I told her to stop, told her what could a little . . . kid ever do that was so wrong to beat him like that? She said the church told her it was the only way to heal him."

Last Friday, Torrance was taken to church for a “service”. Four church members were present. Ray Hemphill, brother of the Bishop of the church and also a minister, Pat Cooper and two female members of the church.

According to church members who arrived after the service:

Pamela Hemphill said Ray Hemphill led the service and directed the women to restrain the boy.

The women put some sheets and cloth over the boy's outstretched hands, and "one lady held one hand and the other lady held the other, and his mother held his feet," Pamela Hemphill said.

The boy's leather sneakers were removed so he wouldn't hurt anyone if he kicked, she added…

Pamela Hemphill said the sessions would usually last about two hours with a break halfway.

"Sometimes he kicks and scratches and throws himself to the ground," she said. "They hold his hand or maybe his feet and maybe take his shoes off."

But at Friday's session, she said, the boy was "unusually quiet."

"He seemed to be extremely tired," she said. "He just wiggled and moved a little but not as much as usual."

She said the boy was sitting on the floor with others sitting around him. But at one point he lay down and closed his eyes, she said.

"After they got through praying, one of the ladies said, 'He doesn't look too good today,' " David Hemphill said.

Ray Hemphill checked the boy's pulse and found none, she said. Paramedics arrived but couldn't revive the boy, she said, and pronounced him dead.

The police have arrested Ray Hemphill on charges of suspicion of physical abuse of a child, a felony. The police have asked that the results of the autopsy not be released. The Milwaukee Police said that Torrance “did not die of natural causes” and are still investigating. They also noted that they had no evidence that the boy was struck during the service.

Let me make clear that I do not know what happened to Torrance Cantrell. I do not know whether he was beaten at the Friday night church service. I do not know if the neighbor’s claim of prior abuse and beating at home services is true.

Despite that lack of information, there are a few comments I wish to make on the story.

The parents of autistic children are among the most desperate people I have ever encountered. The joy and expectations that accompany the birth of a child change to worry and work. Parents of autistics are told that science and medicine provide little hope.

I remember well when shortly after Bobby’s diagnosis, I obtained access to an online medical database and began to research autism. The phrases “no known cause” and “no approved medical treatments” struck deep into my heart.

The five stages of grief are said to be denial, anger, bargaining, depression and acceptance. It is difficult to travel the road towards acceptance without hope. When science and medicine provide no hope, people will look elsewhere. There are many charlatans peddling “miracle cures” to the autism community. Most of those miracle cures do no harm but also no good. All that is lost is time and money.

I fear that Ms. Cooper looked to a misguided version of faith to sustain her hope. I fear that the price she paid can not be measured in time or money.

As for the members of the Faith Temple Apostolic Church, much depends on their state of mind. Autistic kids are often the victim of cruelty at the hands of other kids. The lack of social skills and the poor communication skills make them perfect foils and victims of the cruelty of other children. We expect more of adults.

If Torrance Cantrell died as the result of intentional cruelty on the part of the members of the Faith Temple Apostolic Church (and I very much doubt that is the case), them they richly deserve whatever fate awaits them both at the hands of justice system and upon the judgment of God.

I suspect, however, that the church members sincerely believed that Torrance was inhabited by evil spirits and that the Bible commanded the methods used to drive those spirits out. That belief is no justification for harming a little boy.

Torrance Cantrell died in Milwaukee in 2003 not in the Salem of 1692. Autism is a neurological condition. It results from a defect in the functioning of the brain, not the soul. There is really no excuse for a group of adults to restrain a child and then take turns beating and whipping him. Only a seriously twisted view of God can possibly begin to justify such actions.

I once had a fundamentalist Christian friend and co-worker tell me that Bobby’s autism was God’s way of drawing me closer to Him. I was repulsed by that idea. I would want no relationship with such a God. Any God who would sanction the beating and whipping of a little boy is not worthy of worship.

If Torrance Cantrell died as a result of misguided religious fervor of the church members then they will be judged by man and God. If they caused his death as a result of a twisted view of religion and sincerely believed that they were doing what the Bible required, then perhaps God will take mercy on their souls.

In the meantime, however, regardless of any religious belief, the beating and whipping of a little boy is not acceptable behavior in our society. If Torrance Cantrell died at the hands of the church members, they should be prosecuted to the fullest extent of the law. God may take mercy on their soul but I want their butts in jail.

Yesterday, I wrote about an autistic child being denied a boat trip on a lake because of the insensitivity of a boat captain. That story made me angry. The story above simply makes me want to cry.

That reaction is perhaps caused by the description of Torrance Cantrell. Like my son Bobby, Torrance was eight years old. Like Bobby, he could barely speak. Like Bobby, he liked to be tickled. Like Bobby, he was sometimes out of control. Like Bobby, he deserved a better fate.

Torrance Cantrell, may you rest in peace.

Update:

The leader of the church is confident that church members did nothing wrong. The Journal Sentinel reports as follows:

Members of a small church where an 8-year-old autistic boy died during a prayer session gathered Sunday at the home of their pastor, who said he was confident no church members or staff would be charged in the case.

"Didn't do nothing wrong," David Hemphill said outside his home Sunday afternoon, with the sounds of yelling and moaning from his gathered flock plainly audible from his front steps. "We did what the Book of Matthew said, Chapter 12. All we did is ask God to deliver him." …

He also said the child's death would not change the way the church operates, saying: "How you going to change the Bible?"

The boy had a spirit in him, the pastor said. Asked how he knew that, he said: "I'm 62 years old, and I can tell a person that's not normal."

When asked whether the spirit could simply be the boy's autism, Hemphill said: "He had a lot of problems."

2003-08-24T13:30:00.000-04:00

The Absence of Shame

Atrios points us to this Washington Post story. According to the Post, the CBO will soon release a budget deficit forecast for next year of around $500,000,000,000.00. That’s right, Mr. Bush proposes to spend half a trillion dollars that the government does not have next year.

Private sector economists report that the deficit will continue to remain at about half a trillion dollars per year for the foreseeable future:

Absent any serious change in policy, private sector economists say deficits will remain in that range through the decade, then escalate sharply with the retirement of the baby-boom generation.

To stave off the looming fiscal disaster, Mr. Bush proposes to continue to increase spending and further cut taxes.

Meanwhile Mary at the indispensable Pacific Views provides a link to President Bush’s recent speech in Oregon. In that speech Mr. Bush said:

See, I ran for office to solve problems, not to pass them on to future presidents and future generations.

It has become apparent that Mr. Bush lacks the capacity for shame.

2003-08-23T22:42:00.000-04:00

A Cruise On The Lake

I have written before about the difficulties encountered when taking autistic children into public places. It is hard in the best of circumstances. Without careful planning and a modicum of cooperation from others, it becomes impossible,

Outings to public places are rare and precious for families with autistic children. They permit a semblance of a normal family life and provide crucial training for the autistic child.

One of the situations many parents of autistics (POAs) avoid is standing in line. Waiting his turn is not Bobby’s strong suit in any event, and waiting for a long period in a strange place filled with unfamiliar people, sights, sounds and odors is a recipe for disaster.

Success breeds success and failure breeds failure. When taking an autistic child to a new place, it is best to plan the trip carefully. If standing in line is a possibility at the proposed destination, it is best to call ahead and speak with the management.

Management should be informed that the family includes an autistic child. It should be made very clear that the child is not able to wait in line for extended periods. Management should be asked about the wait times. Typically, the answer will be an “average” wait. My rule is to assume that the actual wait will be double whatever management admits.

I suggest asking about what surrounds the waiting area. If the autistic child can be taken for a walk or to a playground or other area while the rest of the family stands in line, a long wait can be broken up into a couple of short waits. It is a good idea to ask if there is a quiet place that management will permit you to use as an alternative waiting room.

Once the trip is planned, the autistic child should be carefully prepared. The autistic child should be repeatedly told where he is going and what he will be doing. Some POAs have had success by giving the child a picture of the destination so that it will not be completely unfamiliar upon arrival. Do not forget to bring a familar, conforting and beloved toy, game or CD.

Finnaly, it is advisable to have a backup plan if the destination is just not working. Even with that level of preparation, a pleasant experience is not always possible.

Given the effort required and the importance we place on successful outings, stories like this (scroll to local news) make me crazy.

Aaran Stewart is an 11 year old autistic boy living in Rutland, UK. Rutland is located near the Rutland Water. The Rutland Water is the largest man made lake in Western Europe. It is particularly noted for bird watching and other leisure activities.

One of the attractions at Rutland Water is a tour of the lake on the Rutland Belle. The Rutland Belle is a cruise ship capable of carrying 110 passengers. If, after reading this story, you have any comment you would like to make to the Rutland Belle, they may be contacted at the email and phone number listed on this page.

Aaran Stewart’s mom, Mandy, wanted to take Aaran cruising on the Rutland Belle. Being a POA, instead of just showing up, she called two weeks before the planned trip.

As the news report states:

Two weeks previously, Mrs Stewart had phoned to pre-book tickets, explaining that Aaran was autistic and found queuing difficult. She was told to arrive at 12.30pm to board at 12.45pm… Mrs. Stewart explained that “the worst possible situation would be for us to arrive and not be allowed” to board.

Apparently Mrs. Stewart received appropriate assurances and she booked the tickets. She then began to prepare Aaron for the trip, giving him a brochure of the Rutland Belle. The night before the trip, Aaran fell asleep holding the brochure.

On the day of the trip, Mandy and Aaran arrived at the Rutland Belle at 12:30 as instructed. The 12:45 boarding time came and went with Aaran and his mother still waiting in line. Around 12:50 someone came to remove the ropes barring entry. That made it seem like boarding was about to begin but they were still not allowed on the boat.

By 1:05, Aaran, frustrated at not being allowed to board, had begun to cry. While I suspect that Aaran had a full blown autistic tantrum, his mother describes it as “Aaran began getting grizzly and crying, just like a five-year-old would... all Aaran had done was cry.”

The ship Captain then appeared and refused to allow Aaran and his mother to board.

Mrs Stewart described how she had begged the Rutland Belle captain to let her prove that Aaran would be happy once he was allowed on board. "Aaran was only distressed because they were making us wait. I asked the captain to give us a chance to get on and Aaran would be fine. The captain kept saying that he had made his decision - I believe the decision was taken before we even arrived." … "Anyone would think I had a raging monster who was going to attack everyone on board. He just wanted to get on the boat. I feel we were totally discriminated against and I hope they are ashamed.

The captain would not relent and Aaron and his mother were turned away.

Mrs. Stewart noted that:

The following day, we went on a boat in Newark and nobody even knew we were there. We went straight on instead of being made to queue like school children and Aaran had a lovely time.

Mrs. Stewart did everything right. She called ahead and explained the situation. She told the Rutland Belle that Aaran was autistic and could not stand in line. She prepared Aaran for the trip. She arrived on time. She explained to the Captain that if he permitted Aaran onto the boat, everything would be fine. Despite that effort, the outing was ruined.

Outings with autistic kids are hard. When other people, such as the Captain of the Rutland Belle, are insensitive, ignorant jerks it becomes impossible.

I am not a person quick to anger but the story of Aaran Stewart being turned away from the cruise makes me seethe.

2003-08-23T14:38:00.000-04:00

Political Integrity

I read a story today that reminded me that some politicians have integrity. That story involves the use of the computerized, paperless voting machines in Georgia.

After the 2000 election, Georgia decided to purchase and install new voting machines. The choice of the new system fell to Georgia’s Secretary of State, Cathy Cox. She chose the Diebold system.

Much has been written on potential problems with the Diebold system. Its source code is proprietary which makes the system a non-transparent “black box.” The Diebold system is completely computerized with no paper ballots. It leaves no audit trail. Some have argued that it is possible to hack the system and that the integrity of the vote tabulations is open to question.

I share those concerns. I think that a transparent voting system with a paper audit trail is a minimum requirement to ensure fair elections. The results of the 2002 elections, the first in Georgia using the Diebold system, have also raised concerns in some minds.

Via Electrolite, I learned that Bartcop had listed two Georgia races on his "Was it Magic?” page:

****Poll by Atlanta Journal Constitution/WSB-TV of 800 likely voters on Nov. 1
For Georgia Governor
Roy Barnes (D) 51% up 11
Sonny Perdue (R) 40%

** "Official Results" from the 'Diebold Electronic Voting Machines' on Nov. 5
Roy Barnes (D) 46%
Sonny Perdue (R) 51% up 5 - that's a 16-point pro-Bush swing - was it magic?
----------------------------------

****Poll by Atlanta Journal Constitution Nov. 1 for Georgia Senate

Max Cleland (D) 49% up 5
Saxby Chambliss (R) 44%

**"Official Results" from the 'Diebold Electronic Voting Machines'
Max Cleland (D) 46%
Saxby Chambliss 53% up 7 - that's a 13-point pro-Bush swing - was it magic?

Cathy Cox does not believe that the 2002 election results are the result of anything but voter preference. She believes that the Diebold system is safe and accurate. If it is ever proven that the system has been hacked or could be hacked, Ms. Cox will take a huge political hit. Her political future is tied to the wisdom of her selection of the Diebold system.

The choice of the Diebold electronic voting system has come under increasing fire. In response to that criticism, Secretary Cox is conducting a series of seminars around the state. At the first such seminar, held at Kennesaw State University, Secretary Cox demonstrated that she is willing to risk her political future in the interests of protecting the integrity of the election process in Georgia.

Today’s Atlanta Journal Constitution, in an article by Jim Galloway, reports the following:

In the end, Friday's two-hour discussion of whether computers should be the sole tabulators of Georgia voters' ballots came down to a challenge.

Roxanne Jekot, a 51-year-old computer program developer from Cumming, said she and a few expert friends could crack Georgia's $54 million touch-screen voting system in a matter of minutes.

Bring it on, said state election officials.

"If something can beat the machine, we need to know that," said Brit Williams, a retired Kennesaw State University professor who helped design the state's touch-screen security system. He put the odds of corrupting the software undetected at 1 billion to one.

The dare was made and accepted at the first of a series of seminars at Kennesaw State sponsored by Secretary of State Cathy Cox to defuse questions about the vulnerability of the statewide system she installed last year.

Jekot said she could be ready as soon as next week. She said all she wants to do is point out weaknesses so that they can be fixed -- and declares she can put an unauthorized vote anywhere she wants.

Election officials promised to provide a voting machine, and a computer server into which votes from the machine are fed.

There was no political upside for Cathy Cox in accepting the challenge. If Jekot successfully hacks the computer system, it will prove that the system is vulnerable and Cathy Cox will look like a fool for choosing the Diebold system. Her political career will take a substantial hit.

If Jekot fails to hack the system, it will only prove that Jekot lacks the skills to do so and will prove nothing about whether a person with greater skills could do so.

Apparently, Cathy Cox accepted the dare out of a genuine concern for the integrity of the electoral process in Georgia and was unconcerned about any political damage that may befall her.

Whether or not it is shown that the Diebold system is safe from tampering, Cathy Cox has political integrity.

2003-08-23T10:36:00.000-04:00

A False Impression

On August 7, Al Gore gave a speech in New York. In that speech, the former Vice President argued that the public held certain false impressions in the run up to the war in Iraq. In particular, Mr. Gore asserted that among the false impressions held by the public were the following:

(1) Saddam Hussein was partly responsible for the attack against us on September 11th, 2001, so a good way to respond to that attack would be to invade his country and forcibly remove him from power. …

(3) Saddam was about to give the terrorists poison gas and deadly germs that he had made into weapons which they could use to kill millions of Americans. Therefore common sense alone dictated that we should send our military into Iraq in order to protect our loved ones and ourselves against a grave threat.

(4) Saddam was on the verge of building nuclear bombs and giving them to the terrorists. And since the only thing preventing Saddam from acquiring a nuclear arsenal was access to enriched uranium, once our spies found out that he had bought the enrichment technology he needed and was actively trying to buy uranium from Africa, we had very little time left. Therefore it seemed imperative during last Fall's election campaign to set aside less urgent issues like the economy and instead focus on the congressional resolution approving war against Iraq.

In some quarters, Mr. Gore was excoriated for suggesting that the public had false impressions about Iraq’s activities and capabilities. For instance the Washington Post editorialized:

Thus, Mr. Gore maintains, we were all under the "false impression" that Saddam Hussein was "on the verge of building nuclear bombs," that he was "about to give the terrorists poison gas and deadly germs," that he was partly responsible for the 9/11 attacks. And because of these "false impressions," the nation didn't conduct a proper debate about the war. But there was extensive debate going back many years; last fall and winter the nation debated little else. Mr. Bush took his case to the United Nations. Congress argued about and approved a resolution authorizing war. And the approval did not come, as Mr. Gore and other Democrats now maintain, because people were deceived into believing that Saddam Hussein was an "imminent" threat who had attacked the World Trade Center or was about to do so.

Was Mr. Gore correct when he suggested that the American people were under the impression that Iraq was connected to the 9/11 attacks and that Iraq threatened America with WMD including nuclear weapons?

While looking for something else, I ran across a blog entry that suggests that Mr. Gore may have been correct in his assessment.

In his October 13, 2002 Daily Dish, Andrew Sullivan wrote that “More interestingly, the polls show that Americans get the president's arguments about Iraq in a post-9/11 world.” He then linked to an ABC News story (now off line) about a Pew Center poll and quoted the story as follows:

86 percent of those surveyed believed Saddam had nuclear weapons or was close to acquiring them, and 66 percent believed he was involved in the Sept. 11 attacks on the United States. Bush cites the attacks as demonstrating the need to act against Saddam, and has linked his campaign against Iraq to the "war on terrorism" he launched last fall … Bush has also warned that Iraq could build a nuclear weapon within a year if it can get enriched uranium. "Clearly, the president's major arguments in favor of taking military action against Iraq are resonating with the public," the Pew center said in its report on the poll.

Perhaps the Post owes Mr. Gore an apology.

2003-08-20T22:46:00.000-04:00

Better Evidence

Riffing off one of my tort reform posts, the Angry Bear has an excellent post analogizing part of the tort reform debate to scientific hypothesis testing:

There are two categories of errors in scientific hypothesis testing: a false negative (rejecting a true hypothesis), and a false positive (failing to reject a false hypothesis). These are called, respectively, Type I and Type II errors (there's a third, more widely committed error, the "Type III error", which is forgetting which error is Type I and which is Type II).

Limiting the scope of pursuable lawsuits will undoubtedly decrease the number of false positives (less unmeritorious lawsuits will be won), but it will come at the expense of more false negatives (lawsuits that should be filed and won because the claims are valid will not be filed and won). As statisticians well know, there's generally a tradeoff: as the odds of a false negative decrease (the "significance level" of the test increases), the odds of a false positive (the "â" of the test; 1-â is the "power" of a test) increase, and vice-versa.

Assuming sound statistical techniques are being employed, the only way to simultaneously decrease the probability of both types of errors is to add more observations.

The last point is an important one. It is possible to reduce the chances of non-meritorious suits being successful and the chances that meritorious suits will be unsuccessful if the legal equivalent of more observations can be obtained.

In the legal context, “more observations” means better evidence. If we can increase the reliability and availability of evidence, the result will be a more accurate and just court system.

The rise of DNA matching is a prime example of that phenomenon. In crimes in which the perpetrator leaves behind a DNA sample and in which the identity of the perpetrator is an important issue, the chance that an innocent person will be convicted and the chance that a guilty man will go free are both greatly reduced. The chance of error will be reduced but not eliminated as the O.J case and the reluctance of prosecutors to reopen cases in which DNA has exonerated prisoners attests.

There are a number of areas in which AB’s insight could be put to good use to improve both the criminal and civil justice systems. A Slate Explainer discusses the “black boxes” now in some cars. The “black boxes,” also known as event data recorders, typically record and hold data for the five seconds immediately prior to any collision in which the air bags deploy. The black boxes record and store such information as speed, RPM, gas petal position, whether or not the brake was depressed and other data.

Slate notes that such devices are now in some GM, Ford and Isuzu models. As event data recorders become more popular, it will become routine to use the data as evidence in court. The existence of such evidence can only improve the accuracy of both the civil and criminal justice systems.

Similarly, a policy of requiring all in-custody interrogations to be videotaped would eliminate a lot of uncertainty in determining whether a confession was voluntary.

Third, the presence of dash mounted video cameras activated at traffic stops would give the jury a good look at drivers alleged to be drunk and would go a long way to prove or disprove many police abuse cases.

There are undoubtedly many, many other ways to improve the reliability and availability of evidence in both civil and criminal litigation. Those improvements reduce both Type I and Type II errors (only education can eliminate Type III errors). The only people who lose from improvements in the accuracy of judicial decisions are those who deserve to lose.

The political battles over our court system too often sheds far more heat than light. Underlying much of the debate over tort reform and criminal justice reform is the mistaken notion that the results of trials are random.

Efforts to improve the reliability and availability of evidence to all litigants will not only restore a measure of the public’s confidence in the justice system, it will also improve the quality of justice administered by the courts. Those are goals that can be shared by all honest participants in the debate.

2003-08-19T22:35:00.000-04:00

A Sheltered Cove

I reside in a peaceful little cove on the wide sea of blogtopia (ysctp). In my sheltered bay, arguments over policy and politics are more or less polite, respectful and intelligent. I rarely find myself places in which vitriol replaces reason or hatred replaces logic.

I read a great number of sites both right and left. Many of the right-leaning bloggers I find to be interesting, funny, decent, entertaining, informative, thought provoking, principled and smart.

Today, Atrios did me no favor by pointing me away from my safe little cove and to one of the less hospitable ports.

The New York Times reports on the truck bomb that killed at least 17 persons in the U.N. facility in Baghdad:

A suicide bomber detonated a truck full of explosives at the United Nations compound here today, killing at least 17 people, including the top United Nations representative in Iraq, and injuring at least 100, in a direct attack on one of the principal agencies in charge of rebuilding Iraq.

The bomb demolished the three-story converted hotel, filled with United Nations workers, scattering the wounded and their remains across a wide swathe. United Nations personnel, many of them recently flown in from Europe and the United States, crawled and ran from the wreckage, their clothes torn and splattered with blood.

Mr. Bush made appropriate remarks:

President Bush, speaking in Crawford, Tex., condemned the bombing as the work of "enemies of the civilized world." He said: "The terrorists who struck today have again shown their contempt for the innocent. They showed their fear of progress and their hatred of peace."

The twisted proprietor of the less hospitable port reacted by saying:

I heard this on the news this morning and had almost popped the cork off of a bottle of sparkly when I heard that it was the U.N. HQ in Baghdad.

Oh well, it's a start, I suppose.

A reader of the twisted blogger commented:

Quite so. Perhaps the general assembly could be next. Not that I like bombs going off in my city, but it might almost be worth it to be able to scrape Dominique de Villepan's tattered remains off the curb.

Over at a different twisted site, one comment bemoaned the absence of Kofi Annan from the bombed building writing that it was a “Damn shame that Kofi wasn't visiting at the time.”

A second comment echoed the theme:

The UN compound bombing in Iraq is indeed very unfortunate. It is obvious that someone took a wrong turn in Yonkers and blew up the wrong U.N. building.

There was much, much more of the same at both sites particularly in comments.

I am going to return to my little cove soon but first, I need a shower.

2003-08-19T19:18:00.000-04:00

Model Airplane Crosses the Atlantic

About five years ago a group of people involved with the TAM project decided to fly a model airplane across the Atlantic Ocean. On August 12, a small red model airplane emerged from the sky and landed in Ireland. A diary of the trip is here.

Photographs of the model airplane and a number of the people involved in the project are here.

The flight was more than 1800 miles and took around 39 hours. It was launched from Newfoundland and landed within 35 feet of its intended target in Ireland.

The model plane is 72 inches wide, 71 inches long and weighs less than 11 pounds including fuel. The plane is made mostly of balsa wood and mylar film and is powered by Coleman stove/lantern fuel.

The flight of a model airplane across the Atlantic Ocean is a formidable achievement. Congratulations to Maynard Hill, the leader of the project, and to all who worked on the project.

2003-08-18T17:58:00.000-04:00

Speeding For Autism

New Jersey Governor James E. McGreevey recently signed a measure that will provide about $3,200,000 of additional funding for autism research.

As you may expect, I wholeheartedly approve of increased funding of autism research. To fund the increase, New Jersey added one dollar to all traffic fines and court penalties.

New Jersey has previously increased traffic fines by $1 with the increases earmarked to fund body armor for police and research into spinal injuries.

Now, I should begin by saying that I thoroughly approve of providing body armor to cops as well as autism and spinal cord research.

I also support having New Jersey set the fines for traffic violations at any (reasonable) figure it chooses.

Finally, I do not oppose having the government raise money by taxing voluntary and socially destructive behaviors such as speeding or reckless driving.

What I do find unseemly is the direct link between the violation of the law and the good causes supported by the increased fines.

Funding good causes by increasing the fines for traffic violations could encourage police officers to find traffic violations where none exists. It might also provide a rationalization for those who wish to break the law. It gives perverse incentives to those of us who would like to see all police officers have body armor. An advertising campaign of “run a red light, our cops need vests” encourages behavior we want to discourage.

New Jersey should simply impose taxes to fund the level of government it chooses to have. Traffic fines should not be set by the amount New Jersey wishes to spend on autism research. Those fines should be set by considering what constitutes fair punishment for the gravity of the offense and by considering the level of punishment necessary to deter the proscribed conduct.

I think that linking traffic fines to specific good uses of the money is a bad idea. New Jersey, however, chose not to ask my opinion before enacting the new law.

Given that, the next time you are driving through the Garden State, please remember to “Speed for Autism.”

2003-08-15T13:53:00.000-04:00

How to Deal with Frivolous Suits

In the course of a Slate article on suits against the fast food industry, Dahlia Lithwick wrote:

Even frivolous lawsuits deserve their day in court. That's why we have judges: to throw them out

Eugene Volokh takes exception to that line:

I don't get this. Frivolous lawsuits let plaintiffs inflict huge litigation costs on innocent defendants. Their existence increases legal risk, until they're definitively thrown out, and tends to, on the margin, discourage investment in the industry. This problem is exacerbated by the fact that even if nearly all such lawsuits are rejected, one or two lawsuits (perhaps before unusually plaintiff-friendly judges and juries) may yield massive punitive damages awards. A few juries may thus end up essentially making food policy for the whole nation.

No one "deserve[s]" the right to force people into ligitation on an unsound legal theory. If the theory is indeed unsound, then it's perfectly proper for the legislature to prevent the cost and risk of the litigation in the first place, rather than waiting until tens of millions of dollars are spent in various lawsuits.

Both Lithwick and Volokh have points. Volokh treats the issue of whether a not a suit is frivolous as self evident. That is not the case. Only when a suit is tested by the adversarial process of litigation can it be determined if there is merit. Thus, Lithwick’s position that even frivolous suits “deserve their day in court” is surely true. Every litigant should be given the opportunity to prove that their suit has merit.

Volokh’s argument that the filing of frivolous suits (and, of course, the assertion of frivolous defenses to meritorious suits) imposes costs, including attorney fees, litigation expense and, occasionally other damages, on the other side is also surely correct.

A policy to deter frivolous litigation needs a mechanism to identify which suits are frivolous and a mechanism to shift the costs incurred in the process of opposing frivolous suits and defenses onto the party and/or lawyer who has asserted the frivolous position.

To separate the frivolous from the suits that have merit, we first need a definition of frivolous.

Georgia law imposes abusive litigation sanctions on a party and/or the lawyer for a party, when he or she has:

Asserted a claim, defense, or other position with respect to which there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted claim, defense, or other position.

That is a fairly reasonable definition of frivolous. Except in certain circumstances identified below, a suit filed (or a defense asserted) that presents no “justiicable issue of law or fact” and which it is unreasonable to believe that a court would accept the position can fairly be termed “frivolous.”

That statutory scheme does not go as far as “loser pays.” Every suit that is not settled has a loser. Not every losing case is frivolous. Sometimes a jury just has to decide who to believe. Sometimes, the law is unsettled. Sometimes the precise fact pattern presented by a case has never been ruled upon in that particular jurisdiction.

Recently I litigated the issue of the measure of damages due to a co-tenant for minerals removed and sold from the common property. I argued that the measure of damages should be the value of the minerals once extracted less the lost of extraction. The mining company argued that a reasonable royalty rate was the better measure.

The two measures resulted in vastly different recoveries. Georgia law had never ruled on the issue. Other jurisdictions were split on the issue. One side or the other had to lose. Neither side was frivolous.

Georgia law makes it mandatory, upon motion of the aggrieved party or on the court’s own motion, for a judge to impose sanctions when the definition quoted above is met. The sanction to be imposed is an award of all attorney’s fees and litigation expenses incurred in opposing the frivolous position.

The Georgia scheme gives each litigant “a day in court” as Lithwick suggests is appropriate while also shifting the litigation costs Volokh notes to the party causing those costs to be incurred.

There are a number of possible objections to the Georgia scheme. First, it should be noted that the law is never stagnant. It changes over time as new situations occur and societal standards evolve. At one time, the filing of desegregation suits in the South might have fallen into the category of being without a reasonable belief that the position would be accepted. I hope that we do not want a frivolous litigation scheme that would have prevented such suits.

Fortunately, Georgia law recognizes that the law is ever changing:

No attorney or party shall be assessed attorney's fees as to any claim or defense which the court determines was asserted by said attorney or party in a good faith attempt to establish a new theory of law in Georgia if such new theory of law is based on some recognized precedential or persuasive authority.

If a suit or a defense is asserted in a good faith effort to establish or extend a new legal theory, it is not usually very difficult to find an opinion from another jurisdiction, a dissent or a law review article supporting the new theory. If no such authority can be found, perhaps the theory just is frivolous and deserves sanction.

A second objection to the Georgia statute discussed above is that the sanction is limited to an award of attorney’s fees and litigation costs. What if the filing of a frivolous claim causes other damages?

For instance, assume that you are trying to sell a house. You find a buyer, agree on a price and prepare for closing. You are confident that you will close because the buyer already has locked in financing at a certain rate.

A third party files a frivolous suit to stop the sale claiming that he or she actually owns your house. That claim has no legal or factual basis. You hire a lawyer and proceed to prove that you own the house and that the suit was frivolous.

The court agrees and awards you the amounts you have spent on lawyers and litigation. After you win, you try to sell the house to the same buyer.

During the litigation, the buyer’s lock expired, rates moved up and the buyer can not longer afford the payments at the old price. The buyer agrees to take out a new loan at a higher rate to buy the house but requires a reduction in the price in order to be able to afford the payments. You agree to the lower price.

You have been damaged over and above the attorney’s fees and litigation expenses you have incurred. Georgia law addresses that problem as well. A separate statute ( OCGA §51-7-80 et seq.) creates a cause of action that permits you to file an independent suit against the party and/or attorney asserting the frivolous claim to recover any such additional damages.

A few years ago I taught the procedure for sanctioning abusive and frivolous litigation to a group of about 200 Georgia trial court judges. Those judges, almost to a person, thought that they could easily identify suits, defenses and positions that were frivolous. Those judges are very busy and have long dockets. They do not need their dockets cluttered by frivolous suits. They were looking for a way to deter the filing of frivolous suits and defenses.

In my experience, the Georgia procedure works well and has worked well for over a decade. It allows access to the courts for any person who feels aggrieved. It deters much frivolous litigation by the threat of sanction. For frivolous suits that are not deterred, it shifts the costs to the party causing those costs to be incurred. It may not be a perfect solution but it works pretty well.

Many tort reform proposals, such as the President’s proposed cap on non-economic damages in medical malpractice cases, are sold as a way to prevent frivolous suits. The reality is that such proposals are not designed to deter frivolous suits but, rather, to reduce the damages defendants must pay on meritorious claims.

If we are serious about deterring frivolous suits, it is possible to do so. Legislation modeled after the Georgia scheme is a good place to start.

2003-08-14T09:44:00.000-04:00

Spinning Madly In The Wrong Direction

I am amused by the spin coming from both sides of the political spectrum on the question of whether or not the recession began on Mr. Bush’s watch.

My amusement stems from three factors. The first is that although there is a political dispute over whether or not the nation was in recession when Mr. Bush took office, there appears to be no factual dispute over that issue at all. Secondly, the political dispute is ridiculous as the precise timing of when the recession began is of no importance whatsoever. Finally, I am amused by the fact that both sides appear to be spinning against their own interests.

The facts are clear. The authoritative body charged with calling beginnings and ends of recessions is the National Bureau of Economic Research. In July, the NBER called the end of the recession:

The Business Cycle Dating Committee of the National Bureau of Economic Research met yesterday. At its meeting, the committee determined that a trough in business activity occurred in the U.S. economy in November 2001. The trough marks the end of the recession that began in March 2001 and the beginning of an expansion. The recession lasted 8 months, which is slightly less than average for recessions since World War II.

I have seen no one question the authority of the NBER to make the call nor anyone challenge the beginning date of the recession. There seems to be a mostly academic debate over whether in calling the end of the recession, the NBER should have given greater weight to employment or growth (see for instance this post by Brad Delong) but both the authority of the NBER and the date on which the recession began appear to be unchallenged.

Thus, by weight of authority, the recession lasted from March of 2001 until November of 2001. The recession began when Mr. Bush had been in office about 2 months or less.

Why that fact is important escapes me. Surely no one can seriously argue that Mr. Bush’s policies resulted in a recession beginning two months after the inauguration. Mr. Bush’s signature piece of economic legislation had not been passed. Mr. Bush and his economic team were probably still trying to figure out the phone system at the time the recession began.

Would any serious person be prepared to argue that Mr. Bush is either more or less responsible for the state of the economy today (or more importantly in November of 2004) if the recession had started in December of 2000?

Nonetheless, each party seems intent on convincing the public that the recession started on the other party’s watch.

Spinsanity has noted a number of instances in which Mr. Bush and the administration have tried to claim that the recession did not start on his watch.

In Santa Clara, Mr. Bush said:

So with the combination of the loss of revenue as a result of the recession -- which was official in January of 2001…

He repeated that spin in Nebraska (“ And then we went into a recession. That's three quarters of negative growth. From January of 2001, for the three quarters ending, starting January 2001, we were negative,”) in New Mexico (“In January of 2001, we were in a recession”) and in Indiana (“And then our nation went into a recession, starting January 1st of 2001”).

Ari Fleischer and Karl Rove made similar statements (see Spinsanity for the links).

That seems like a lot of spinning to give the impression that the economy was in recession when Mr. Bush took office, particularly when the fact that the economy went into recession two months after he took office is not prejudicial to Mr. Bush.

The Democrats are quick to call Mr. Bush on his spin. I think that it is appropriate to use Mr. Bush’s spin for the purpose of showing that he does not always stick to the truth. I have done that myself. The 2000 election demonstrated that a string of small, inconsequential inaccuracies can have a devastating effect.

Some of the criticism of Mr. Bush, however, seems to be making the point that the recession started on his watch, not Mr. Clinton’s, and that somehow makes him responsible for the downturn. That argument is ridiculous.

The most amusing part of the spin is that it is in each party’s interest to spin the other way. The Democrats should be arguing that the recession began earlier and it is in Mr. Bush’s interest to use the later start date.

The spin is all about politics, of course, and the issue is whether or not the Democrats can get any traction on the economy in the 2004 election. If the economy is humming along by Election Day, Mr. Bush is going to claim credit regardless of what the Democrats say or do.

If the economy is still sputtering in 2004, the issue will be how much blame Mr. Bush gets. The argument that Mr. Bush caused the recession simply will not get traction. As noted before, the recession started before Mr. Bush unpacked.

The argument the Democrats should make is that Mr. Bush failed to fix the problem. The more time Mr. Bush had to fix the problem, the more traction the Democrats will gain.

The Democratic line should be, “Mr. Bush wasted four full years and $2 trillion and the American people still can’t get jobs.”

The more time Mr. Bush had to turn the economy around, the better that argument will sound.

The converse is true for Mr. Bush. The later the recession started, the less time his policies have had to work. If the economy remains sluggish, Mr. Bush will argue that his prescription is right, but the medicine has not yet had time to work. That argument works better if it is made closer to the time the symptoms appeared.

I find watching both parties spin madly in the wrong direction to be rather amusing. Don't you?

2003-08-13T21:58:00.000-04:00

Florida Passes Med Mal Reform

The Florida Legislature passed a measure to reform the medical malpractice tort system.

According to Reuters, Jeb Bush is confident that the measure will work:

Gov. Jeb Bush applauded lawmakers following three special legislative sessions to hammer out a compromise measure and said he would likely sign the bill into law on Thursday.

"I'm confident there will be a reduction in insurance premiums," Bush said. "I'm confident we'll have a better system to deal with doctors -- the small number of doctors -- that commit grievous malpractice. I know we will be able to get better data for all of us to be able to make policy decisions going forward."

I am cautiously optimistic that the measure will prove effective at holding down increases in medical malpractice insurance rates as well.

The bill includes certain provision capping recoveries. Reuters says:

The compromise plan caps damages for pain and suffering and other noneconomic penalties at $500,000 per doctor…

The bill also places liability caps for health care facilities and emergency rooms. Victims would be still able collect up to $2.5 million in noneconomic damages for the most egregious cases, such as those causing serious injury or death.

Those caps are far more reasonable than the hard cap of $250,000 for non-economic that the doctors and insurance companies supported. I doubt that either the more generous cap that passed nor a hard cap would do much to reduce the rate of increase of med mal insurance premiums. Premiums simply have not been rising as a result of large awards for pain and suffering.

My reason for guarded optimism about the bill comes from two sources. First, Reuters reports that:

Opponents of the bill included the Florida Medical Association, the Academy of Florida Trial Lawyers and medical malpractice insurers.

If the doctors, lawyers and insurance companies are all against the bill, it is probably a pretty good compromise.

Secondly, Reuters reports:

the plan freezes rates until Jan. 1, when insurers would be required to justify new rates based on the new legal environment.

That is the provision that may cause the plan to succeed. Insurance companies have for years argued that their rate increases were driven by frivolous suits and outrageous awards. That argument is and has always been disingenuous.

When placed under oath in Florida, the insurers, doctors and regulators all admitted that frivolous suits were not the problem.

Now, with damage caps in place, the insurance industry will have no straw man on which to blame rate increases. The insurance industry will have to justify any rate increases with actual data instead of spin.

Insurance reform, not damages caps, has always been the road to keeping premiums lower. By freezing rates for a time and then requiring increases to be justified by experience, Florida may have found a way to slow the rise in medical malpractice premiums.

2003-08-13T18:51:00.000-04:00

Nice Try

While I have often written about my younger son Bobby, I have only rarely written about his older brother, Jesse.

Jesse is nine and just entered fourth grade in a math and science magnet program. I think his class is learning about exponents.

For several years now, Jesse has received an allowance of a few dollars. The allowance is doled out weekly with Sunday night being allowance night.

Upon returning home from school today, Jesse proposed that we change the allowance routine. He no longer wished to receive his allowance weekly.

Instead, he suggested that he receive one penny on the first day of the month, two pennies on the second day with the daily allowance doubling each day for a month.

Now maybe it’s just me but I think that $5,368,713.30 per month is too much for a nine year old boy to handle. Nice try, son.

2003-08-13T13:55:00.000-04:00

Hopeful Signs

While things may not be going swimmingly in Iraq, today’s New York Times had two stories that carried some hopeful signs from the other memebrs of the Axis of Evil, North Korea and Iran.

With regard to North Korea, the Times reports:

The Bush administration, which had barred concessions to North Korea before it dismantled its nuclear weapons program, is now considering some conciliatory steps. In return, North Korea would have to either fully disclose its weapons or allow international inspectors into the country, administration officials said today.

Possible concessions include some form of written assurance that the United States has no intention of attacking North Korea and some relaxation of curbs on activities by international institutions to help the North with its economic problems, the officials said.

An administration official said the United States might even be prepared to offer economic incentives, an idea it previously disparaged in connection with the Clinton administration's 1994 deal to freeze North Korea's nuclear program, which the North subsequently breached…

For nearly a year, North Korea has insisted that in exchange for dropping its nuclear program, it must get a nonaggression treaty with the United States and large infusions of economic aid.

The Bush administration has ruled out a nonaggression pact. But Secretary of State Colin L. Powell has said some form of written assurances might be acceptable as a means of underscoring President Bush's declaration that the United States had no intention of attacking North Korea.

All in all, that seems like a good development. The difference between a “non-aggression pact” and “written assurances” of no intent to attack does not seem to be an insurmountable obstacle.

Providing economic aid in return for dismantling of the North Korean plutonium production capacity does have the whiff of blackmail. Nonetheless, I would prefer that we purchase North Korea’s plutonium than to have it for sale to Al Qaeda and others. The key, as in all decisions to pay blackmail, it to ensure it is a one time transaction.

The news from the third corner of the Axis is also hopeful. The Times carries a Reuters story out of Tehran:

The head of Iran's atomic energy program said Wednesday the Islamic Republic planned to allay international concerns about its nuclear program which Washington says may be used to produce atomic bombs.

``I believe that we will remove the international concerns,'' Iran's Atomic Energy Organization chief Gholamreza Aghazadeh told reporters after a weekly cabinet meeting.

Iran has come under mounting international pressure to allow closer inspections of its sophisticated network of nuclear facilities, which include a uranium enrichment facility…

Iran insists its nuclear program is solely geared to producing electricity and has so far resisted calls to sign the Additional Protocol of the nuclear Non-Proliferation Treaty (NPT) which would allow no-notice, intrusive inspections.

EU Commission spokesman Jean-Christophe Filori said Aghazadeh's comments only partially eased European concerns.

``This is fine, but what we really expect is signature and ratification of the protocol,'' he told a daily news briefing.

``We hope this is all a step in the right direction, but we expect something concrete before making more definitive assessments.''

While the Iranian announcement cannot be taken at face value, I agree with Filori that it may be a “step in the right direction.”

Neither story suggests that our goals in Iran and North Korea have been accomplished. Both stories, however, contain a ray of hope.

2003-08-12T21:25:00.000-04:00

Would You Like a New BMW?

We have been considering buying a new car for my wife. Her car is getting old and with the kids, she really needs a minivan. While we will end up being practical, I could not help but notice the new BMW. It is a fine car.

It has been a number of years since I have been car shopping and I admit to a bit of sticker shock. The BMW costs more than $33,000.

To me, that seems like a lot of money to fork over for a car. George W. Bush doesn’t think it is much money at all. He plans to put the cost of a brand new BMW on your credit card.

In the 2000 campaign, George W. Bush promoted his tax cut policies by reminding the voters that “it’s your money.”

When the government runs up massive debt, it is also “your money” only on the debit side of the ledger. How much of your money will Bush’s policies put on the debit side of your balance sheet? About the cost of a brand new BMW for each American tax filer.

The starting point for this analysis is the Office of Management and Budget’s Mid Session Review.

Mr. Bush’s OMB anticipates that the federal government will run deficits of $2.069 trillion for the years FY 2002 through FY 2008.

Those estimates, however, assume that the entire Social Security and other trust fund surpluses will be spent to fund current operations of the government. Mr. Bush and almost every other major political figure have promised not to spend those surpluses as they will be needed to fund the costs of the retirement of the baby boomers.

For the period of 2002-2008, those surpluses amount to $1.332 trillion dollars according to the OMB estimates. Thus, the “on-budget” deficit Mr. Bush proposes to run for the period of FY 2002-2008 totals $3.4 trillion.

That is not all. The OMB estimates do not include the costs of rebuilding Iraq. As OMB states:

These estimates do not reflect what the Administration has previously indicated are expected but undetermined additional costs arising from ongoing operations in Iraq, extending beyond 2003.

This report’s lead paragraph states that:

Private analysts have estimated that the cost of U.S. military and nation-building operations in Iraq could reach $600 billion.

The body of the story reports estimates of possible costs for Iraq's reconstruction ranging from about $100 billion up to $600 billion. Since we used conservative figures on the future deficits, let’s use the higher estimate $600 billion for cost of rebuilding Iraq.

In addition, the Mid Session Review did not include any spending for Mr. Bush’s proposed prescription drug benefit. Mr. Bush has asked that any such legislation be limited to $400 billion.

Thus, when the costs of rebuilding Iraq, the prescription drug benefit and the trust fund surpluses are accounted for, Mr. Bush plans to put about $4.4 trillion of debt on the nation’s credit card.

There are about 130 million individual tax returns filed in the U.S. Mr. Bush’s proposed borrowing works out to about $33,846 of new debt per tax return. That is about $800 more per filer than the cost of the BMW I was recently drooling over.

I guess I will end up having both the debt and a minivan.

2003-08-12T18:54:00.000-04:00

Frivolous, Fair and Balanced

I have previously argued that lawsuits filed for a purpose other than to succeed on the merits are one type of frivolous suit that can succeed. I gave two examples of such suits.

First, I noted that drug companies file patent infringement suits not to vindicate their intellectual property rights but rather to extend the period for which profitable drugs remain under patent protection. Second, I noted a suit by Monsanto against a small dairy that appeared to have the purpose intimidating other small dairies.

Those suits are frivolous because they are brought for an improper purpose. Today, I note another suits that may have been brought for an improper purpose.

Fox News has sued Al Franken and his publisher for trademark infringement based on the title of Franken’s new book, Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right.

Fox contends that Franken’s book infringes on its trademark of the phrase “Fair and Balanced.”

Alex Knapp of Heretical Ideas thinks that Fox is suing not in a effort to win the suit against Franken but, rather, to make a record of haven vigorously defended its trademark so as to increase its chances of winning other suits:

And while yes, it's probably true that Franken will win the suit, the blame doesn't lie on Fox's "sensitivity," but rather the nature of trademark law itself. The fact of the matter is, it's really easy to lose one's trademark, and recent Supreme Court decisions have made it easier. And one factor in claiming that a company's trademark is no longer unique is the lack of vigorous enforcement of the mark. So Fox's goal here, I would imagine, isn't to win this lawsuit, but to make sure they can use this suit as evidence of vigorous enforcment in the case that their trademark does become infringed. That's the nature of the business.

I think Knapp has correctly identified Fox’s motive. I also think that filing suit for purposes other than winning the action on the merits is frivolous and abusive.

Why should Franken or his publisher have to endure a suit so that Fox is in a better position if someone else, say CNN, decides to claim that its news coverage is "Fair and Balanced"?

Now, I expect that neither Franken nor his publisher is very upset. The suit is likely to drive book sales through the roof.

Nonetheless, after Fox’s suit is dismissed on the blindingly obvious grounds that Franken’s use of “fair and balanced” is parody, Fox should be sanctioned.

2003-08-11T20:54:00.000-04:00

If You Read One Thing Today

If you read one thing today, make sure it is What Would Bobby Do? by the incomparable Jeanne D’Arc.

Today, she reminds me of something I have long known but had recently forgotten. Thanks Jeanne. Please go read it.

2003-08-11T18:55:00.000-04:00

Happy Mother’s Day

I wanted to take this opportunity to wish a Happy Mother’s Day to my wife and all of the other moms of school aged kids (especially moms of special needs kids).

Any of you who think that Mother’s Day is a Sunday in the spring and not a Monday in the fall either do not have school aged kids or have not been paying attention. School started today and that marks the real Mother’s Day.

2003-08-11T14:43:00.000-04:00

Fiscal Fraud

Matthew Miller has an excellent column about GOP fiscal policy entitled Truth Is Antidote To GOP. Link via Tom Spencer.

Miller first sets out to demonstrate that GOP rhetoric on government spending is fraudulent:

Proof of the GOP's honesty deficit comes by asking a simple question: What is the Republican position on the right size of government and how to fund it?

Start with basic but poorly understood facts. Seven programs make up 75 percent of all federal spending: Social Security, Medicare, Medicaid, military pensions, civil service pensions, defense and interest on the debt. That's "big government."

Republicans aren't trying to cut a dime of it but are calling for big increases in every one of these programs. According to the White House, interest on the national debt alone will soar by 66 percent over the next five years, thanks to the red ink oozing from President Bush's budget.

Those "big 7" programs come before you toss in everything from NASA to the national parks to the National Institutes of Health, not to mention homeland security, student loans and farm subsidies -- all things Republicans support, and which take up a goodly portion of the remaining quarter on the federal dollar.

Thus, if you pay heed to their votes and not their words, the Republican critique of "big government" is a pure charade.

Fiscal policy consists of more than just the spending side of the equation. There is also the tax side. Miller demonstrates that the GOP’s tax position is equally dishonest:

Though it hardly seems possible, the GOP position on taxes is even more shocking. Understanding why requires a quick, painless look at a few numbers.

Over the next five years, President Bush figures the "big 7" programs will cost, on average, about $1.8 trillion a year.

Over the same period, he says, the revenue the government will collect, not counting Social Security taxes (which both parties say shouldn't be used for current spending, though it is), will average $1.35 trillion a year -- $450 billion a year less than just the "big 7" on which Republicans want to spend more.

Income tax reduction under President Bush accounts for most of this gap.

Since the GOP thinks income tax rates should continually be reduced, they obviously believe we should fund activities they support in one of two ways.

First, we can borrow huge amounts from our children (GOP's present plan).

Or, we can at some point raise payroll and other retirement taxes, which means funding government through taxes that impose a greater burden on lower- and middle-income citizens. The income tax, by contrast, is progressive.

Mathematically, these are the only options available, given that Republicans, rhetoric aside, aren't interested in cutting government spending.

This, then, is today's spectacle: "Family values" Republicans are sticking the kids with the bill for current spending while railing fraudulently against the "big government" they support.

How does the GOP get away with simultaneously being for big government spending, low taxes and family values? Miller puts the blame squarely on the media:

If we had a functioning press corps -- one that simply presented these facts again and again -- the fiscal and moral fraud of the GOP position would be self-evident.

Instead, today's press corps chews endlessly over the political jockeying. "Does Bush have Democrats in a bind because they have to talk about repealing his tax cuts?" they ask, rather than laying out the facts that show that Bush's positions are an obvious hoax.

So much for our "adversarial" press! And because the White House knows top editors and producers will think that repeating these tougher questions and analyses would seem too "biased," they can count on "he-said, she-said" coverage to leave citizens confused.
This confusion is the Republican goal.

Is this Republican hoax really sustainable? As both political parties know, the answer largely depends on how the press views its responsibilities in the coming election cycle.
It's time for editors and producers to hammer home some basic civic facts instead of continuing their overwhelming -- and lazy -- emphasis on "the politics" of every debate.

I agree with Miller’s assessment although I think a fair amount of blame for the success of the GOP fraud lies with Democrats who underestimate the public’s intelligence and refuse to simply and clearly describe the fraud over and over until it begins to resonate.

The GOP will continue to perpetrate the fraud until it becomes politically costly. The only way to make it politically disadvantageous is to expose the fundamental dishonesty of the position in clear language. When that does not work, do it again. And again. And again.

The explanation should be in every speech of every Democratic candidate from now til November 2004 and beyond. It should be in many if not all Special Order speeches on C-Span. It should be repeated on every talk show on cable.

If every Democratic candidate, Senator and Congressman makes a priority of explaining the fraud, the media will be forced to report it. At some point, even our current media will ask Mr. Bush how he plans to pay for the amount of government he advocates.

Update and Correction

Jane Galt points out in comments that Miller is including all Social Security spending but no Social Security receipts in his analysis. Jane is correct.

I think what Miller meant to do was to include all current Social Security spending and all Social Security revenue less the surplus generated by Social Security taxes. That is, I expect that Miller intended to subtract the trust fund surpluses from government revenue.

While I do not have the time at the moment to do the five year averages Miller uses, for FY 2004 total government revenue is expected to be $1.797 trillion (see Table 7 at the link). The off budget surplus is expected to be about $164 billion (see Table 8 at the link). Thus, total receipts ex of the trust fund surpluses are expected to be about $1.633 trillion.

Spending in FY 2004 is expected to be $2.272 trillion. If, as Miller suggests, spending on the “big 7” is about 75% of total spending, then the “big 7” will consume $1.704 trillion or slightly more than total projected revenues (other than the trust fund surpluses). Without the trust fund surpluses, we would be in deficit next year even if the government funded nothing but the "big 7".

Assuming Miller is right about the “big 7” consuming 75% of spending (and that would be close to my guess), his point is valid even if his numbers got screwed up.

2003-08-10T17:23:00.000-04:00

Consensus

My post on Jamie Gorelick’s conflict of interest attracted a bit of interest. It appears that there is a consensus across the political spectrum that Ms. Gorelick should resign from the 9/11 commission.

From the right, John Cole says that the conflict should cause a “seething rage.” Glenn Reynolds says that the conflict is a “doozy” and is “unacceptable." Tom Maguire, the Minuteman, agrees that the conflict is bad. He also says that:

We can reliably predict the reactions of certain prominent lefty bloggers, and we hope that Dwight does not catch too much flack for, no doubt inadvertently, becoming a temporary dupe of the right-wing spin machine.

His prediction of the reaction of the left was off the mark. Matthew Yglesias finds the conflict “intolerable.” Oliver Willis agrees that the conflict is an “unbelievable outrage.” Jeanne D’Arc remarks that “You can't investigate 9/11 and represent Saudi interests.” Atrios finds the conflict “disturbing” and a “horrible travesty.”

Making sure that unanimity among bloggers is never achieved, Beldar recognizes the conflict but thinks that it should be waived. With all due respect, I disagree. Beldar thinks that competent, uncompromised people are just not available to serve on the commission:

Find me a lawyer in Washington who's absolutely pure, unencumbered by all conceivable potential conflicts of interest, remotely as well-qualified by education and experience as Ms. Gorelick, and beyond all plausible attacks by the conspiracy theorists, and I'll eat Dubya's sweaty Rangers baseball cap. You're more likely to find a unicorn in Lafayette Park.

To that I respond that the commissioners do not have to be lawyers and that Gary Hart and Warren Rudman are both available. End of discussion.

The most interesting discussion of the issue came from Atrios. His position on the Gorelick conflict is that:

It is a horrible travesty, but the entire 9/11 commission is a horrible travesty, and I've frankly just written the whole thing off as a farce.

I agree that the commission is a farce, but I disagree that it should be written off. I will post my reasons shortly. For now, however, I want to address the fact that Atrios was, apparently, hectored into providing his views on the subject.

John Cole “had his knickers in a twist” because he did not feel that Atrios was paying sufficient attention to the story.

While many of us have come to rely on Atrios for news and commentary in much the same way we rely on the power company to supply the juice when we flip the switch, Atrios is not, in fact, a public utility. Unlike a utility, Atrios is not required to provide his service whenever we request it.

Atrios writes about the things that interest him. He is not required to weigh in on an issue simply because someone else is interested in it.

I note that in the last couple of days, there have been major stories published about the Weather Balloons of Mass Destruction (as Atrios puts it) as well as the administration’s willingness to deceive the public in the run up to the war. A link to either story is absent from Instapundit.

Should those of us who have been critical of Mr. Bush get our “knickers in a twist” over those omissions? I do not think so. Glenn is not a public utility either. He writes about what he chooses just like Atrios and every other blogger. If people do not like the issues that Atrios or Reynolds choose, they are free to visit other sites.

To paraphrase blues singer Taj Mahal, how bloggers select subjects on which to write "ain't nobody's business but your own."

2003-08-08T00:05:00.000-04:00

Gorelick Must Resign the 9/11 Commision

Yesterday, I wrote about a number of “wise men” who have chosen to be members of law firms that accepted money to represent Saudi Arabia, Saudi individuals or interests in the law suit brought by the families of the 9/11 victims.

Mark Kleiman wonders whose side such persons are on. With regard to James Baker, Mark asks:

how hard is it to figure out that the former Secretary of State of the United States shouldn't be carrying water for the foreign power responsible for the largest massacre of Americans ever carried out?

The same can be asked of each of the “wise men” I named in the previous post as well as of former Attorney General Griffin Bell and former Solicitor General Seth Waxman both of whom are partners in firms representing the Saudis against the families of the 9/11 victims.

For Jamie Gorelick, answering a simple question is not enough. Gorelick is a litigation partner in the Washington law firm of Wilmer, Cutler & Pickering. Gorelick was formerly the number two person at the Department of Justice where she held the position of Deputy Attorney General of the United States.

According to Newsweek, Gorelick’s firm has agreed to represent Prince Mohammed al Faisal in the suit by the 9/11 families. The families contend that al Faisal has legal responsibility for the 9/11 attacks.

While her firm is representing Saudi interests against the 9/11 families, Ms. Gorelick is a member of the National Commission on Terrorist Attacks Upon The United States.

That commission, commonly referred to the “9/11 commission” is:

chartered to prepare a full and complete account of the circumstances surrounding the September 11, 2001 terrorist attacks, including preparedness for and the immediate response to the attacks. The Commission is also mandated to provide recommendations designed to guard against future attacks.

Given that the 9/11 families' suit charges the client of Ms. Gorelick’s firm with responsibility for the 9/11 attacks, it is completely inappropriate for her to remain on the 9/11 commission.

It is outrageous that her firm would have accepted the representation of a defendant in the suit while Gorelick sat on the commission. It is more outrageous that she did not immediately resign from the commission.

She must immediately resign the commission. No excuses. No delay.

2003-08-07T13:56:00.000-04:00

Pop Quiz

Today’s pop quiz has only three questions.

(a) Who was the most highly compensated corporate executive last year?

(b) How much money did he (you knew it was a he, right?) make?

(c) What did he do to receive that compensation?

The first two questions are easy. The highest paid corporate executive in 2002 was Jeffrey C. Barbakow, formerly the CEO of Tenet Healthcare. Mr. Barbakow received $116 million in compensation plus additional stock options potentially worth an additional $72 million.

Tenet Healthcare owns and operates hospitals. Tenet has revenues of about $14 billion and ranks 136th on the list of the largest U.S. companies.

The third question is a lot tougher. What exactly did Mr. Barbakow do to earn his fortune?

I will give you a hint. It cannot be that he was rewarded for the long term performance of Tenet stock as that stock has fallen from its 52 week high of $52.50 to its current price of $14.25.

Need another hint? It is not that he put Tenet into a strong financial position that remained unrecognized by the stock market as at least one ranking has placed Tenet in the bottom 10 of companies considered at risk for default or downgrade of its bonds.

Give up? Okay, I will give you the correct answer. To earn his massive compensation, Mr. Barbakow’s company owned and operated a hospital that performed heart operations on hundreds of patients who did not need the procedures and then defrauded the tax payers by billing Medicare and other government programs for the costs.

The New York Times has the story:

The Tenet Healthcare Corporation agreed yesterday to pay $54 million to resolve government accusations that doctors at a hospital in Northern California conducted unnecessary heart procedures and operations on hundreds of patients.

The settlement is the largest in a case involving what is known as medical necessity fraud, or billing government health programs for tests and treatments that the patient's condition did not require.

You get partial credit if your answer specified Medicare fraud but failed to mention the unnecessary heart operations. As the Times reports:

Tenet, based in Santa Barbara, Calif., also faces an investigation by the Justice Department into whether it artificially increased prices at some hospitals to inflate the payments it received under a complex formula used by Medicare.

So, how did you do on the quiz?

2003-08-07T12:40:00.000-04:00

Job Creation Scorecard For July

When selling his latest round of tax cuts, President Bush made a specific promise with regard to job growth. Mr. Bush promised that the tax cut would create 510,000 more jobs this year than would otherwise have been created. The President signed the tax cut bill on May 28. The press release announcing the promise is here.

How many jobs must the economy create this year for Mr. Bush’s promise to come true?

Last February, the President’s Council of Economic advisors issued a statement that noted that in the absence of the tax cut, the economy would create 256,875 jobs per month. Thus, for the period of June through December of this year, the economy would create 1,798,125 jobs in the absence of a tax cut. With the promise of job creation through the tax cut, the economy would have to produce 2,308,125 jobs in the June through December period for Mr. Bush’s promise to come true. That works out to 384,687 jobs per month.

How is the promise holding up?

In June, the economy lost 30,000 jobs putting Mr. Bush 414,687 jobs behind pace.

In July, the economy lost 44,000 jobs. In the first two months after Mr. Bush promised the creation of 384,687 jobs per month, the economy has lost an average of 37,000 jobs. Instead of the creation of 769,374 jobs (the pace needed to make the promise come true), the economy has lost 74,000 jobs since the tax cut became law, putting Mr. Bush 841,374 jobs behind pace.

In order to meet the promise, the economy will now have to create 2,382,125 jobs in the last five months of the year. That works out to an average of 476,425 jobs per month.

For the purposes of comparison, during the 1990s, non-farm payrolls grew by 21 million jobs. That is an average of 175,000 new jobs per month.

My first post in this series is here.

See you next month for another update.

2003-08-06T19:53:00.000-04:00

Blue Ribbon Panel

One of the most venerable traditions of Washington is the Blue Ribbon panel. Any issue that is too dangerous politically for both parties gets assigned to a Blue Ribbon Panel.

The Blue Ribbon Panel is usually made up of “wise men” of both parties. They are the adults. They do not partake in the usual partisan sniping. They know that every Blue Ribbon panelist will put the interests of the country ahead of any personal, financial or political interests. They have been around power and know the ways of power. They are not naïve. Administrations come and go but the wise men are always there. That is why they are known as “wise men.”

Let us say, hypothetically of course, that the issue of state sponsored support for terrorists, including the Al Qaeda operatives who executed the 9/11 attack, needed an investigation. Who should perform such a delicate task? A Blue Ribbon panel would be the appropriate selection. Who would serve on such a panel? The wise men, of course.

The panel should be completely bipartisan and should include people with experience in law, foreign policy, the legislative and executive branches and other areas. Who would fit those criteria?

Let’s pick a Blue Ribbon Panel for the investigation.

James Baker, formerly the Secretary of Treasury, Secretary of State and While House Chief of Staff is a natural. Every important Blue Ribbon Panel would be proud to have him as a member.

Sam Nunn, formerly Democratic Senator from Georgia and armed services expert is available. He is also a natural.

For legal advice, how about Lloyd Cutler, formerly While House Counsel for Bill Clinton and C. Boyden Gray who held the same post under George H. W. Bush?

Vernon Jordan, formerly fixer for Bill Clinton, and former Senator Lauch Faircloth, a confirmed Clinton hater, could be paired so as to satisfy both parties.

Similarly paired could be Tom Foley, Democratic former Speaker of the House and Bill Paxon, Republican former member of the House Leadership under speaker Gingrich.

That is only eight members and every panel should have an odd number just to prevent gridlock. I suspect that Robert Strauss, the uber-fixer who, although a Democrat, has served Republican Presidents would be acceptable to all.

Now we have our panel. That was easy wasn’t it?

There is one small problem. All of the members of the panel work for law firms that have taken large retainers to represent the Saudi Government, individual Saudis or Saudi interests in the suit filed by the families of the 9/11 victims. (Link via Tapped.)

Those wise men sure know how to put aside their own financial interests for the good of the American people, don’t they?

2003-08-06T16:08:00.000-04:00

Promise Breakers

While I was at the beach, I overheard a political conversation between two men. The conversation was about how terrible it was that politicians break campaign promises. The younger man seemed to think that the most egregious example of campaign promise breaking was Bill Clinton’s failure to deliver a middle class tax cut in his initial economic package. The older man felt that the worst offender was George H. W. Bush decision to raise taxes after telling the American people to read his lips.

The similarity between those two examples of broken campaign promises was striking. In each case, the promise was made to overcome a preexisting image problem. In the 1988 campaign, George Bush 41 was plagued with the dual problems of not being seen as the heir to Ronald Reagan and also as being perceived as a bit of a wimp. The tax issue allowed Mr. Bush to claim a share of the Reagan legacy while Mr. Bush’s Clint Eastwood imitation addressed the wimp factor.

For Bill Clinton, the issues were different. Coming off the 1984 and 1988 election debacles, Democrats were perceived as out of the mainstream. Clinton was determined to drag the party back to the center by advocating “third way” policies. The middle class tax cut, along with “ending welfare as we know it,” support for the death penalty, criticism of the “brain dead policies” of both parties, and criticism of Sister Souljah were all central to Clinton’s establishment of a “third way” image.

Bush 41 and Clinton broke their respective campaign promises about taxes for the same reasons. In each case, they faced a serious fiscal problem. In each case, it would have been politically expedient to keep the promise. Both Clinton and Bush 41 decided that the right policy was to break the promise.

In both instances, while it was obvious that the administration would suffer political damage from the breaking of the promise, the Presidents felt that the country would be better off with a different policy than the one advocated in the campaign. Each chose the policy that he felt was best for the country even at the cost of his own political harm.

As he prepared to run for President in the 2000 election, George W. Bush faced a similar problem. Throughout much of the 1990s, the face of Republicanism was Newt Gingrich. Gingrich’s leadership of the GOP led (or was perceived to have led, depending on your perspective) to the rise of the politics of personal destruction, lack of bipartisanship, gridlock and a level of ugliness in our discourse that was troubling to the American people. The government shutdown, the alleged Clinton scandals and the partisan impeachment of a popular President are a few examples of that phenomenon. I am not attempting to assess responsibility for that perception but rather simply to note that any GOP Presidential candidate in 2000 had to deal with those issues.

George W. Bush dealt with those perceptions by declaring himself to be a “uniter not a divider.” He promised to “change the tone” in Washington and end the partisan bickering. In his convention acceptance
speech, George Bush noted that:

I have no stake in the bitter arguments of the last few years. I want to change the tone of Washington to one of civility and respect.

In the same speech, Bush noted his bipartisan credentials:

I worked with Republicans and Democrats to get things done. A bittersweet part of tonight is that someone is missing, the late Lt. Governor of Texas Bob Bullock. Bob was a Democrat, a crusty veteran of Texas politics, and my great friend.

He worked by my side, endorsed my re-election, and I know he is with me in spirit…

In his inaugural address, Bush said:

Today, we affirm a new commitment to live out our nation's promise through civility, courage, compassion and character.

America, at its best, matches a commitment to principle with a concern for civility. A civil society demands from each of us good will and respect, fair dealing and forgiveness.

Some seem to believe that our politics can afford to be petty because, in a time of peace, the stakes of our debates appear small…

We must live up to the calling we share. Civility is not a tactic or a sentiment. It is the determined choice of trust over cynicism, of community over chaos. And this commitment, if we keep it, is a way to shared accomplishment.

Mr. Bush has spoken of the importance of changing the tone in Washington. As Spinsanity reports, in April, 2001, Mr. Bush commented that:

I've been changing the tone in Washington, and that's very important because Washington can be a very acrimonious and bitter place where people are here for -- to further their own political agendas as opposed to doing what's right for the people...

If Mr. Bush intended to keep his promise to “change the tone” and be a “uniter not a divider,” how would he go about it? According to Mr. Bush and his advisors, there were at least three ways.

First, in an article published in 2001, Michael Barone reported on a conversation he had with Karl Rove:

In the run-up to the 1998 elections, I asked his chief political strategist, Karl Rove, whether Republicans would win the few seats they needed for a majority in the Texas House. We could, he said, but we probably won't, because we have a policy of not opposing Democrats who support us on one of our major issues.

With their control over the Republican Party and their ties to lobbyists, Mr. Bush and Mr. Rove could guarantee co-operative Democrats that they would not have serious opposition. Their goal was not to achieve narrow Republican majorities, but to create a situation where there would continue to be a reservoir of Democrats from whom they could win support. They can do the same in Washington.

Once he got to Washington, was Mr. Bush’s goal “not to achieve narrow Republican majorities, but to create a situation where there would continue to be a reservoir of Democrats from whom they could win support?”

Max Cleland might not think so. Cleland, a moderate Democratic Senator from Georgia supported Mr. Bush on his 2001 tax cut. He supported Mr. Bush’s war in Afghanistan. He supported Mr. Bush’s request for authorization for use of force in Iraq. Senator Cleland fit the Rove description of a “Democrat who support us” on not one but rather three major issues. Did George Bush follow his Texas model and not oppose Mr. Cleland’s reelection?

He did not. Mr. Bush hand picked Mr. Cleland’s opponent and then authorized a campaign in which Mr. Cleland’s patriotism (Cleland is a Viet Nam veteran who lost three limbs in service to his country) was questioned.

When faced with the choice of fulfilling his campaign promise to be a “uniter” and change the hyper partisan tone of Washington at the expense of perhaps losing a Senate seat that the GOP could otherwise have won, Mr. Bush put political expediency above fulfilling his pledge.

A second way Mr. Bush could have implemented a policy of “changing the tone” would be to show respect for people who disagree with him. In October of 2000, Mr. Bush said:

I'm going to be respectful for people who may disagree with me. I've had a record of doing so in the state of Texas. I've been a person that would -- been called a uniter not divider because I accepted some -- I accept other people's points of view.

Has Mr. Bush been respectful of people who disagree with him?

During the debate last fall over the creation of the Homeland Security Department, a dispute arose as to whether or not employees of that department would have Civil Service protection. Democrats wanted the Civil Service rules to apply. Mr. Bush did not. Did Mr. Bush respect those with whom he disagreed?

According to the Washington Post, Mr. Bush’s response to opposition on the Homeland Security bill was to charge that Democrats did not care about the security of the American people:

As he seeks to boost Republican candidates in the midterm elections, President Bush is increasing his emphasis on terrorism and national security…

Four times in the past two days, Bush has suggested that Democrats do not care about national security, saying on Monday that the Democratic-controlled Senate is "not interested in the security of the American people." His remarks, intensifying a theme he introduced last month, were quickly seconded and disseminated by House Majority Whip Tom DeLay…

In other words, Mr. Bush chose to break his campaign promise to “change the tone” in order to advance his political prospects.

That is not an isolated example. When Democrats questioned Attorney General John Ashcroft on the need to curtail civil liberties in the wake of 9/11, Ashcroft showed little respect for differing views, remarking:

Your tactics only aid terrorists for they erode our national unity and diminish our resolve. They give ammunition to America's enemies and pause to America's friends. They encourage people of good will to remain silent in the face of evil.

A third way to implement a policy of “changing the tone” is to control the partisan urges on Mr. Bush’s side of the aisle. Mr. Bush has acknowledged the need to do so. For instance, at a 2001 RNC Gala, Mr. Bush said the following:

Changing the tone of our Nation's Capital hasn't been easy. I realize that in politics, old ways die hard. Washington at times has got a plenty sharp edge to it. The only thing I can do, and the only thing Dick Cheney and others in our administration can do is to control our own responses.

Has Mr. Bush controlled the responses of his administration and allies in an effort to “change the tone?” A few examples suggest that he has not.

Grover Norquist recently noted his position on changing the tone:

We are trying to change the tones in the state capitals - and turn them toward bitter nastiness and partisanship," said Grover Norquist, a leading Republican strategist, who heads a group called Americans for Tax Reform.

"Bipartisanship is another name for date rape," Norquist, a onetime adviser to former House Speaker Newt Gingrich, said, citing an axiom of House conservatives.

Mr. Bush has yet to discipline Mr. Norquist.

During the Florida recount, the civility of politics was interrupted by the Brooks Brothers Riot. As I have previously written:

The post-election battle for the Florida electoral votes is instructive. The Bush camp paid the expenses for a large delegation of congressional staffers and activists to go to Florida. While there, they instigated the “Brooks Brothers Riot” in which they stormed the election offices, shouted loudly and physically assaulted election officials. The Bush campaign, instead of rebuking their conduct, paid for a victory party.

Rewarding the rioters is not conduct that can fairly be described as “controlling our own responses” in an effort to change the tone.

A third example of the administration failing to control its own responses comes from Dick Cheney. I described it as follows:

The issue of whether or not to drill for oil in a protected wilderness in Alaska arose. Mr. Bush favored such drilling. Democrats largely opposed such drilling. A Republican-friendly group known as the Family Research Council began running television ads supporting the drilling in Senator Tom Daschle’s home state of South Dakota.

The ads compared Mr. Daschle to Saddam Hussein and ran pictures of both, side by side. The ad was ridiculous garbage…

Amidst that debate, Vice President Dick Cheney appeared on Meet the Press. Tim Russert ran one of the ads and asked Mr. Cheney, “That's a little over the line, isn't it?” ...

This was Mr. Cheney’s actual response:

CHENEY: Well, I'm not responsible for the ad, and you flashed it so fast, I didn't have a chance to read the copy.

Other examples abound. Mr. Bush could certainly halt Tom Delay’s effort to force mid-decade redistricting in Texas. That effort has involved the inappropriate use of the Homeland Security Department to track down Democratic lawmakers and efforts to arrest Democrats who opposed the plan. That drive for political advantage adds to the partisan acrimony. Mr. Bush tolerates Delay’s efforts because of potential political gain.

In the House of Representatives, Bill Thomas refuses to provide Democrats with time to read a ninety page piece of complex proposed legislation before forcing action on the bill. He then fails to hear a Democratic objection to a unanimous consent motion so as to prevent Democratic objections. Finally, he calls the cops in an effort to prevent Democrats from discussion their strategy. Those sort of high handed actions poison the political discourse and prevent bipartisanship. Mr. Bush could, with one phone call and a press release, denounce and halt such tactics. He does not do so in an effort to maintain political advantage.

There is perhaps no greater need for Presidential action to “change the tone” than in the area of judicial nominations. The experience of Robert Bork, Clarence Thomas, Ronnie White and a host of Clinton nominees has reduced the process of selection Federal Court judges to a partisan mud fest. The point is not to assess blame for that situation (I have my views on where the blame lies and you no doubt have yours) but rather to point out that if Mr. Bush planned to honor his campaign promise to change the tone, a good place to start would be in the area of judicial nominations.

There are a plethora of highly qualified mainstream conservative jurists who would garner 70+ Senate votes for confirmation. Mr. Bush could have tried to heal some wounds by restricting his nominees to those consensus candidates. He could also have re-nominated a judge like Ronnie White who was the victim of just the sort of partisan smear campaign that Mr. Bush claims to want to eliminate.

Instead of attempting to heal the wounds, Mr. Bush decided to use the nominating process to placate and shore up his base among social conservatives. He has chosen to nominate folks like Pryor, Estrada, Pickering and Owen knowing that such nominations will increase political rancor and decrease bipartisanship.

After three of those nominees were rejected by the then Democrat controlled Senate Judiciary committee, Mr. Bush re-nominated them, thereby guaranteeing a partisan fight.

Republican Senators have already changed the long standing rules on the right of individual Senators to use “blue slips” to prevent confirmation of Judges from their home states (a process used extensively to prevent the confirmation of Clinton appointed judges). The GOP is now even talking about employing the “nuclear option” to break the filibusters. The "nuclear option" consists of using parliamentary tricks to change the rules in the middle of the game in an effort to prevent the minority from using the filibuster against judicial nominees. It is widely recognized that such a move would end any hope of bipartisanship on any issue in the Senate.

Mr. Bush noted in 2000 how a “uniter, not a divider” would react to partisan differences:

I am someone who is a uniter, not a divider. I don't believe in group thought, pitting one group of people against another. And all that does is create kind of a huge political, you know, nightmare for people."

When Democrats oppose the Estrada nomination, Mr. Bush’s allies accuse them of being anti-Hispanic. When Democrats oppose the Pryor nomination, Mr. Bush’s friends accuse them of being Anti-Catholic. What happened to not believing in “group thought, pitting one group of people against another”? What happened to avoiding trying to “create… a huge political… nightmare for people”?

Changing the tone of judicial nominations would be hard. The acrimony has built up of a number of years and both sides feel that they have been treated unfairly. Judicial nominations are a hot button topic on both right and left. The hard feeling from those battles spill over to many other issues. The problem with hyper partisan nature of judicial nominations will not be solved soon or easily. It will never be solved without presidential leadership.

In 1999, George Bush discussed the role of leadership in ending the partisan bickering:

As Governor of this great state, I have proven I know how to lead. I know that a leader must clearly see a better tomorrow. A leader must make decisions based on principles. And a leader must be a uniter, not a divider.

With regard to judicial nominations, Mr. Bush could try being a leader who sees “a better tomorrow.” He could try to be “a uniter, not a divider.” To do so might cause some political difficulty with his base but is that not what being a leader is all about?

George Bush 41 and Bill Clinton were willing to break campaign promises and suffer political damage to steer a course they felt was best for the country. George W. Bush is unwilling to fulfill a campaign pledge that would improve the political discourse of the country if the cost includes any degree of political damage to him. Which is the greater sin?

2003-08-05T12:52:00.000-04:00

Compassiongate

TR of eRiposte has done a considerable amount of hard work developing a new site known as Compassiongate. TR describes the purpose of the new site:

My own goal with this site was to provide a means to collate information in a manner that makes it much easier for interested people to see what the administration is all about. I present the information in concise tabular form, with links to sources for people who want to read more details. I believe that my site, as it fills up, will be the most comprehensive information site on the Bush administration's "compassion", "moral clarity", "promises kept", and nominees/appointees. My hope is that my site will make it easier for students, everyday people, bloggers, information websites, and those in the media who actually care to understand what this administration is all about, to find what they are looking for and discover what they were unaware of.

The new site compiles information (with copious links) in TR’s usual tabular format. The first installments of Compassiongate concern Mr. Bush’s truthfulness during the 2000 election. For instance, TR notes that during the campaign, Bush’s

campaign material asserts that the cuts..."are especially focused on low and moderate income families." The proof? "Roughly $3 out of every $6 returned to taxpayers would finance changes that help low income families.”

Compassiongate then provides links to analysis of that claim by The Daily Howler, Citizens for Tax Justice, Issues 2000 and The New Republic.

For anyone interested in learning or writing about the Bush administration with a broader perspective than the day to day news, Compassiongate promises to be a great resource.

2003-08-05T12:13:00.000-04:00

Moves

Jeanne D’Arc has moved Body and Soul to new digs. The look of the new site is as beautiful as her prose

TCMITS (The Common Man in the Street) has moved back to blogspot after problems with his ISP. His new address is actually his old address to which he has returned. The features of his site include a running total of the financial costs of the war in Iraq and a great collection of reference links such as searchable texts of the U.S. Constitution and the Bible. Oh, and by the way, Happy 50th Birthday David.

Please reset your bookmarks.

.Jeanne’s move reminds me that TypePad is now up and running.

I have been considering moving PLA. It would be nice to have functioning archives and software that consistently works.

My only reservation is ease of use. Blogger may not work often but it is rarely my fault that it is not working. I know how to publish text on Blogger (charts, tables, pictures, graphs and special effects are a different matter). I am severely technologically challenged and fear that if I move PLA, I will have difficulty with the new software. If any of you with Movable Type or TypePad experience have any advice, I would appreciate hearing from you by comment or email.

2003-08-04T15:28:00.000-04:00

Back From The Beach

My family and I have returned from our beach vacation. Despite suffering from sunburn, jellyfish stings and lack of sleep, we all survived and are no worse for wear. Regular postings will begin again shortly.

2003-07-28T13:41:00.000-04:00

Contempt For Facts

Last fall I wrote an essay entitled Garbage In–Garbage Out that bemoaned the decision-making process of the Bush administration:

It is a fundamental axiom of decision-making that one’s decisions are only as good as the information on which they are based. Bad information, or simply an absence of information, leads to bad decisions. The acquisition and assessment of information is the sine qua non of decision-making.

One of the reasons that we have little confidence in President Bush’s decision-making with regard to almost any issue is that he exhibits a complete lack of respect for the collection or assessment of information prior to making his decision.

Normal procedure for making rational decisions is to gather as much information as possible, assess the quantity, reliability, and relevance of such information and only then decide. Mr. Bush turns that procedure on its head. For Mr. Bush, the procedure is to make a decision first and then “manage” information to support the decision. Instead of carefully assessing relevant data, Mr. Bush simply listens to his “gut,” consults his moral clarity, and ignores factual data. He uses Revealed Truth as a substitute for data analysis.

Little has happened in the last year to change my mind. Mr. Bush’s disdain for using expert opinion and hard data as the basis for decision-making is boundless.

Take for example the issue of the National Intelligence Estimate with regard to Iraq policy. Last year I wrote as follows:

When deciding on his Iraq policy, Mr. Bush refused to have a National Intelligence Estimate performed. A National Intelligence Estimate compiles all intelligence data from the CIA and other intelligence sources into one document. It may be shocking that the White House would formulate a policy in the absence of National Intelligence Estimate, but the White House had sound reasons. According to USA Today, the White House failed to request a National Intelligence Estimate for Iraq because such an estimate might have cast doubts on the administration’s assertions about Iraq’s Weapons of Mass Destruction. The White House did not want to “document” those doubts.

We now know that under pressure from the Senate, the administration finally did perform a NIE regarding Iraq. Once the NIE was finished, it was sent to Mr. Bush and his national Security Advisor Condi Rice. Neither Mr. Bush nor Dr. Rice could be bothered to actually read the NIE.

As Digby has noted:

It would appear that this NIE was designed specifically for the purpose of convincing wavering Senators and may explain why they included such absurdities as the Niger yellowcake nonsense as well as why Condi didn't bother to read it. Clearly, it was not a document the administration believed was important for their own purposes.

That pattern shows up again and again with Mr. Bush. A second example we used in last year’s entry was the administration’s Waco economic summit. We noted that:

When Mr. Bush held an economic summit in Waco, Texas this summer, he did not use the opportunity to gather information about the economy. Mr. Bush made sure not to invite anyone who did not already support his economic policies. No discussions of the issues of deficit reduction, stock market collapse, slowing or non-existent growth, rising unemployment, potential for deflation, or corporate abuses were permitted unless in the context of how Mr. Bush’s existing policies were the exact set of actions to remedy any ills.

A year later, the administration not only fails to seek out opposing views, it justifies its economic policy by citing benefits that can not be detected. Josh Bolten, the new OMB director made that explicit recently when he said:

I think the art and science of economics has not yet advanced to the stage where we can really properly capture all the positive effects the tax cuts do have on the economy.

Mr. Bush makes economic policy in the absence of empirical evidence and then claims benefits of that policy that cannot be measured. The blame, of course, is put directly on the economists who are not sufficiently “advanced” to recognize all the invisible benefits of Mr. Bush’s policy.

There are countless other examples. Mr. Bush thinks it would be nice to have a missile defense system. He orders deployment of such a system despite the views of many experts that the system will not work.

The experts who try to provide Mr. Bush with reliable information that happens to cut against the Revealed Truth are shown the door. Via Brad DeLong, I located this AP report:

In the rising controversy over how the Bush administration built its case for war in Iraq, one curious fact stands out. Some who gave President Bush unwelcome information that turned out to be accurate are gone. Those who did the opposite are still around.

Former economic adviser Lawrence Lindsey, retired Marine Gen. Anthony Zinni and former Army chief of staff Gen. Eric Shinseki voiced concerns about the expense, aftermath and forces that would be needed concerns now proving to be true. These men are no longer in the picture.

Mr. Bush’s decision to limit federal funding for stem cell research to existing stem cell lines was predicated on the existence of 60 active lines being available to researchers. Despite the fact that it has become apparent that only 11 lines are available and that those lines have problems, Mr. Bush has not chosen to reconsider his decision.

In the Washington Monthly, Nicholas Thompson notes that:

The administration's stem-cell stand is just one of many examples, from climate change to abstinence-only sex-education programs, in which the White House has made policies that defy widely accepted scientific opinion…

When required to seek input from scientists, the administration tends to actively recruit those few who will bolster the positions it already knows it wants to support, even if that means defying scientific consensus. As with Bush's inquiry into stem-cell research, when preparing important policy decisions, the White House wants scientists to give them validation, not grief.

The Bush administration’s reliance on Revealed Truth instead of hard data in its decision-making is dangerous. Kevin Drum writes:

Bad managers…either insulate themselves, or ignore the data when it's given to them, or deliberately choose to interpret the data in perverse ways. This is how George Bush strikes me. He simply doesn't care about whether things really work or not, or what the true effect of his plans is going to be, or what the data says. He just charges ahead because he's absolutely sure that his instincts are all he needs.

The real world eventually has its way, of course. The only question is how long it takes, and how much damage gets done in the meantime.

I fear that the damage will be substantial.

2003-07-27T16:36:00.000-04:00

Not A Pulitzer Winner

Sometimes reporters just do not seem to take their job seriously. Via Wizbang, I found this Yahoo News story from Reuters:

A pair of flying underpants caused a crash on a German highway when they landed on a driver's face and blocked his view, police said Tuesday.

A police spokesman in the central town of Gotha said one of a group of naked men in a van threw the underwear into a Volkswagen Passat as they passed it on a busy stretch of one of Germany's notoriously speedy autobahns.

"The underpants landed on the driver's face, causing him to ram the truck ahead from behind," said the spokesman, adding that he did not know why the men were driving along naked.

No one was hurt in the crash, but police are hunting the owner of the underpants for failing to stop at the scene.

That is the entire news story. Perhaps it is just me, but that report seems woefully incomplete. There is a complete absence of in-depth reporting.

First, although the report notes that the victim was driving a Volkswagen Passant, it completely fails to tell us if the car was a convertible or a hard top. It takes a high degree of skill to throw underwear from a speeding van not only through the open window of a trailing car but also hitting the driver squarely in the face. On the other hand, any lout might get off a lucky shot and hit the driver of a convertible. The reporter fails to clear up that crucial distinction.

Secondly, the reporter fails to tell us if the successful toss was the first attempt. The fact that a number of men in the van were naked suggests that more than one article of clothing had been thrown. An enterprising reporter would have scoured the autobahn for several miles looking for shirts, trousers, socks, and shoes. Instead, we are just left to wonder.

Next, the article makes no mention of alcohol. One of the first rules of journalism is that all stories about wrecks caused by underwear being thrown from moving vehicles must be accompanied by a reference to alcohol. The failure to provide such a reference shows either inexperience or incompetence.

Finally, the reporter exhibits an ignorance of recent history. After the Clinton brouhaha, no such story is complete without answering “boxers or briefs?”

By just phoning in his work, the reporter missed a real opportunity. I smell a whitewash. There is no telling how big the real story could be.

For instance, it is reported that “"the underpants landed on the driver's face, causing him to ram the truck ahead from behind." That does not comport with my experience. Every time I have been minding my own business tooling down the autobahn only to be blinded by flying underwear, my reaction has been to hit the brakes not the gas. There is no way I would have rammed a truck ahead of me.

There is more to this story than meets the eye. Take the role of the German police. The story says that they are “are hunting the owner of the underpants.” Should they not be looking for the thrower of the underpants instead of the owner? Is there some rule against throwing the underpants of another?

The police, apparently, are hoping to charge the owner of the underpants with “failing to stop at the scene.” Does that imply that Germany has no laws prohibiting the flinging underwear onto high speed autobahns unless the perp fails to stop after causing the wreck? That is hard for me to accept.

It is said that the cover-up is always worse than the crime. In this case, I expect that German motorists are hoping there has been a cover-up.

2003-07-25T11:56:00.000-04:00

The Tao of Deb – Deficits Matter

Our family lives by certain maxims promulgated by my wife. I call those maxims the “Tao of Deb.” The fourth maxim of the Tao of Deb is that “the definition of interest is money they pay to us.”

We are allergic to debt. We never borrow money to fund current consumption. We carry no credit card debt. We pay cash for cars and if we do not have the cash available, we drive old cars until we do.

The reasoning behind the Tao of Deb is that when money is borrowed, it must be repaid with interest. Interest payments reduce either consumption or savings. We prefer to forgo current consumption in order to maximize savings and consumption over the long run.

The same is true of government budget deficits. Those deficits are simply borrowing that must be repaid with interest. The payment of interest on the debt results either in higher taxes or lower government services.

It is not always bad for a family to borrow money. We borrowed to finance education, to buy a house and to start a business. In each of those cases, the returns were greater than the interest costs. Once we began to realize those returns, we dedicated all disposable income to pay off the debt as soon as possible.

So it also is with government borrowing. One circumstance in which it makes sense for the government to run a deficit is when the economy is falling into recession and needs a Keynesian stimulus. Like a family that incurs debt for a good reason, that debt should be quickly paid off by running a surplus when the economy is doing well. Over the economic cycle, the budget should balance.

Republicans apparently do not believe in the Tao of Deb. They run up debt to pay for current consumption in good times and bad. Of the forty-five budgets submitted from FY 1960 through FY 2004, the fifteen worst deficits (as expressed by percentage of GDP) occurred under budgets submitted by Republican presidents.

Since Ronald Reagan’s first budget, every budget submitted by a Republican president has resulted in a deficit. Each of those deficits was at least 2.8% of GDP except for FY 2002 when our current President was in the process of turning a surplus of 2.4% of GDP in FY 2000 into a deficit of 4.2% in FY 2003.

Many of those deficits were incurred despite the fact that the economy was doing well. In 1984, Ronald Reagan ran a deficit of 4.8% of GDP while the economy grew at a rate above 7%. George W. Bush proposes to run a deficit of $475 billion (plus the cost of operations in Iraq) next year while estimating that the economy will grow at a 3.7% clip.

From Ronald Reagan’s first budget through George W. Bush’s FY 2004 budget, the total debt incurred under Republican-submitted budgets is $3.54 trillion dollars. By way of comparison, the debt incurred under budgets submitted by Presidents Carter and Clinton was $192 billion, or about 1/18th of that incurred under Presidents Reagan, Bush and Bush.

How much interest do we pay each year on that $3.54 trillion? For FY 2002, we paid interest on the national debt at a rate of about 5.3%. See here and here for the data from which the interest rate can be calculated.

At that rate, the interest on the debt amassed under Presidents Reagan, Bush and Bush runs about $187 billion per year. Interest on the Carter and Clinton debt is about $10 billion per year.

The House and Senate are currently in conference over a bill to add a prescription drug benefit to Medicare. The President has insisted that the price of that benefit be held to $400 billion over ten years. Over the same ten-year period, we will pay more than four times that amount ($1.87 trillion) in interest on the Reagan/Bush/Bush debt.

Interest on the RBB debt is more than three times the amount the Federal government spends on education. It is larger than President Bush’s 2001 tax cut (over the ten-year period of the tax cut). It is about 250 times the amount spent on autism research.

The interest on the RBB debt is greater than the combined discretionary spending for the Departments of Agriculture, Commerce, Energy, Homeland Security, Interior, Justice, Labor, Transportation, Treasury, the Corps of Engineers, EPA, the National Science Foundation, NASA, and the Small Business Administration.

President Bush is fond of reminding us that he cuts taxes because “it’s your money.” The debt is yours, too. There are about 100 million households in the United States. On average, each household pays $1,870 per year (or about $150 per month) for interest on the RBB debt.

It is about time that Republican presidents learned the wisdom of the Tao of Deb.

2003-07-24T23:42:00.000-04:00

Address Changes

AutismWatch has moved to Movable Type. Please change your bookmarks. Emily has a number of great posts up there. I hope to contribute to AutismWatch again soon. So far, I have been unable to figure out how to post in MT. Life is hard for the technology challenged.

Natasha's The Watch has also moved. One of the nice things about participating in the blogging community is the opportunity to learn about subjects that do not ordinarily cross my path. Natasha has a great post about Brazil nut trees and the ecosystem of the rain forest. That is blogging at its best. Please make a note and pay her a visit at her new digs.

2003-07-24T15:06:00.000-04:00

Who Burned Valerie Plame?

Via Tom Spencer I learned that the Senate Intelligence Committee will investigate the outing of CIA agent Valerie Plame.

If you have not been following this story, you should start. The best coverage of it has been by Mark Kleiman. Try here, here, here, here, here, here, and here.

In short, Former Ambassador Joseph Wilson was asked to go to Niger to investigate rumors that Iraq was trying to buy uranium from the African country. A few weeks ago, he wrote an op-ed (now behind the $ fire wall) in the New York Times that jump started the current brouhaha about George Bush telling whoppers in the run up to the war in Iraq.

The administration was none too pleased with Mr. Wilson. George Tenet took a few shots at him. Ari Fleisher took a few shots at him. All of that was sort of the normal rough and tumble of politics in Washington.

On July 14, the issue went to another level with the publication of a column by Robert Novak. Novak reported as follows:

Wilson never worked for the CIA, but his wife, Valerie Plame, is an Agency operative on weapons of mass destruction. Two senior administration officials told me Wilson's wife suggested sending him to Niger to investigate the Italian report. The CIA says its counter-proliferation officials selected Wilson and asked his wife to contact him. "I will not answer any question about my wife," Wilson told me.

The outing of an undercover CIA operative is serious business. Newsday reports as follows:

A current intelligence official said that blowing the cover of an undercover officer could affect the officer's future assignments and put them and everyone they dealt with overseas in the past at risk.

George Bush thinks that protecting intelligence operatives is important as well. Shortly after the 9/11 attacks, Mr. Bush said:

Any sources and methods of intelligence will remain guarded in secret. My administration will not talk about how we gather intelligence, if we gather intelligence and what the intelligence says. That's for the protection of the American people.

In October of 2001, Mr. Bush said:

I mean, when the classified information first seeped into the public, I …said, this can't stand. We can't have leaks of classified information. It's not in our nation's interest.

But we're now in extraordinary times. And I was in the -- when those leaks occurred, by the way, it was right before we committed troops. And I knew full well what was about to happen. And yet, I see in the media that somebody, or somebodies, feel that they should be able to talk about classified information. And that's just wrong.

In addition to putting people at risk, the outing of an undercover CIA agent is a felony. Jeff Cooper provides the relevant law:

Whoever, having or having had authorized access to classified information that identifies a covert agent, intentionally discloses any information identifying such covert agent to any individual not authorized to receive classified information, knowing that the information disclosed so identifies such covert agent and that the United States is taking affirmative measures to conceal such covert agent's intelligence relationship to the United States, shall be fined not more than $50,000 or imprisoned not more than ten years, or both.
- 50 U.S.C. section 421(a)

Novak makes plain that the information was an outing of Plame and not the result of investigative digging. Newsday reports:

Novak, in an interview, said his sources had come to him with the information. "I didn't dig it out, it was given to me," he said. "They thought it was significant, they gave me the name and I used it."

David Corn in the Nation confirms that the story was handed to Novak:

Novak tells me that he was indeed tipped off by government officials about Wilson's wife and had no reluctance about naming her. "I figured if they gave it to me," he says. "They'd give it to others....I'm a reporter. Somebody gives me information and it's accurate. I generally use it." And Wilson says Novak told him that his sources were administration officials.

So, it appears that two “senior administration officials” committed a felony and endangered national security operations in order to disparage an administration critic. That is a real scandal. The leakers should be identified, charged and tried.

Who are the “two administration officials”? There are not a whole lot of possibilities. The two people outing Valerie Plume had to have high security clearances or they would have no way to know that she was a CIA agent.

Tapped tells us that the term “senior administration officials” is a term of art:

"Senior administration officials," as many of our readers know, is a term of art used by both the press and by the administration. When reporters cite "senior administration officials," they generally mean the vice-president, the cabinet secretaries, those with cabinet-rank, the chief of staff, maybe the deputy chief of staff, and a couple of other really senior advisors. It's a fairly limited pool. Likewise, the White House will sometimes offer briefings with top officials -- sometimes even to groups of journalists -- on the condition that they be identified only as "senior administration officials."

The group described by Tapped also happens to be a subset of the people with the type of security clearances necessary to have the information that Plame was an undercover CIA agent.

How can we narrow down the list to actually identify the felons?

Fortunately we have recent precedent for how to do it. In the summer of 2002, a closed door briefing of the House and Senate Intelligence Committees discussed the fact that the National Security Agency had intercepted two specific messages of Al Qaeda on September 10, 2001 but did not translate the messages from Arabic until after the 9/11 attacks. That information soon leaked. See here and here.

The Senate cooperated in the subsequent investigation of the leak:

The Justice Department sent a letter to the Senate counsel's office Aug. 7 requesting that members of the Senate committee and their press staff submit telephone logs, memos, visitor sign-in sheets and other material showing communications with the news media between noon June 18 and 3:15 p.m. June 19, when CNN broadcast details of the intercepts.

The letter also called for calendars, appointment books and e-mails for the senators and their press staff during that period. No similar request was made of House Intelligence Committee members.

Contacted Thursday by The Associated Press, the offices of 13 of the 17 committee members said they are complying with the request. No office said it wasn't. In the other four offices, information wasn't available because the senator was traveling.

The committee's chairman, Sen. Bob Graham, D-Fla., has instructed his staff to compile the material requested, said his spokesman, Paul Anderson.

Anderson said Graham supports the FBI investigation because the leak of classified information violated the law.

The outing of Valerie Plame is also a violation of law.

The administration should cooperate with any Congressional investigation. It can begin by turning over “telephone logs, memos, visitor sign-in sheets and other material showing communications with the news media” as well as “calendars, appointment books and e-mails” for all executive branch employees with the security clearance needed to know of Ms. Plume’s undercover role and who fit the definition of “senior administration officials.”

That, of course, assumes that the administration actually wants to identify the felon in its midst who was willing to compromise national security to punish an administration critic.

2003-07-24T14:41:00.000-04:00

Focus The Mind

Kevin Drum has often remarked at how difficult it has been for him to get solid data on the issue of tort reform in the context of medical malpractice suits.

Via the Bloviator, I learned that Kevin’s frustration was shared by certain legislators in Florida.

Florida Governor Jeb Bush, like his brother, is pushing for legislation that would establish a $250,000 cap on awards for non-economic damages as a “solution” for the medical malpractice insurance “crisis.”

Jeb Bush called a Special Session of the Florida Legislature to consider the measure. A number of Florida State Senators felt that they were having a difficult time getting straight answers to their questions.

They then took an obvious but rare step. They required the witnesses to swear an oath to tell the truth before testifying.

In Florida, witnesses before the Legislature rarely have to swear to tell the truth. According to this report, it was only the “third time in the past decade that witnesses were sworn, other than cases in which agency heads testify at confirmation hearings.”

According to one columnist:

What happened after that "was pretty scary," said Sen. Ron Klein, D-Boca Raton, the Senate minority leader.

"People who had testified before us on previous occasions got up there and told us different things."

Among the revelations (culled from various articles and columns) that occurred after the lobbyists were faced with possible penalties for perjury:

* "I am not aware of any instance where we said the problem was the enormous amount of frivolous lawsuits," said Jeff Scott, legal counsel for the FMA (Florida Medical Association).

* When Sandra Mortham of the Florida Medical Association testified, Campbell demanded to know why Mortham had blamed "frivolous lawsuits" for the rise in malpractice rates. "Certainly, I've never said that," replied Mortham, a former House member from Largo and the FMA chief executive officer. "I don't feel I have the information to say whether or not there are frivolous lawsuits in the state of Florida."

* A state regulator said no, there hasn't been an explosion of frivolous lawsuits.

*Witness after witness denied a crush of frivolous lawsuits has crippled the state's medical malpractice tort system.

* We fixed the frivolous lawsuit problem" in past legislative sessions, testified Bob White, president of First Professionals Insurance.

* Insurers didn't need a cap on jury awards to be profitable.

* State data shows malpractice claims have not skyrocketed and that Florida has more physicians than ever.

* There has been no sharp rise in medical malpractice settlements made by insurance companies.

* A state insurance regulator surprised senators by saying he often depended on insurance companies' information when deciding whether to raise rates.

*Contrary to stories of doctors quitting the business, the number of licensed doctors is increasing. A Health Department official said new applications for new medical licenses in Florida rose from 2,261 in fiscal 2000 to 2,658 in fiscal 2003.

*Bob White, president of First Professionals Insurance Co., the state's largest malpractice insurer, surprised senators by blaming rising premiums mainly on new medical technologies and procedures...

*The hearings also revealed that White's company pays $500,000 a year as an "endorsement fee" to the Florida Medical Association, the doctors group that rallied for the cap.

*First Professionals was lobbying for the damages cap at the same time it has “boasted to stockholders of its profits in Florida.”

* The Florida Medical Association received $4.5 million in endorsements from insurance companies to lobby for tort reform. That represents about 10% of the FMA budget.

It seems that the prospect of spending a few years incarcerated in the Florida penal system for perjury tends to focus the minds of the lobbyists/witnesses on the truth.

Update: I notice that Kevin Drum is also writing about the Florida revelations.

2003-07-24T04:40:00.000-04:00

Hey Big Spender

I noted the following comment by David Brooks, Senior Editor of the Weekly Standard during his recent appearance on PBS’s News Hour:

DAVID BROOKS: The problem for me is when the economy recovers and the deficits don't come down because we should be stimulating the necessity when we are in a situation like this. I have my doubts that the deficit is going to come down as the White House projects it will over the next few years. We have the Medicare plan, a whole bunch of spending stuff, defense, homeland security. And I have a feeling the deficit is going to continue to grow. This year ....

RAY SUAREZ: This year's forecast, even with the tax cuts factored into the macro economy, there's a sort of ambient high level of deficit in the 200 million that remains to the end of the decade.

DAVID BROOKS: Right now the deficit is 4.2 percent of GDP that they're projecting for this year; that's about normal when you are running a recession. Then it's supposed to come down according to projections to about 1.8 percent of GDP, which would be great. My question is will it really? One of the things we've learned is that Democrats are better at controlling spending than Republicans. Bill Clinton's growth domestic spending was a lot lower than George W. Bush's or George H. W. Bush's were. And so I have a feeling the Republicans are going to spend. (Emphasis added).

I am glad we finally got that straight.

2003-07-22T15:51:00.000-04:00

Frivolous Suits and Improper Purposes

I have previously commented that the popular notion that plaintiffs receive large judgments and settlements as a result of frivolous suits is largely myth.

That is not to say that frivolous suits are not filed. Many are filed. My point is that overwhelming majority of frivolous suits just lose. They lose on motions to dismiss. They lose at summary judgment. They suffer directed verdicts. They lose before juries and they lose on appeal.

There is one circumstance in which frivolous suits can lose and the plaintiff still win. That circumstance is when the objective of the suit is other than actually prevailing on the merits in court.

For instance, pharmaceutical companies have a monopoly on patented drugs for a specified period of time. One quirk in the law is that if a company sues a generic manufacturer for patent infringement, the patent holder gets an automatic 30 month extension of the patent by simply filing suit regardless of whether or not the suit has merit. See this NY Times editorial:

Some brand-name manufacturers have been extending the effective lives of their patents by tactics that are underhanded at best and appear fraudulent at worst.

Ordinarily manufacturers are granted patents that give them a monopoly for 20 years, which is ample time to recover development costs and make a profit before generic competitors are allowed on the market. But through loopholes in current law, the companies can get an automatic 30-month extension simply by filing suit against a generic manufacturer asserting that the generic product will infringe secondary patents on packaging and other minor items.

In some cases, manufacturers have been able to get even longer extensions by filing multiple patent-infringement suits. A study by the Federal Trade Commission issued in July cited eight cases since 1982 where brand-name companies got additional delays, beyond the first 30-day stay, ranging from 4 to 40 months. In the four cases that have reached a court decision, the brand-name manufacturers lost each time, suggesting that their suits were little more than legal ploys to gain additional time to reap monopoly profits, not serious litigation.

The purpose of those suits is not to win the patent infringement case but rather to extend the life of the patent on profitable drugs. As long as the litigation costs are lower than the profits earned by the extension of the monopoly, the suit makes economic sense regardless of whether it has legal or factual merit.

Via Ampersand I learned of another suit that may be frivolous legally but might succeed in accomplishing other objectives.

Oakhurst Dairy of Portland, Maine chooses not to sell milk from cows that have been given artificial hormones.

Oakhurst requires each of its milk suppliers to sign an affidavit swearing that they do not give their cattle artificial hormones. The affidavit must be updated every six months. Oakhurst pays a premium for milk from cows that are not given hormones. Last year, the premium amounted to about half a million dollars.

Oakhurst advertises the fact that its milk comes from cows that are not given artificial hormones. Oakhurst’s milk has a label proclaiming “"Our Farmers' Pledge: No Artificial Growth Hormones."

Oakhurst’s policy was implemented in reaction to consumer preference. Oakhurst’s President is quoted as follows:

Consumers have let us know since the advent of these artificial growth hormones that they don't want to have to worry about (them). If consumers tell us they don't want anything added to the milk, or if they have a concern about something, we're going to respond to them as a company.

Oakhurst had revenues of about $85 million in 2002. It employs 240 people. It is not a large company.

Monsanto is a large company. According to its 2002 Annual Report, Monsanto had revenue in excess of $4.6 billion.

Among Monsanto’s products is an artificial hormone given to cattle to help increase milk production.

Monsanto took exception to Oakhurst’s “no artificial hormone” policy and filed suit against Oakhurst. According to one report:

The suit against Oakhurst claims unfair competition, unfair business practices and interference with advantageous business relationships. According to the suit, the business relationships between Monsanto and dairy producers who use the artificial growth hormone have suffered because the farmers will stop using the treatments.

Another report notes:

Monsanto claims that Oakhurst is misleading customers with labels and a marketing effort that includes the statement, "Our farmers' pledge: No artificial growth hormones."

Monsanto said Oakhurst's slogan implies there's something wrong with milk produced by cows that have been injected with the growth hormones, even though the federal Food and Drug Administration has found that the milk is not affected by the hormones.

Does giving dairy cows Bovine Growth Hormone make their milk any less safe? I do not have a clue. The FDA approved the use of BGH here but it is banned in Canada and Europe.

An Oakhurst spokesman makes clear that he doesn’t know either:

"We have said from the beginning that we make no claims to understand the science involved with artificial growth hormones," he said. "We're in the business of marketing milk, not Monsanto's drugs."

I think that Monsanto’s claim is frivolous. First, it has not been alleged that Oakhurst’s claim that its milk is from dairy cows not injected with artificial hormones is false. Thus, the statement on its milk jugs is perfectly accurate. Secondly, Oakhurst makes no claims that its milk is safer than milk from cattle treated with BGH. It makes no mention of Monsanto or any Monsanto product.

Oakhurst is simply responding to customer preference. It is using advertising to accurately state the nature of its product. It is doing so in an effort to distinguish its product from other, similar products. That is what advertising is supposed to do. It is hard for me to see how Oakhurst did anything other than promote its product through truthful advertising.

I predict that Monsanto’s suit will go down in flames if Oakhurst chooses to fight.

The amount of additional revenue Monsanto would earn if Oakhurst accepted milk from dairy cows treated with BGH is tiny. The effect of such revenue on the bottom line of a company the size of Monsanto is infinitesimal. Why would Monsanto incur the costs of suing to stop one small dairy in Maine from advertising artificial hormone free milk?

One report suggests an answer:

To some Maine dairy farmers, there's clear reason why Monsanto Corp. sued Oakhurst Dairy last week over its marketing of milk produced without artificial hormones: Monsanto is staging a last-ditch effort to save a product that seems to be losing favor among New England farmers and consumers alike.

"They're doing this out of desperation," said John Nutting, a dairy farmer from Leeds and former state legislator. "Most of us farmers don't want to do anything to cause concerns among consumers." ...

The chemical industry as a whole, though, worries that resistance to bioengineered food products - rampant in Europe and some other regions - could spread to the United States. American consumers have been buying more products that are marketed as organic or all-natural in recent years.

It appears that Monsanto may be using litigation not to vindicate its rights but rather to intimidate. Monsanto may hope to gain not from the success of the suit but rather from the costs such a suit will impose on Oakhurst. The cost of winning the suit may be more than Oakhurst can afford.

Monsanto may be trying to send a message not only to Oakhurst, but also to many other small dairies. The message might be “If you advertise that your milk is from hormone free cows, you will have to spend a lot of money on lawyers instead of your business.” If that is in fact Monsanto’s intent, the suit was brought for an improper purpose.

Will Oakhurst spend the money to fight Monsanto? Oakhurst is clearly concerned about litigation costs:

Yet Bennett (President of Oakhurst) noted … what could be an expensive legal battle with a much larger company.

"That's a $4 billion company and one that's losing a lot of money," he said. "When a company that size brings a lawsuit against a little company like ours, sure I'm concerned, because who knows how much it will cost to litigate. But we feel very strongly that we're doing the right thing."…

Frivolous litigation is often discussed only in the context of personal injuries claims. Some frivolous and abusive litigation arises in completely different contexts. To close, I would like to pose one question.

Will a cap on damages for pain and suffering do anything whatsoever to prevent the type of frivolous litigation exemplified by suits designed only to extend drug patents or intimidate small dairies?

2003-07-22T13:03:00.000-04:00

Autism and Head Circumference - The JAMA Article

The Journal of the American Medical Association recently published a study of autism and head circumference. The JAMA article is here.

Previous studies had noted that autistic toddlers had larger heads than other kids. Other studies, apparently, have shown that in the early years, head circumference is indicative of brain size.

The authors of the JAMA study, Dr. Eric Courchesne, Dr. Ruth Carper and Dr. Natacha Askoomoof set out to determine:

whether pathological brain overgrowth precedes the first clinical signs of autism spectrum disorder (ASD) and whether the rate of overgrowth during the first year is related to neuroanatomical and clinical outcome in early childhood.

The researchers located 48 autistic kids, aged 2-5, for whom MRIs showing current brain size were available. They then gathered the medical records for those kids including head circumference records (as recorded by pediatricians) at birth and at various other age milestones.

The study compared the growth in head circumference of the autistic kids to national databases.

The results of the comparisons showed that the autistic kids were born with below average head circumferences (and by inference, smaller sized brains) but that by the time the kids were 6-14 months old, their brains were larger than average.

As the study’s conclusion notes:

Specifically, we found a rapid and excessive increase in HC measurements, and therefore, presumably, brain size, beginning several months after birth. This abnormally accelerated rate of increase in HC measurements in infants with ASD was evident in comparisons to 2 nationally recognized normative databases, one a national cross-sectional survey and the other a longitudinal study of growth patterns in healthy infants. In our study, head size increased from the 25th percentile based on the CDC averages of healthy infants to the 84th percentile in 6 to 14 months. This excessive increase occurred well before the typical onset of clinical behavioral symptoms.

The study also showed that among its sample group, the rate of increase in head circumference was correlated with the severity of the autistic behaviors:

Among the infants who have the more severe form of autism, 71% showed increases during their first year of more than 1.5 SDs, with 59% showing increases between 2.0 and 4.3 SDs. Such high percentages were not observed in the typically developing infants in the Fels Longitudinal Study sample.

For some autistic kids, brain size development appears to be abnormal. They are born with smaller brains and then undergo rapid brain growth.

The JAMA study is important for two reasons. First, the suggestion that autism is related to abnormal brain growth gives a clue to the neurobiological causes of autism in some people. Those clues could, someday, result in treatment for some autistic people. As a Newsweek article says:

“The abnormal growth patterns give you a clue that something is amiss,” says Dr. Margaret Bauman, a neurologist at Harvard Medical School and the LADDERS Autism Research Foundation, “but we can only guess at the underlying process.”

Courchesne believes it can be summed up in three words: “growth without guidance.” Normal brain development is not a monologue but a dialogue, in which the brain generates neural circuits and the child’s experiences determine which ones survive. The first year of life is a critical period for this “experience-guided growth”—and it’s not hard to see how a sudden shift into high gear might derail it. The brain’s circuitry would expand haphazardly as cell growth outpaced experience, creating a chronic sensory overload. Courchesne hopes researchers will now confirm the dangers of unregulated brain growth by inducing it experimentally in animals. “Once we know what causes this growth defect,” he says, “it may be possible to use biological treatments to counter it.”

The difficulty, of course, is that we do not yet know either the cause of abnormal brain growth nor the mechanism by which abnormal brain growth might result in autistic behaviors. Much more research is needed.

The study is also potentially important as a kind of early warning system for autism. The abnormal brain growth occurs well before the onset of autistic behaviors in some children. If we note the abnormal brain development, some treatments, such as Applied Behavioral Analysis, could begin even before autistic behaviors emerge. It is well known early intervention is important to successful outcomes with autistic kids. The study touts that potential benefit:

This is the first study to our knowledge to find a potential early warning neurobiological sign for autism and to link it to a later brain abnormality.

The difficulty with the early warning system is that it is not a very good predictor. Many non-autistic kids also show the same brain development pattern as autistic kids. The Newsweek story notes the following:

The more immediate goal is simply to recognize autism at earlier stages, and to give affected kids the support they need to grow and learn and cope. Will the new findings advance that cause? Dr. Janet Lainhart, an autism expert at the University of Utah, is skeptical. “The findings... are most useful to researchers attempting to define the underlying developmental neuropathology of autism,” she writes in |a commentary on the San Diego study, “rather than to physicians trying to identify young children with autism.” That’s because rapid head growth can signal other childhood maladies, including tumors and hydrocephalus, and often means nothing at all. Lainhart calculates that if doctors used head circumference as a screening test for autism, they would pick up 60 healthy children for every autistic one.

Some media reports have hyped the JAMA study. News reports often fall into the trap of assuming that austism is one thing with one cause. As I have noted before, autism may in fact be a lot of different things with a lot of different causes.

For instance, the Washington Post reports:

The research also provides further evidence contradicting the theory that autism could be triggered by vaccinations given just before age 3.

That simply is not true. It might be true if the cause of autism could only be either abnormal brain growth or vaccines. If there are multiple causes of autism, abnormal brain growth might be a cause in some autistics while mercury exposure or the MMR vaccine (and a number of other things) could cause autism in other people.

A number of studies have shown dramatic increases in the incidence of autism. Unless some external factor other than genetic predisposition is causing abnormal brain growth, it is hard to square the increase incidence of autism with brain growth being the one and only cause. For instance, neither Mary Beth’s kids nor my son experienced the head circumference pattern identified in the study.

The JAMA study advances our understanding of autism. The JAMA study may point the way to further research that will result in an understanding of the neurobiological basis for the behaviors of some autistics.

Despite the breathless tone of some media reports, the JAMA study is not a silver bullet that unlocks the mysteries of the causes of autism. The study is important because it identifies one piece of a complicated puzzle. It is a step and a step in the right direction but it is not the entire journey. The JAMA study very important for what it actually is. It does not need to be hyped.

2003-07-20T15:12:00.000-04:00

Choose Wisely

I have been spending some time with OMB’s Mid-Session Review. Let’s play a little game of Make a Budget based on that document. Please choose wisely.

For our game, let’s make a budget for Fiscal Year 2004 which begins October 1, 2003. That is a good choice for our game as it should be relatively easy to make a budget for FY 2004. FY 2004 comes almost two years after the end of the shortest and shallowest recession in memory. Second, the administration estimates economic growth for FY 2004 to be a very respectable 3.7%. Third, interest rates are at historic lows. Low rates reduce the cost of government borrowing. Fourth, FY 2004 comes well after Mr. Bush stood on the deck of an air craft carrier and announced the Iraq war over. Finally, the FY 2004 budget comes during the period in which the administration promised 5.5 million new jobs from tax cuts (and the normal performance of the economy) on top of the 300,000 new construction jobs that the administration promised from the terrorism insurance bill. Given all of those positive factors, it should not be hard to make a budget.

The game works this way. We take the all government receipts as estimated by OMB in its Mid Session Review and try to balance the operating budget of the United States. In the 1990s, a consensus developed that the Social Security surplus should be used to pay down debt in order to prepare for the retirement of the baby boomers. Almost every politician of both parties promised to do so, including, famously, George W. Bush. Thus, it would be inappropriate to use the Social Security surplus for purposes other than paying down debt.

To play, you start with $1,797,000,000,000. That is OMB’s estimate of FY 2004 receipts of the Federal Government from individual income taxes ($786.6 billion), social insurance and retirement receipts ($748.6 billion), corporate income taxes ($144.1 billion), excise taxes ($70 billion), estate and gift taxes ($22 billion), custom duties ($22 billion) and miscellaneous receipts ($34.1 billion). Those figures have been reduced by $30 billion for something called “revenue uncertainty.”

Almost $1.8 trillion dollars sounds like a lot of money, and it is. It is in the neighborhood of 16% of GDP. Still, fair warning, the money will go fast.

Okay, now let’s spend some money.

First up is interest on the national debt. We can hardly afford to default on our bonds. Interest costs for FY 2004 are estimated to be $165 billion or about 9% of your bankroll. You now have $1,632 billion left to spend.

Do you want to fund the military? If so, it will cost you $409 billion. That is 23% of your starting total. After funding the military you have $1,223 billion left to spend.

Next up is Social Security. That is the third rail of American politics. Touch it and you die. Neither party is currently advocating serious cuts in Social Security benefits. President Bush’s proposal to partially privatize Social Security without cutting benefits makes the budget harder, not easier, to balance. If we fund Social Security at the levels proposed by the administration, the cost is $492 billion. You have $731 billion left.

Remember though, that we are not going to use the Social Security and Medicare surpluses to fund current operations. OMB’s estimate of the “off budget surplus” is $164 billion. You have $567 billion remaining.

The political consensus these days is to expand not cut Medicare benefits. Memories of the gray brigade attacking Dan Rostenkowski’s car remain vivid. If you choose to fund Medicare, it will cost $259 billion. You have $308 billion left.

How about a Medicaid program to fund health care for the poor? Medicaid pays for nursing home costs for lots of elderly folks. Medicare does not pay for long term care. Maybe we should just put the burden of care for the elderly on their families. If we do, two earner families may have to forego one income stream in order to have someone stay home with their parents. Also, if we do not fund Medicaid, poor folks may have a hard time getting basic health care. The price tag for Medicaid is pretty steep. If you fund it, you will spend $187 billion leaving you with $121 billion remaining to fund the rest of government.

I told you the money would go fast. You have spent one trillion six hundred and seventy six billion dollars or about 93 percent of your total on interest, military, Social Security and the medical programs for the aged and poor.

Woops, we forgot something. The military budget as outlined by OMB does not include anything for continued operations in Iraq or for the reconstruction of Iraq. We are spending $3.9 per month in Iraq now. If that spending continues throughout FY 2004, that will cost an additional $46.8 billion. I am sorry not to give you a choice about that funding but the consequences of simply pulling out of Iraq are too great and it is money we have to spend. You are left with $74.2 billion to fund the remainder of government.

We cannot forget the Homeland Security Department. That costs $28 billion for the non-military portion.

In the mid 1990s, the Republicans were fond of calling for the elimination of the Department of Education. President Bush has decided to expand education spending. If you decide to leave no child behind the price tag for the department is $53.2 billion. Uh oh, the Homeland Security and Education spending put you over budget.

Sorry, no more government programs. If you plan to visit Washington this summer for vacation, don’t fly as their will be no air traffic controller to guide your plane. The train is not an option as Amtrak will not be running. If you drive, watch out for potholes as we have not funded highway repairs or construction. Once you get to Washington, do not try to visit the Smithsonian or the memorials. They will be closed.

The White House will have no speech writers or staffers to blame for what comes out of the President’s mouth. Congress will have no funds for Congressmen, staffers or even to print legislation.

While North Korea builds nuclear weapons, we will not have the money to pay for Colin Powell to fly anywhere for talks. We did not fund the State Department. Mr. Bush’s program to fight AIDS in Africa must fall to the wayside.

Be sure to tell our veterans they will not be receiving the benefits we promised them when they put their lives on the line to protect our freedoms and interests.

We forgot to fund the Justice Department’s $25.1 billion. So we just do without an FBI or any federal prosecutors. Martha Stewart and every federal prisoner will get a get out of jail free card. The Security and Exchange Commission will not keep crooks from defrauding you out of your investments. The Supreme Court will not be hearing cases.

Tell NASA, the CDC, the National Institute of Health and the National Science Foundation to close their doors. Make sure to turn out the lights when we close Yellowstone and the rest of the National Parks.

Do you live near a flood plain or a lake? Sorry, the Corps of Engineers is out of business.

Do not expect Big Bird or Elmo to entertain and educate your kids.

Oh, by the way, we did not fund the EPA so making sure your air and water are clean is up to you. Learn how to inspect meat because the Agriculture department will not be doing it.

You will no longer be troubled by those bad unemployment reports. Neither Commerce nor Labor will be collecting the data. If you lose your job, no unemployment check will be in the mail.

We are entering the fat part of the business cycle. It is time to prepare for the retirement of the baby boomers and get our fiscal house in order.

When Ronald Reagan faced huge budget deficits and the fiscal challenges of the retirement of the baby boomers, he raised taxes. When George H.W. Bush faced large structural deficits, he raised taxes as part of deal that also restrained spending. Bill Clinton faced down the deficits and turned them into surpluses in part by raising taxes on the wealthy and restraining spending growth.

George W. Bush promised to keep the operating budget in balance and pay down all publicly held debt to prepare for the retirement of the boomers. Instead he has reacted to a deteriorating fiscal situation by cutting taxes and going on a spending spree.

We have several choices. We can retract some of the tax cuts. We can make cuts in popular and effective programs like Social Security and Medicare. We can do a little bit of both. Alternatively, we can hide our head in the sand and pass the pain down to the next administration. Mr. Bush has chosen the last alternative. Is that a wise choice?

2003-07-19T01:06:00.000-04:00

Bill O’Reilly and Rumplestiltskin

Bill O’Reilly wants you to believe in Rumplestiltskin. Rumplestiltskin was the little man who could spin straw into gold. Bill O’Reilly is spinning madly hoping you will think that Rumplestiltskin can turn enough straw into gold to balance the budget.

In his latest column, O’Reilly professes to be concerned about the budget deficit. He argues that the budget deficit is caused by silly, frivolous spending:

The Bush administration is facing $450 billion dollars of red ink because it spends money the old fashioned way: Like Imelda Marcos…

In some quarters it is popular to argue that the budget deficit is a function of those silly politicians funding all manner of stupid programs. If only the politicians would show a little common sense and cut the frivolous spending we could balance the budget and cut taxes at the same time. That argument has about as much truth as the Rumplestiltskin fairy tale.

O’Reilly for instance, points to three programs he finds silly. First is a NIH funded study of sexual matters. According to O’Reilly, that study costs $1.5 million. Next is an administration proposal to spend $300 million to promote marriage. His third example, the cost of which he does not specify, is a study of female arousal.

From those three examples, O’Reilly argues that the deficit is caused by “funding useless, nonsensical programs designed to allow politicians to bring home the pork.”

Hey Bill, I have news. The deficit this year will be $450 Billion. That’s billion with a “B.” Cutting $301.5 million from programs you describe will not balance the budget. If we cut both programs to zero the deficit this year would be $449,699,500,000.

O’Reilly is just spinning. He wants you to think that we can balance the budget without raising taxes by cutting a few silly programs that no one will miss. He wants you to believe that we can turn straw into gold. He wants you to believe in Rumplestiltskin.

Is their waste in government? You bet. Does the government fund certain research projects and other programs that are a waste of taxpayer money? Of course. Should such spending be eliminated? Yes. Can we balance the budget by eliminating such programs? Not a chance.

Even a cursory look at the budget numbers shows that O’Reilly is being deeply dishonest.

OMB just released its Mid-Session Review last week. For Fiscal Year 2004, which begins October 1, 2003, OMB projects a deficit of $475 billion. If we took all non-military discretionary spending to zero, the budget would still be in deficit.

That’s right, if we eliminated all studies of sexually related material to which O’Reilly objects, all NEA funding, all basic science research, the Department of Education, the Commerce Department, the FBI, the Federal Courts, much of the Homeland Security department, closed all the National Parks and eliminated all other non-military discretionary spending, the budget would still be in deficit.

Once we pay for defense spending, interest on the national debt, and mandatory spending (such entitlements as Social Security, Medicare and Medicaid), the entire revenue of the government is exhausted.

OMB projects that for FY 2004, government revenues will be $1.797 trillion.

The defense department will consume $409 billion. Social Security, Medicare, Medicaid and other mandatory spending will amount to $1.259 trillion. Interest on the national debt will come to $165 billion. Those categories add up to $1.822 trillion. That leaves a budget deficit of $25 billion before the first non-military discretionary dollar is spent.

If we wish to balance the budget, we face tough choices. We can raise taxes or cut into programs that are popular and effective. Guys like O’Reilly want you to believe that the budget can be balanced with no pain. Unless O’Reilly knows the name of a little man who can turn straw into gold, he is just spinning you.

2003-07-17T16:16:00.000-04:00

Faith Based Budgets

I do not envy Josh Bolten. He was installed as President Bush’s Director of the Office of Management and Budget just in time for the mid-session review (the OMB report may be found here in PDF format).

Although Bolten was not in charge of OMB when the budget was developed, it fell to him to be the bearer of bad news.

First, it fell to Bolten to report that the budget deficit for this year (FY 2003) is now estimated to be $455 billion dollars plus any excess cost of operations in Iraq. That deficit far surpasses the previous record ($290 billion in 1992), and is a 50+% increase over OMB's estimate of last winter.

Secondly, it was also Bolten’s unpleasant task to announce that next year’s deficit will set another record ($475 billion plus additional costs of the Iraq operations).

At the announcement, Bolten attempted to put the bad news in context:

Let me place this year's budget in historical perspective. The most relevant number in measuring deficits is not the nominal figure. It's the deficit as a percentage of the economy, or what I just referred to as gross domestic product.

With that in mind, consider that a $455 billion deficit, while certainly higher than anyone would like, constitutes 4.2 percent of the economy. This is well below the post-World War II peak of 6 percent. And, indeed, it's lower than in six of the last 20 years.

The deficit of 4.2% of GDP is indeed only the sixth highest in the last 20 years. It is also the 6th highest in the last 45 or more years. One can almost imagine the OMB staffers gathering around Bolten, chanting “We’re not the worst, we’re not the worst. Yeah team…”

Finally, it was Bolten's lot to acknowledge that it was his boss’s tax policies that pushed the deficit to record levels:

It's important to understand that without any of the President's tax cuts, the deficit this year would be at least $278 billion…

Q Can you clarify what you just said, which is, you're saying that without the tax cuts, this year alone, or combining all three, that you would have a deficit of $278 billion, this year alone? Is that correct?

DIRECTOR BOLTEN: This year, correct. And that's fiscal '03.

Whatever sympathy I may have had for Mr. Bolten evaporated this morning when I read the New York Times:

Mr. Bolten went on to say, "I think the art and science of economics has not yet advanced to the stage where we can really properly capture all the positive effects the tax cuts do have on the economy."

What exactly does that statement mean? If tax cuts have positive economic effects, why can they not be “captured” by the “art and science of economics”? If such positive effects of tax cuts cannot be measured, how can Mr. Bolten know they exist?

Apparently, the beneficial effect of tax cuts is not a question of economics for this administration. It is, rather, a matter of religion. The administration simply has faith that tax cuts are good for the economy. If no evidence of such beneficial effects can be discovered, that is a failure of the “art and science of economics” because matters of faith are not subject to challenge.

Mr. Bolten’s statement is further proof that this administration regards economic policy and budgeting as just another faith-based initiative. God help us all.

2003-07-15T09:03:00.000-04:00

Cue David Letterman

The spin from the right is that the lie President Bush told in his State of the Union address is not important because it was “only 16 words” and, according to the Ari Fleischer spin, it “is not the core of why we went to war.”

In honor of David Letterman, we present the Top Ten reasons why Mr. Bush's lie is important. To present those reasons we turn to Jonah Goldberg of the National Review On-line with an assist from Bill Bennett. Goldberg’s quotes are here and here. Bennett’s quote is here.

Cue Jonah Goldberg:

10. “Lying matters, the truth matters”;

9. “It is always relevant”;

8. “No matter what perspective you come from, it seems hard to imagine how anyone can say that the character of the president is irrelevant”;

7. “But all of this is such an old and flagrantly obvious argument which misses the simple, old-fashioned point. Presidents should try to tell the truth and be gentlemen”;

6. It is “about his lying, his untrustworthiness, and specifically about his pathological need to have everything both ways”;

5. “Americans understand that truth telling matters, I think. I hope.

4. “We will never have all the facts at the disposal of a president, which is why philosophy and temperament are important. While a "plan" is simply a list of things that will go wrong, temperament and philosophy are predictive of how someone will act in new situations”;

3. “If you are a gifted and relentless liar in one sphere of life, you will in all likelihood be a liar in all spheres of life”;

2. “Lying goes to the heart of politics and turns it black”;

And the number one reason that Mr. Bush’s lie is important (cue Bill Bennett) is:

1) “Public office is a public trust, and people who violate it ought to be held accountable.”

2003-07-14T16:33:00.000-04:00

The Zeitgeist Changes

There is now a full-throated frenzy in the media and political Washington over President Bush's statement in the State of the Union address concerning Iraq’s alleged attempts to acquire uranium from Niger.

Kevin Drum notes the importance of the issue:

Likewise, Bush's problem is not that a single 16-word sentence of dubious provenance made it into his State of the Union address. His problem is that he promised us that Saddam was connected to al-Qaeda, he promised thousands of liters of chemical and biological weapons, he promised that Saddam had a nuclear bomb program, and he promised that the Iraqis would greet us as liberators. But that wasn't all. He also asked us to trust him: he couldn't reveal all his evidence on national TV, but once we invaded Iraq and had unfettered access to the entire country everything would become clear.

But it didn't. We've had control of the country for three months, we've had access to millions of pages of Iraqi records, and we've captured and interrogated dozens of high ranking officials. And it's obvious now that there were no WMDs, no bomb programs of any serious nature, and no al-Qaeda connections.

So while the uranium is only a symbol, it's a powerful one. George Bush says we live in an era of preemptive war, and in such an era — lacking the plain provocation of an attack — how else can the citizenry make up its mind except by listening to its leaders? In the end, we went to war because a majority of the population trusted George Bush when he presented his case that Iraq posed an imminent danger to the United States and the world.

Uranium-Gate is a symbol of that misplaced trust. If George Bush's judgment had been vindicated in Iraq, a single sentence in the State of the Union address wouldn't matter. But it hasn't, and he deserves to be held accountable for his poor judgment by everybody who believed him.

And that's why those 16 words matter.

Kevin has it exactly right. There is, however, another reason that the issue matters. The dam that has bottled up almost all scrutiny of the truthfulness of our President and his administration has been breached and it is now fair game for the media to challenge the administration’s actions, motives and pronouncements.

Brent Cunningham, in a Columbia Journalism Review article about objectivity (link via Not Geniuses) notes the following:

Finally, objectivity makes reporters hesitant to inject issues into the news that aren't already out there. "News is driven by the zeitgeist," says Jonathan Weisman, "and if an issue isn't part of the current zeitgeist then it will be a tough sell to editors." But who drives the zeitgeist, in Washington at least? The administration. In short, the press's awkward embrace of an impossible ideal limits its ability to help set the agenda.

As Bob Somerby has relentlessly and incomparably documented, the zeitgeist of the 2000 campaign reporting was that Al Gore, but not George W. Bush, had problems sticking to the truth.

That zeitgeist made stories about George Bush’s honesty “a tough sell to editors.” That “tough sell” continued after the campaign through the first part of the Bush administration.

After 9/11, any criticism of the honesty of the Bush administration was treated as an attack on the righteousness of the United States itself. In essence, the combination of the campaign zeitgeist and the need for America’s post 9/11 fears to be assuaged by the presence of a strong and honorable leader insulated the administration from media scrutiny.

Last October, the Washington Post’s Dana Milbank wrote an article called For Bush, Facts are Malleable. In that article, Milbank noted that Bush had made a number of statements in support of his policies that were “dubious.”

The article is notable not only for cutting against the existing zeitgeist but also for the careful, almost gentle, way it is written. In noting that Mr. Bush has said some things that were not true, Milbank does not call Bush a liar, but rather notes that Mr. Bush’s “rhetoric has taken some flights of fancy in recent weeks.”

Milbank goes to great lengths to provide context just short of exonerating Mr. Bush by noting that “Presidential embroidery is, of course, a hoary tradition” and describing some of that tradition with examples from previous presidents.

Even so soft a story as that provoked the administration into quick action to ensure that the zeitgeist protecting Mr. Bush from scrutiny was not breached. Two days after Milbank’s article appeared in the Post, the Post received and published a letter to the editor from none other than Presidential Press Secretary Ari Fleischer. That letter contended that Milbank’s story was “substantively flawed and a distortion of what the president has said.”

As I noted at the time, Fleischer’s letter itself contains a whopper.

It is perhaps understandable that the White House felt the need to defend itself against Milbank’s article. Milbank, after all has a large megaphone and his article chipped away at the zeitgeist preventing the president from being challenged on issues of honesty.

Even very tiny megaphones were challenged. In October, I wrote To Tell the Truth, which pointed out numerous false statements of the administration. In February, I wrote Lies, Distortions and Deception listing numerous other instances of the administration’s disregard for the truth. In each case, I received a barrage of email, mostly anonymous, questioning my honesty, virility, heritage and/or patriotism.

The power of the “Follow the YellowCake Road” story is that it may provide the first significant breach in the zeitgeist protecting Bush’s dishonesty from media scrutiny.

Since the emergence of the uranium story, Slate ran a story about how the administration handles economic data:

In economic policy even more than in war policy, the Bushies have successfully suppressed, manipulated, and withheld evidence to serve their policy purposes.

The New York Times ran a story today on the administration’s manipulation of environmental assessments:

In the last several months, the Environmental Protection Agency has delayed or refused to do analysis on proposals that conflict with the president's air pollution agenda, say members of Congress, their aides, environmental advocates and agency employees.

Agency employees say they have been told either not to analyze or not to release information about mercury, carbon dioxide and other air pollutants. This has prompted inquiries and complaints from environmental groups, as well as Democrats and Republicans in Congress.

Democrats, previously supine (particularly during the midterm election), are now openly challenging the credibility of the administration. The Times reports:

Democratic presidential candidates offered a near-unified assault today on President Bush's credibility in his handling of the Iraq war, signaling a shift in the political winds by aggressively invoking arguments most had shunned since the fall of Baghdad.

Finally, one of the chief minders of the unofficial Washington zeitgeist, Maureen Dowd, writes:

More and more, with Bush administration pronouncements about the Iraq war, it depends on what the meaning of the word "is" is.

W. built his political identity on the idea that he was not Bill Clinton. He didn't parse words or prevaricate. He was the Texas straight shooter.

So why is he now presiding over a completely Clintonian environment, turning the White House into a Waffle House, where truth is camouflaged by word games and responsibility is obscured by shell games?

The president and Condi Rice can shuffle the shells and blame George Tenet, but it smells of mendacity.

As Tapped notes about the Dowd piece:

For her to compare Bush to Clinton means that this establishment has now begun to train its guns on Bush -- and that it's now OK for other establishment Washington pundits to openly call into question the Bush administration's capacity for truth-telling.

In other words, the zeitgeist has changed.

The zeitgeist, once hardened, is difficult to change. The old zeitgeist of Bush as the plain spoken, straight shooting Texan is no longer operative. The question remains what will replace it.

The continued American casualties in Iraq make scrutiny of the administration’s war justifications very likely. The 9/11 investigative report is due out soon and it may explode a few myths the administration has been selling. Congressional investigation of intelligence agency activity leading up to the war now seems inevitable.

When the tax cut checks go out soon, Mr. Bush’s statements of average benefits may run up against reality. Someone may finally ask when the 300,000 construction jobs Mr. Bush promised would be created by the terrorism insurance bill will materialize.

If a new zeitgeist emerges to suggest that Bush is willing to manipulate economic reports, supress scientific inquiry and data, fudge the numbers, break the rules, and deceive the American people in order to get his way, that, too will be a difficult zeitgeist to break.

2003-07-13T17:58:00.000-04:00

Today’s Tour

Terry at the Nitpicker has written a fine essay on why democracy is hard. Terry argues that some Republicans do not have the necessary temperament for democracy:

They simply are not cut out for democracy. When they refuse to lay out their ideas and then confront criticism, instead opting for name-calling and misrepresentation, they debase the very idea of democracy.

My complaint with Terry’s essay is that he wrote it in Veranda 7.5 which is a bit small for these tired old eyes.

Dave Johnson of Seeing the Forest produces a consistently excellent blog. Dave makes an interesting point about the issue of Mr. Bush’s State of the Union claim that Iraq was attempting to purchase uranium in Africa. Once it became apparent that Mr. Bush’s statement should not have been included in the speech, did the administration not owe the American people a retraction?

When any newspaper worth its salt makes an error, it prints a retraction. Even bloggers retract when a story to which they have linked proves false. Are the duties owed by the President of the United States to the American people less than the duties owed by a blogger to his or her readers?

In a separate post, Dave wonders why the drive to inspire fear in the public has abated?

Remember how the terror threats were raised, and there was constant talk of the terrible dangers we faced? The public was pumped full of fear, day after day. The news was full of terrible stories about smallpox, and the horrific effects of nerve gas, even warnings about what to do if there is a nuclear explosion in your area.

But now - what happened? Where are the threats? They didn't find any weapons in Iraq, which could only mean that terrorists possess them now. Yet, the "threat level" is lowered. The budget for homeland security is reduced, but not discussed. The papers and radio and television are not warning us that terrorists will strike at any moment. What changed?

What happened to the fear?

The Chico Enterprise Record has a very good Larry Mitchell article about the difficulties faced in raising an autistic child:

Rick Rollens of Granite Bay, near Sacramento, gave up his career in the state Capitol after his son, Russell, was diagnosed with severe autism. ..

The big increase in autism cases consists mainly of the severely disabling "full-syndrome autism," which is what afflicts Russell, Rollens said. The epidemic, as he calls it, has the potential to put a huge strain on the state's resources as large numbers of autistic children grow older and need more costly services.

Rollens attests to the rigors of raising an autistic child. Often, the pressure is so great, parents split up, he said.

For years, he said, "We were literally captives, with a child who screamed for hours on end, didn't sleep and was destructive. We slept in shifts. Fortunately, my wife was at home. It was very, very difficult."

Russell, who is 12 now, is severely disabled although his behavior has improved greatly, Rollens said. "He tests in the normal intelligence range. I can ask him to get me a drink of water, and he'll do it. But he can't talk about it."

He can do many things other kids can, like ride a bike and swim. But he needs to be watched all the time. He has no sense of danger and could easily run away. He'll probably always live with his parents.

Russell's autism has profoundly affected the lives of Rollens and his wife, Janna, and also their 17-year-old son, Matthew, who's helped care for his brother for the last 10 years. The two boys are very close, Rollens said.

"We're saddened by the loss of Matthew's childhood," Rollens said, "but we took a philosophy that we weren't going to sugarcoat any of this."

As a result, Matthew is "wise beyond his years," Rollens said. Granite Bay is a wealthy bedroom community, where many teen-agers seem to have life pretty easy.

At times, Matthew has come home from school shaking his head over his classmates' griping about not getting the tee time they wanted at the golf course. "Dad, I know what real problems are," he's told Rollens.

There is much more in the article including the experiences of two other parents. It is must reading if you are interested in the effects of autism on families.

2003-07-13T13:41:00.000-04:00

Please Give

I have been publishing PLA for almost a year. During that time, I have tried to inform, amuse or persuade you. I have not hectored you to give money. At PLA, the ice cream has always been free. I have no tip jar. I run no ads. I sell no PLA gear. I post no Amazon wish list. All I have asked my readers to provide is their time and attention.

Today, I am asking for more. Blogathon 2003 will occur on July 26-27. Participants will write and post 48 entries to their blogs within a 24 hour period. The participants are asking for donations to sponsor the event. All proceeds to charity.

Two participants are particularly worthy of mention. Mary Beth of Wampum will be blogging for Cure Autism Now (CAN).

From the CAN website:

Cure Autism Now is an organization of parents, physicians, and researchers, dedicated to promoting and funding research with direct clinical implications for treatment and a cure for autism.

I have pledged $100 to Mary Beth’s efforts. It would please me greatly if PLA readers matched that pledge. Please go here, follow the links, and sponsor Mary Beth. The money you give will be put to good use and may help find a cure for autism.

Kevin of Wizbang is also participating in Blogathon 2003. His charity is the Doug Flutie Foundation. Doug Flutie is an NFL quarterback and a POA. Flutie has generously given of his time, money and his name to increase autism awareness. He has also established the Doug Flutie Foundation.

The Foundation's mission is to aid financially disadvantaged families who need assistance in caring for their children with autism; to fund education and research into the causes and consequences of childhood autism; and to serve as a clearinghouse and communications center for new programs and services developed for individuals with autism.

Please go here and follow the links to sponsor Kevin.

As was the case on my birthday, I am reminded of a passage from Harper Lee’s To Kill A Mockingbird. Jem and Scout accompany Calpurnia to church one Sunday. The collection at that service is to go to help the wife and children of the wrongly accused Tom Robinson:

Reverend Sykes closed his sermon. He stood beside a table in front of the pulpit and requested the offering… One by one, the congregation came forward and dropped nickels and dimes into a black enameled coffee can. Jem and I followed suit, and received a soft, “Thank you, thank you,” as our dimes clinked.

To our amazement, Reverend Sykes emptied the can onto the table and raked the coins into his hand. He straightened up and said, “This is not enough, we must have ten dollars.”

The congregation stirred. “You all know what it’s for – Helen can’t leave those children to work while Tom’s in jail. If everybody gives one more dime, we’ll have it.” Reverend Sykes waved his hand and called to someone in the back of the church. “Alec, shut the doors. Nobody leaves here till we have ten dollars.” …

The church was becoming stuffy, and it occurred to me that Reverend Sykes intended to sweat the amount out of his flock. Fans crackled, feet shuffled, tobacco-chewers were in agony.

Reverend Sykes startled me by saying sternly, “Carlow Richardson, I haven’t seen you up this aisle yet.”

A thin man in khaki pants came up the aisle and deposited a coin. The congregation murmured approval.

Reverend Sykes then said, “I want all of you with no children to make a sacrifice and give one more dime apiece. Then we’ll have it.”

Slowly, painfully, the ten dollars was collected. The door was opened, and the gust of warm air revived us.

Unlike Reverend Sykes, I cannot lock the door until you make a donation and I will not name names… yet.

Take out a crowbar, pry open your wallet and make a donation. Please give to help the autistic kids and their families.

2003-07-11T00:01:00.000-04:00

Blog Humor

I never took many science classes in college. I was always afraid that the science classes would just be too hard for my brain to handle. Natasha at The Watch is completing her botany class. How has her brain held up?

Note: Approaching the End (of my botany class), and the Season of Testing. I now know an appalling number of things about plants, but not nearly enough yet, and I'm working on a plan to use them to take over the world. Or maybe save it. I haven't decided.

Natasha, if you decide to take over the world, I recommend using the Pottsylvania Creeper.

Tucker Carlson of CNN’s Crossfire promised that if Senator Clinton’s Living History sold more than a million copies he would eat his shoes. Living History has passed the million mark in sales leaving Carlson in a difficult position.

Senator Clinton graciously let Carlson off the hook by appearing on Crossfire and presenting him with a chocolate cake baked in the shape of a shoe. A right wing-tip, of course.

Carlson responded to Senator Clinton’s kindness by comparing her to the Cambodian murderer Pol Pot.

Jesse of Pandagon notes that Tucker Carlson is the type of guy who would come to a dinner party and remark "Excuse me, but this filet mignon is so divine I wouldn't care if Hitler made it!"

Carlson has a lot of class, all third.

The Poorman gets interviewed by Tim Russert on Meet the Press. Just read it.

2003-07-10T02:52:00.000-04:00

Forced Vaccinations – Anthrax

My previous discussions of forced vaccinations focused on infant vaccines and the risk of autism. That is not the only issue with regard to forced vaccinations.

The military is forcing soldiers to be vaccinated against anthrax. According to this report, the military’s experience has shown that 84% of recipients of the vaccine have experienced “minor reactions” to the vaccine. More troubling is the following:

A September 2002 U.S. General Accounting Office survey of 1,253 soldiers who received the anthrax vaccination found that … at least 24 percent had major multiple "systemic" reactions, the latter more than 100 times higher than the estimate of the manufacturer.

First Lt. Erick Enz, a Marine helicopter pilot, refused to be vaccinated. He faced a court martial and pled guilty to disobeying the order of a superior. Enz was sentenced to seven months in prison (he faced a possible sentence of five years) as well as expulsion from the Marine Corps.

While the Marine Corps can not have officers deciding which orders they intend to obey, my question is how did the Corps decide that 24% “major multiple systemic” reactions was an acceptable price to pay for the benefits of anthrax vaccinations?

2003-07-09T18:07:00.000-04:00

Economic Performance and Political Party of the President

Jane Galt has an interesting post responding to the listing of employment growth by Presidents. The list she cites is similar but not identical to the list I posted. My list:

1) Roosevelt (1933-45): +5.3%

2) Johnson (1963-69): +3.8%

3) Carter (1977-81): +3.1%

4) Truman: (1945-53): +2.5%

5) Kennedy (1961-63): +2.5%

6) Clinton (1993-2001): +2.4%

7) Nixon (1969-75): +2.2%

8) Reagan (1981-89): +2.1%

9) Ford (1975-77): +1.1%

10) Eisenhower (1953-61): +0.9%

11) Bush (1989-93): +0.6%

12) Bush (2001-present): -0.7%

13) Hoover (1929-33): -9.0%

That list is suggestive because job growth was higher under all six Democratic Presidents than under any of the seven Republican Presidents.

Jane rightly argues that too much should not be made from a listing of a single measure of economic performance. She also argues that the data could be misleading for a variety of reasons.

I am pleased with the direction of the argument. Not so long ago, folks like Glenn Reynolds were arguing that “the left’s” economic policies had been shown to be “utterly wrong”. Now the argument is whether the data clearly shows Democratic superiority on economic issues.

There is an old saying in the law that “I’ll take the judgment, you can have the appeal.” In the political/economic debate, I am happy to have the data support my position and allow others to explain why the data is misleading.

I found several of Jane’s arguments to be interesting. For instance, at one point she seems to argue that the results of the job growth data could be the result of random chance:

Just to point out that when you see a little statistic like this, there's usually a bigger picture you're missing. And especially with presidents, where the meaningful data set is far too small to separate out the effects of chance from the effects of policy, it's very hard to draw meaningful conclusions.

While I do not disagree with Jane’s larger point that it is difficult to draw meaningful conclusions from small data sets, what is striking about the job growth data is how clean it is. Job growth was higher under every Democratic President than under any of the seven Republican Presidents.

How large is the possibility that such a dramatic separation would occur through random chance?

If the ranking of a president on the job growth list were random, then the chance that a Democrat would occupy the top spot is 6 in 13. Once that position is filled, the chance that a Democrat would occupy the second spot is 5 in 12. The third spot is 4 in 11 and so forth.

Thus, the probability that every Democrat would outrank every Republican by operation of mere chance is the product of each of those six chances. If my math is correct, the probability of every Democrat outranking every Republican through random chance is about 0.05% or about a 1 in 2,000 underdog. It is not impossible but it is very unlikely that random chance caused the rankings.

Next Jane argues that external factors may have had more influence on the rankings than policy. She is certainly right that external factors may be influential. Jane mentions the following:

Reagan was the unlucky bastard whose Fed chief had to shut down the party by raising short term interest rates to 20% to get the inflation under control, which sadly hurt his employment numbers. Eisenhower too had to induce a recession to tamp down inflation. GBI got the S&L crisis and GBII got a collapsing asset price bubble.

Putting aside the fact that Paul Volker was appointed as Chairman of the Fed by Jimmy Carter, every president faces external factors. Carter, Nixon and Ford faced rising energy prices as OPEC exercised its muscle. Clinton inherited high budget deficits, spiraling health care costs and faced both Asian and Mexican financial crises. It is the job of Presidents to overcome external problems, not use them as excuses for poor performance.

Next Jane argues that the great productivity boom may explain the rankings:

In this century, Democratic power coincided with the long post-war economic boom (and please don't bore me with the "Democratic policies caused it" theory of the boom, since even uber-partisan Democratic economist Paul Krugman will tell you the boom was the result of rising productivity.)

In comments, Jane identifies the years of the productivity boom as 1940-1970. That suggests that Presidents Nixon (mostly), Ford, Carter, Reagan, Bush I, Clinton and Bush II held office after the productivity boom. The rankings of job growth under those Presidents continues to have both Democrats (Carter and Clinton) ahead of each Republican (Nixon, Ford, Reagan, Bush I, and Bush II).

The probability that random chance would rank the two Democrats ahead of each of the five Republicans, in the period after the productivity boom, is less than 5%.

Finally, Jane argues that Democratic Presidents may perform well on a measure of job growth but suffer on other measures:

It (Democratic Presidential terms) also coincided with highly expansionary Keynsian monetary and fiscal policy that pushed down unemployment at the expense of creating inflation.

If Jane is correct that Keynesian policies by Democratic presidents explain the job growth rankings but have other bad economic consequences, then we should be able to easily identify those consequences.

One of the hallmarks of Keynesian economics is the use of deficit government spending to “prime the pump.” Have Democratic presidents submitted budgets that resulted in greater deficit spending than Republicans?

No, they have not. Last fall I looked at budget deficits by the party of the president submitting the budget for the period of 1962-2001. My conclusion:

The twenty years of budgets prepared by Republican presidents increased the national debt by $3.8 trillion. The average yearly deficit under Republican budgets was $190 billion.

The twenty years of budgets prepared by Democratic presidents increased the national debt by $719.5 billion. The average yearly deficit under Democratic budgets was $36 billion.

How about inflation? Once again, last fall I looked at inflation under budgets submitted by presidents of both parties from 1962-2001. My conclusion:

For the twenty years in which Republican presidents submitted a budget, the inflation rate averaged 4.96%.

For the twenty years in which Democratic presidents submitted a budget, the inflation rate averaged 4.26%.

Jane’s larger point is that there is a weak link between presidential policies and any one measure of economic performance and, therefore, we should be very careful not to place too much emphasis on any one data set. Jane is surely correct on that point.

After I became interested in the issue of economic performance by the political party of the president, I looked at unemployment, inflation, GDP growth, overall federal spending and federal non-defense spending, budget deficits, and increases in federal non-defense employees. Others have looked at stock market returns.

The performance under Democratic presidents was superior to the performance under Republicans in each of those measures.

Perhaps all of those measures are flawed in some way or subject to external forces. Perhaps Republican economic theory and performance is not accurately captured by any of those sets of data. If so, there must be some measure of economic performance that puts Republican Presidents in a favorable light. Any ideas on what that measure might be?

2003-07-08T15:57:00.000-04:00

A Sad Tale

Parenting is hard. Being the parent of a full spectrum autistic child is even harder. Having an autistic child involves a lot of extra work and imposes certain limitations. We have to make sure that the doors stay locked and that no keys are within reach. Maintaining a normal social and family life is a challenge. Bobby requires a lot of time, energy and attention. There is perpetual tension between those needs and the needs of our older son.

The most difficult part of raising a full spectrum autistic child, however, is dealing with the worry about the future. I am 49. Bobby is eight. If I am lucky enough to be able to care for Bobby until I am eighty, Bobby will be thirty-nine. What will happen to him then? Those are the issues that my wife and I discuss and worry about at 3:00 a.m.

All we can do as parents is to prepare as best we can for the day on which we will no longer be able to care for Bobby. The preparation includes lots of work to make Bobby a independent as possible. We hope that he can master sufficient life skills to live independently or perhaps in a group home. If he does not master those skills, what will happen to him when we are no longer able to provide care?

A story I saw in the Philadelphia Inquirer addressed that issue in a very sad way. It is the story of Stanley and Ronnie Mich.

In about 1938, Stanley and Ethyl Mich had a baby boy they named Ronnie. Ronnie is autistic. Ethyl died in 1950 when Ronnie was twelve. After her death, Stanley Mich dedicated his life to taking care of Ronnie and providing for his future.

Stanley Mich delivered newspapers and sold potato chips and candles along his route. Being concerned about Ronnie’s future, he lived very frugally. He never took a vacation and saved his money. Investments in phone stocks did well and added to his savings.

When Stanley Mich was well into his eighties, he thought that he had secured Ronnie’s future. The house where Ronnie had lived his entire life was paid for and Stanley had amassed an estate of $1.2 million dollars. That was enough to pay for full time care for Ronnie while Ronnie lived in the family home.

Autistics do not easily make transitions and Stanley promised Ronnie that no matter what happened to Stanley, Ronnie could live in the house.

Stanley spoke with Dennis O’Brien about Ronnie’s care. O’Brien was parishioner at the Catholic Church Stanley attended and was also lawyer. Stanley Mich named O’Brien as the executor of his estate and as the guardian of Ronnie.

Stanley died of cancer in 2000. Because of the money in Stanley’s estate, Ronnie remained in the family home and had a caregiver with him.

Two years later, a neighbor of the Mich family noticed that the bank had posted a property tax delinquency notice concerning the Mich house. The neighbor decided to investigate.

It turned out that O’Brien was a crook. He had been disbarred and he stood accused of stealing money from a number of clients and elderly people.

Of the more than a million dollars that Stanley worked, scrimped and saved to provide for Ronnie’s future, only $167 remained. O’Brien stands charged with theft, money laundering and embezzlement.

Ronnie was forced to leave the home he had lived in for more than 60 years. He was forced to adapt to changes in the environment and routine that had permitted him to live a happy life. Ronnie now lives at a home for disabled seniors. The taxpayers pick up the $50,000 a year charge.

And that is why my wife and I are often up at 3:00 a.m. We have lots of worrying to do.

Cross Posted at AutismWatch

2003-07-07T21:08:00.000-04:00

Autism- Multiple Causes?

As some of you may know, I have begun posting at a group blog known as AutismWatch. AutismWatch is located here but I expect it to soon move to Movable Type. I will post a notice when the move is complete. It will come as no surprise that AutismWatch will be a single issue blog. My co-bloggers include Mary Beth of Wampum and Emily of Stoneleafunfounddoor. We hope to have other voices added as well. Please drop by to visit.

In the last few days, AutismWatch has linked to articles that suggest at least four separate causes of autism. Those potential causes include 1) mercury in infant vaccines; 2) the measles component of the MMR vaccine (which contains no mercury); 3) the pasteurization of milk; and 4) “the body's exposure and reaction to volatile organic compounds -- chemicals used in paints, chlorinated water and petroleum products, among other things.”

In addition to those four, research suggests a genetic component to autism.

It is hard to know what to make of the fact that there are so many possible causes of autism. There are at least three explanations for the multitude of possible causes.

First, it may be that there are so many causation theories because autism research is in its infancy. As a greater understanding of autism is gained, some causes will be disproved and others will arise. Please remember that at one time it was thought that AIDS had some relationship to Haitian descent. Thus, it may be that the multiplicity of possible causes stems from our lack of understanding of autism and that additional research and study will clarify the matter.

Secondly, it may be that there is one cause of autism and we simply fail to recognize the commonality of that factor in the various possible causes. Extending the analogy above, AIDS, in a sense, has multiple causes. The HIV virus can be spread by unprotected sex, dirty needles, blood transfusions, and in other ways. Until the relationship between AIDS and HIV was established, it was not readily apparent that there was a commonality in the “causes” of AIDS. Once the relationship between AIDS and the HIV virus was established, the commonality of contact with bodily fluids of HIV infected persons was apparent. It may be that once we understand the nature and mechanism of autism, a commonality of all of the above causes will become apparent.

Third, unlike HIV, there is not yet a blood test or similar test for autism. Autism is a set of behaviors. It is diagnosed by observing the subject and seeing if he or she (usually “he”) exhibits a sufficient number of specified behaviors to be deemed autistic.

The existence of common behavior does not demonstrate a common condition. It may be that there are a number of different things that cause similar behaviors.

For example, let us assume that we observe a small group of the population that exhibits the behavior of walking head first into walls. Like autistics, each of those persons exhibits common behavior. It might be natural to group those people together and say that they have a common condition but doing so would confuse rather than clarify the underlying issues.

Upon study, it might be revealed that the cause of the common behavior was different for each of several groups of people who walk into walls. Some might be blind, some drunk, some might have inner ear problems, some might be masochists who love to bang their heads against walls, and some, like Brad Delong, might simply be learned economists doomed to observe the policies of the Bush administration.

Just as the behavior of walking into walls could result from vastly different causes, so it might be with autistic behaviors. All of the above listed potential causes and many others, either singly or in combination with genetic predisposition or other factors, could be causes of autistic behaviors in some people.

If that is the case (and at this point it is just speculation), then instead of thinking about autism as a unitary condition with a single cause, we should be thinking about autism for what it really is, a collection of behaviors. There may be many subgroups of autism, each of which has its own etiology.

If autistic behaviors result from a variety of causes, the search for statistically valid proof of causation will be greatly complicated.

Let’s take a concrete example. Suppose that we hypothesize that some interaction with gluten causes autism. Suppose further that our hypothesis is true for a small portion of the persons who exhibit autistic behaviors.

We design an experiment to test the hypothesis. We recruit 100 kids who exhibit autistic behaviors, and test those kids to determine their level of functioning on whatever criteria we decide to use (say, eye contact and finger flapping). We then randomly divide the group into two fifty-person groups and provide all of the food to all 100 of the subjects.

The experimental group will be given completely gluten-free foods while the control group will consume gluten as a regular part of the diet.

After the experimental period, we retest all 100 subjects for eye contact and finger flapping. We then look to see if there was statistically significant improvement in the experimental group as opposed to the control group.

Let’s say that, through random chance, the experimental group had a disproportionately large number of kids whose autistic behaviors were caused by gluten. Our results will indicate that the improvement through a gluten-free diet is statistically significant.

A second research group sets out to duplicate our results. On that occasion, the number of gluten-sensitive kids, through random chance, is underrepresented in the experimental group. The results of the first experiment will not be duplicated.

In order to get meaningful results from such experiments, we need to identify the subgroups and select from among those when setting up our experiment.

To identify the subgroup of gluten-sensitive kids, we could test our hypothesis on a very large number of subjects and then run a second test among those showing improvement.

The trouble with that idea, of course, is that it ignores the very real interests of the children and their families. If my son Bobby participated in an experiment and made great developmental strides after being taken off gluten, I would be thrilled. If the researchers then asked that Bobby participate in the second test in which he had a 50% chance of being fed gluten with the risk that he would lose his developmental gains, the chances that I would agree to do so are exactly zero.

I have watched Bobby halt his development and gradually fall into an autistic shell. I have watched as he lost skills we fought hard to obtain. I have been there, done that, and gotten the tee-shirt. I will not willingly do so again.

That may not be best for the advancement of science and understanding of autism, but it is the truth.

A version of this post also appears at AutismWatch.

2003-07-06T13:57:00.000-04:00

Job Growth By Presidents

In Comments to this post at MaxSpeak, J.W. Mason posts a listing of job growth by president for the last 75 years:

Hoover (1929-33): -9.0%

Roosevelt (1933-45): +5.3%

Truman: (1945-53): +2.5%

Eisenhower (1953-61): +0.9%

Kennedy (1961-63): +2.5%

Johnson (1963-69): +3.8%

Nixon (1969-75): +2.2%

Ford (1975-77): +1.1%

Carter (1977-81): +3.1%

Reagan (1981-89): +2.1%

Bush (1989-93): +0.6%

Clinton (1993-2001): +2.4%

Bush (2001-present): -0.7%

That list was apparently sent to J.W. Mason him by email by the Economic Policy Institute (Max’s outfit).

There are thirteen presidents on the list, seven Republicans and six Democrats. The Republican administrations cover 35 years (counting the current administration as three years) and the Democratic administrations cover 40 years.

If we change the listing from chronological to a ranking by job growth we get:

1) Roosevelt (1933-45): +5.3%

2) Johnson (1963-69): +3.8%

3) Carter (1977-81): +3.1%

4) Truman: (1945-53): +2.5%

5) Kennedy (1961-63): +2.5%

6) Clinton (1993-2001): +2.4%

7) Nixon (1969-75): +2.2%

8) Reagan (1981-89): +2.1%

9) Ford (1975-77): +1.1%

10) Eisenhower (1953-61): +0.9%

11) Bush (1989-93): +0.6%

12) Bush (2001-present): -0.7%

13) Hoover (1929-33): -9.0%

Notice anything interesting about that listing?

2003-07-05T13:13:00.000-04:00

Jurors Turn Away From Death Penalty

No person who does not believe that capital punishment is appropriate in some cases is permitted to serve on a jury when the government seeks the ultimate sentence. Despite that fact, jurors are more and more frequently refusing to impose a sentence of death.

In 15 of the last 16 Federal capital cases, jurors imposed life sentences rather the death penalty. From 319 death sentences nationwide in 1996, the total has dropped to 229 in 2000 and 155 in 2001. Why is that?

An excellent article by ALEX KOTLOWITZ in the New York Times Magazine attempts to answer that question.

Kotlowitz notes a number of macro factors that may explain the trend. Those factors include the publicity surrounding the use of DNA to clear death row inmates, the overall drop in the murder rate, the improvement of defense attorneys in developing and presenting mitigation evidence, the availability of life without parole as an option.

Kotlowitz's focus, however, is not on those macro trends but, rather, on one specific instance in which a jury chose to impose life instead of death.

That case involves the decision of 12 death penalty supporters to sentence Jeremy Gross to life in prison instead of death.

In 1998, then 18 year old Jeremy Gross, in the course of a robbery, committed the senseless murder of Christopher Beers. The robbery/murder was particularly gruesome:

At 2:40 a.m. on Aug. 26, 1998, along a main drag on the west side of Indianapolis, 18-year-old Jeremy Gross approached a convenience store with a friend. They intended to rob it. At 5-foot-8 and of slender build, Gross was not particularly physically imposing, and he had a distant look about him. He wore his blond hair in a bowl cut and often seemed nervous and fidgety. He knew the store well, since he worked there part time, and he also knew the young man, Christopher Beers, who was the lone clerk that morning. Beers, who was 24, had been raised by his father and had completed one year at Purdue University before running out of money for tuition. He was overweight and, according to his uncle, mild-mannered. He was working to earn money to return to school. An avid reader, he welcomed the graveyard shift; it gave him time with his books.

Gross stood outside the glass doors, behind his accomplice, Joshua Spears. He held a small, black semiautomatic pistol at his side, out of sight. Gross was jumpy, turning his head from side to side to make sure no one was in the parking lot. Beers buzzed them in. Gross took long, hurried strides into the store, raised his right arm and started shooting. It happened so quickly that Beers didn't have a chance to say anything. The first shot hit him in the abdomen. Gross continued to fire. Three shots missed, but a fourth hit Beers in the chest. ''Oh, God, please, no,'' he pleaded. As Beers stumbled into the back office, Gross followed and, to get a better angle, shifted the pistol from his right hand to his left. From close range, Gross shot Beers in the face. With blood now gushing from his eyes, Beers reached out for Gross, as if he were asking for support. Gross pushed him away, and he crumpled to the floor. ''Why, Jeremy, why?'' Beers asked. Gross told him to shut up.

Gross's partner, Spears, had headed for another room to get the surveillance tape, but he couldn't get the eject to function, so he grabbed the VCR. Meanwhile, Gross emptied the cash register and office safe of $650, then ripped the two telephone cords from the wall. This all happened in less than a minute. The two fled by foot, through a neighborhood of mobile homes to their trailer park not more than half a mile away. Along the way, Gross and Spears threw the gun and the VCR over a wire fence into a retaining pond.

After they left, Beers lifted himself off the floor and shuffled out the door to a pay phone, where he again collapsed. He died under a dangling phone, rivulets of blood running from his head.

There is no question of Gross’ guilt. He was seen entering the crime scene. He confessed to the murder and directed the police to the surveillance videotape that had captured the crime on film. Gross’ lawyer acknowledged to the jury that Gross was guilty of the crime.

Before trial, one juror said she “strongly favored” the death penalty on the grounds that “an eye for an eye” constitutes justice. Another juror opined that the death penalty is not imposed often enough. Each of the jurors swore that he or she supported the death penalty in an appropriate case. One prosecutor, after reviewing the videotape, commented that “''There isn't a jury in this world . . . that would not recommend the ultimate penalty in this case, the death penalty.''

And yet, the jury in Jeremy Gross’s case declined to impose death. Instead, the jury sentencedGross to life without possibility of parole. Kotlowitz sets out to find out why.

A few years after the trial, Kotlowitz interviewed nine of the jurors, the prosecutor, the defense lawyer and many of the witnesses to find out why the jury spared Gross’ life. He tells the story of the trial from the perspective of the jurors and other participants in an effort to understand how the jury made its decision to choose life over death for Jeremy Gross.

The article is fascinating reading. It is long and detailed but it is well worth your time. It may even change the way you think about death penalty cases.

2003-07-04T15:13:00.000-04:00

Keeping Score

Max is keeping score on the President’s job creation promises.

On May 28 of this year, the President signed the Jobs and Growth Tax Relief Reconciliation Act of 2003. That was this year’s tax cut bill.

On April 24 of this year, the President traveled to Ohio to give a speech building support for the bill. After the speech, the White House provided a press release about the event. In the press release, the White house made specific promises about the effects of the tax cut on job growth:

President Bush traveled to Ohio to discuss the benefits of his jobs and growth plan with local small business owners and workers at the Timken Company in Canton.

The President is working to grow the economy and create the largest number of new jobs possible for America's workers. He has proposed a jobs and economic growth plan that would help create 510,000 new jobs this year and a total of 1.4 million new jobs by the end of next year. The President will not be satisfied until everyone looking for work can find it.

As the Economic Policy Institute has pointed out, in February of this year, the President’s council of Economic Advisors put out a statement in support of tax cuts. That statement claimed that in the absence of tax cuts, the economy would generate 256,875 new jobs per month.

Thus, according to the CEA, the economy would generate 1,798,125 jobs from June 1 through December 31 of this year if no tax cut had been enacted.

Mr. Bush claimed that the tax cut would generate an additional 510,000 jobs this year. For Mr. Bush’s promises to come true, the economy would have to generate 2,308,125 jobs in the June through December period. That averages out to 329,732 jobs per month.

The employment figures for June are in. Last month, the economy lost 30,000 jobs.

For Mr. Bush’s promises of job creation to come true, the economy must create 2,338,125 new jobs in the last six months of this year. That averages out to 389,688 jobs per month for the remainder of the year.

For the purposes of comparison, during the 1990s, non-farm payrolls grew by 21 million jobs. That is an average of 175,000 new jobs per month.

For Mr. Bush’s promises to come true, job growth for the remainder of the year will have to be a pace greater than double the rate of the 1990s.

I hope his promises come true. Along with Max, I will be keeping score to see.

2003-07-03T13:27:00.000-04:00

A Turning Point?

The New York Times ran this David Leonhardt New Analysis of George W. Bush’s economic record. Leonhardt writes:

For George W. Bush, the race has begun to escape comparisons to Herbert Hoover.

With more than two million jobs having disappeared since Mr. Bush took office in January 2001, he finds himself in danger of becoming the first president since Hoover to oversee a decline in the country's employment. Economists disagree on how much blame, if any, Mr. Bush deserves for the long slump, but even White House aides view the economy as one of the only big threats to his re-election campaign.

Now, a turning point could be approaching. The Labor Department will release its jobs report for June this morning, and some forecasters are predicting that it will mark the beginning of a rebound. An increase in the nation's payrolls — the odds of which are roughly even, Wall Street economists say — would be the first since January.

If today’s employment report was a turning point, it was not the one Mr. Bush was seeking. As the Times reported this morning:

In a bleak start to the Fourth of July holiday weekend, the government reported today that the nation's unemployment rate climbed to its highest level in more than nine years during June.

The Labor Department figures were almost uniformly bleak. Employers eliminated 30,000 jobs last month, a bit more than Wall Street economists had expected. Equally important, May job losses, which had initially been reported at 17,000, were sharply revised, to 70,000.

The unemployment rate, which stood at 6.1 percent in May, jumped to 6.4 percent in June.

The jobless rate has not been this high since April 1994. This was the biggest month-to-month increase in unemployment since immediately after the Sept. 11, 2001, terrorist attacks.

Some have hoped that interest rate cuts by the Federal Reserve would bring the economy out of the doldrums. The Fed has cut interest rates 13 times since 2001. Short term rates now stand at a historically low 1%. The Fed is almost out of ammunition and it is now reasonably clear that monetary policy alone has not worked.

Mr. Bush’s economic policy has consisted of back-loaded tax cuts favoring the wealthiest of Americans. That policy has helped turn budget surpluses into deficits for as far as the eye can see. We have already set a deficit record this year (the final total will exceed $400 billion after the entire Social Security surplus is consumed) and three months of the fiscal year remain. Despite the long term fiscal damage caused by Mr. Bush’s policies, those policies have done little to address current economic problems. A tax cut for the $400,000 a year crowd scheduled for 2010 does little to stimulate the economy today.

Perhaps Mr. Bush needs to rethink his economic policies. If he does not, we may yet reach a turning point. That turning point may not be in the employment numbers but rather in Mr. Bush’s political fortunes.

2003-07-03T13:03:00.000-04:00

A Google Search

If you go to Google, type in “weapons of mass destruction” and click “I’m feeling lucky,” your search returns this. Thanks Pete for the tip.

2003-07-03T11:21:00.000-04:00

Birthdays

Tomorrow is a day of birthdays. America will turn 227 tomorrow. To celebrate America’s birthday, one can do no better than to contemplate the words of Thomas Jefferson:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed…

Tomorrow also marks my forty-ninth birthday. To celebrate, I can only recall the words of Scout Finch in the opening lines of the tenth chapter of Harper Lee’s To Kill a Mockingbird:

Atticus was feeble. He was nearly fifty. When Jem and I asked him why he was so old, he said he got started late, which we felt reflected on his abilities and manliness.

2003-07-01T16:01:00.000-04:00

Mort Zuckerman Gets Busted

Mort Zuckerman, editor in chief and publisher of U.S. News and World Report has been busted. His bust concerned a recent column (the link is to a Jewish World Review reprint of the column as the U.S. News issue has gone behind the $ firewall) in U.S. News And World Report decrying that most durable of hobby horses, frivolous lawsuits.

Two of the examples of frivolous lawsuits provided by Mr. Zuckerman are:

a woman throws a soft drink at her boyfriend at a restaurant, then slips on the floor she wet and breaks her tailbone. She sues. Bingo--a jury says the restaurant owes her $100,000! A woman tries to sneak through a restroom window at a nightclub to avoid paying the $3.50 cover charge. She falls, knocks out two front teeth, and sues. A jury awards her $12,000 for dental expenses.

Howie Kurtz of the Washington Post busted Zuckerman for using those two examples for the simple reason that they never happened. Somebody made them up. As Kurtz writes:

Great stuff -- and, unfortunately for Zuckerman, totally bogus. Two Web sites -- StellaAwards.com and Snopes.com -- say the cases of the soda-slipping Pennsylvania woman and the window-wriggling Delaware woman are fabricated, and no public records could be found for them.

Zuckerman has plenty of company. A number of newspapers and columnists have touted the phantom cases since they surfaced in 2001 in a Canadian newspaper.

Ken Frydman, Zuckerman's spokesman, did not dispute that the pair of cases in the column two weeks ago were imaginary, but would not address whether the magazine will publish a retraction.

"These cases were reported in a variety of other reputable publications, such as the Fort Worth Star-Telegram and the London Telegraph, and Mr. Zuckerman could have cited dozens of other cases," Frydman says. "Few Americans would disagree with the proposition that there are far too many frivolous lawsuits filed."

Zuckerman choose those examples for his column because the cases, if real, are obviously ridiculous. No one could possibly think that either of the plaintiffs cited by Zuckerman deserves to be compensated in any way.

Indeed, Zuckerman is quite sure that the examples will be viewed as ridiculous by all of his readers. I wonder, then, why he thinks a jury would view the case any differently? Juries are made up from a cross section of the community. I have selected many juries. I have never had a jury that did not include at least a few people who are readers of U.S. News and World Report or similar publicatons.

I also can not help but wonder why so many examples of alleged ridiculous jury verdicts turn out to be false. Zuckerman’s spokesman contends that there were dozens of examples that could have been used. If that is true why do we so often hear about the McDonald’s coffee case (which was real but not frivolous), the mythical driver of the RV who set the cruise control and left the wheel and sued when a wreck occurred and many other bogus examples of frivolous suits. See Kip's post for a listing and a debunking of those mythical suits.

Perhaps obviously ridiculous jury verdicts providing huge judgments for undeserving plaintiffs are sort of like UFO’s. Many people know many people who claim to have seen them but it is hard to find a person who can deliver the proof.

Zuckerman becomes even more absurd when he discusses the economics of contingency fees:

The right to sue has been exploited by lawyers. They can gamble on taking cases on a contingency basis because they need only 1 win in 10 to score that big judgment that will make up for the other losses.

The only “big judgment” in a frivolous suit that he cites is the $100,000 for the lady who threw her drink and slipped in the spill. Even putting aside the fact that that story was made up, the economics are simply wrong.

It would be difficult for a lawyer, working by himself, to handle more than twenty such suits at a time. Assume first that the lawyer took all twenty such cases to trial in a year. That is a very a dubious assumption because 1) the time from filing to trial, at least in this jurisdiction, is closer to 2 years and 2) the lawyer would never get such a case before a jury as the judge would grant the defendant’s summary judgment motion. Next assume that the lawyer had a 33% contingency fee.

If the lawyer succeeded in one case in ten, he would have total revenue for the year of $67,000 out of which he would get to pay for all of the expenses of his practice. It is unlikely that such a lawyer would net $50,000 for his effort.

If the lawyer, however, could discern which of the twenty cases was the winner, he could accept that case and reject the rest. With 20 such winning cases, he would have earnings of $667,000 of which he would net more than $600,000 for the same amount of work. The contingency fee lawyer, therefore, has every incentive to make sure that each and every case he accepts is a winner.

I know of no plaintiff’s attorneys who take cases in which they estimate a 10% chance of success. A lawyer taking contingency fee cases that have a 10% chance of success is much more likely to face a bankruptcy judge than a civil jury.

The use of contingency fees arrangements gives the lawyer every incentive to only take cases that are sure winners. The only lawyers who make money from frivolous personal injury cases are lawyers for the insurance companies.

The conventional wisdom is exactly backwards with regard to contingency fees. The use of such arrangements acts as a filter to prevent frivolous cases from being filed. A lawyer being paid on a hourly rate for every hour worked on a case may be willing to take a chance with a small probability of success but a lawyer who assumes the risk of losing must be more selective.

What, you say, you do not believe me? Then try a little experiment. Call a plaintiff’s lawyer and tell him that you suffered a fractured tailbone when you slipped in a restaurant on a drink that you threw at your boyfriend. Tell him that you know the case has only a 10% chance of winning and that, if successful, the case will generate an award of $100,000. Tell the lawyer that you are unwilling to risk any of your money for the suit but that you want him to risk his time and money and that he can have 1/3 of any settlement he secures. If you are not listening to a dial tone pretty quickly I will be greatly surprised.

Next, call up a lawyer who bills by the hour. Tell him the story and add that you know the case has little chance for success but that you are willing to pay $250 per hour for every hour worked. I expect that your reception will be a bit friendlier.

2003-06-29T19:17:00.000-04:00

Individualized Consideration

The Supreme Court’s decisions in the University of Michigan Law School case, Grutter v. Bollinger and the undergraduate case Gratz v. Bollinger require individualized consideration of applications to public universities if race is to be considered in the admissions process.

Justice O’Connor’s majority opinion in Grutter found that the law school had a compelling interest in attaining a diverse student body and permitted consideration of race (along with many other factors) in the admissions process. The consideration of race must be “narrowly tailored” to promote the specific interest of attaining a diverse student body. The law school’s admissions policy met that requirement by using system of individualized consideration:

The policy aspires to "achieve that diversity which has the potential to enrich everyone's education and thus make a law school class stronger than the sum of its parts."…

To be narrowly tailored, a race-conscious admissions program cannot use a quota system--it cannot "insulat[e] each category of applicants with certain desired qualifications from competition with all other applicants." … Instead, a university may consider race or ethnicity only as a " 'plus' in a particular applicant's file," without "insulat[ing] the individual from comparison with all other candidates for the available seats."… In other words, an admissions program must be "flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant, and to place them on the same footing for consideration, although not necessarily according them the same weight."…

That a race-conscious admissions program does not operate as a quota does not, by itself, satisfy the requirement of individualized consideration. When using race as a "plus" factor in university admissions, a university's admissions program must remain flexible enough to ensure that each applicant is evaluated as an individual and not in a way that makes an applicant's race or ethnicity the defining feature of his or her application. The importance of this individualized consideration in the context of a race-conscious admissions program is paramount…

The undergraduate admissions policy in Gratz with its popint system failed to pass constitutional muster because it was not an individualized screening process.

I have little doubt that a “highly individualized, holistic review of each applicant's file, giving serious consideration to all the ways an applicant might contribute to a diverse educational environment” will result in far more interesting student bodies and far better schools.

When I was at Duke Law, the students with the best undergraduate grades and LSAT scores were not the best law school students nor were they the most interesting people.

Judith Sapp was my Moot Court partner (we lost in the semi finals) as well as a study partner. She is a high school drop out who did not attend college. Despite that fact, the admissions office at the Duke Law School used an individualized process and admitted her. She was one of the two or three smartest and most interesting people in the class.

Judith went on to graduate with high honors and clerk for a Circuit Court of Appeals Judge. She is now a partner at Peirce Atwood in Maine practicing in the area of intellectual property.

That is a good example of how individualized consideration should work. Duke got a brilliant student and our law school class was far more varied and interesting than if we had had just another 4.0 grinder in the class.

Justice O’Connor’s individualized consideration standard also solves a problem about which I have long wondered. In public university affirmative action programs, like the Michigan undergraduate program, that give a specified number of points for race or ethnicity, what are the criteria for determining a person’s race?

Take the category of African-American. What is the definition of an African- American? Last year when my third grader was studying Thurgood Marshall, he asked me what an African-American was. I responded saying that an American citizen whose ancestors lived in Africa is called an African-American. “That is everyone,” he replied.

He, of course, was quite correct. All Americans have ancestors who lived in Africa as all of humanity is descended from people who lived in Africa.

The problem, of course is that there is no test for African-Americanism. Race is not a biological fact but rather a social construct. The real definition of African-American is any person who identifies himself or herself as an African-American.

I kept expecting someone most would consider Caucasian to claim the 20 points on the University of Michigan application process. On exactly what basis would the applicant’s self-identified race be challenged? How recently must one’s ancestors have lived in Africa to qualify? How many of one’s ancestors to what degree of consanguinity must one have to qualify? I think that it is particularly inappropriate for governmental bodies to be making that determination. One good thing about Justice O’Connor’s opinion is that that problem has been eliminated.

One difficulty with the “individualized consideration” standard is that it will be an administrative headache. The University of Texas has about
12,000 applications. Despite the administrative burden of individualized consideration, the University of Texas already plans to use an affirmative action program that comports with Justice O’Connor’s opinion.

Public universities now have a simple choice. They can spend the resources to use “individualized consideration” with its attendant administrative headaches or they can use a mechanical admissions process to admit only those with the best grades, SAT scores and jump shots.

If they choose the latter, the overall quality of the institution and the educational experience of all students will suffer.

2003-06-29T00:43:00.000-04:00

Today’s Tour

Andrew Northrup is unconcerned about the administration’s propensity for secrecy and for manipulation of information:

Well, I'm confident that will all work out for the best. Liberals may complain that giving so much power with no transparency to people with a track record for distorting the truth for political ends may be both unwise and unAmerican, but if we'd listened to those crybabies Osama would still be on the loose and Saddam would still have his nuclear weapons

Link via The Sideshow.

Billmon has an example of the revisionist historians of whom Mr. Bush complains. In the case Billmon cites, however, the revisionist is not actually a historian. He is a Senator and a Doctor.

Natasha of the Watch has an excellent three part series on Asperger’s Syndrome. All three parts are must reading for anyone with an interest in the spectrum. Part I, Cranky Bodies is here. Part II entitled Hey, Look it’s the … is here. Part III, A Life of Grand Obsession is here. Please read them all.

2003-06-26T20:28:00.000-04:00

Forced Vaccinations – Some Proposed Answers

In a previous post, I asked some questions about a specific case of forced vaccination. Among those questions was:

3) If a link between mercury in vaccines and autism was definitively established, would the hospital and the government have been justified in their actions?

Please see the original post (link above) for the story of a newborn being given a Hepatitis B vaccine against the wishes of the parents. I suggested that both the hospital and the government acted responsibly in forcing the baby to be vaccinated, and I also suggested that the establishment of a causal connection between mercury in vaccines and autism would not change that analysis.

A number of people think I am dead wrong (a result that would be surprising to no one, including me). Among those who think I am wrong are several people whose opinions I greatly respect. I therefore feel the need to explain my position. It may be that the opinions of others will change my mind.

My analysis begins with the proposition that the standard to be applied in making the decision as to whether or not to vaccinate the child is the best interests of the child, no more and no less. The child cannot make that decision. The parties to the controversy, the parents, the hospital, and the judge all have a responsibility to ensure that the best interests of the child are protected.

Based on that standard, I can find no fault with the actions of the hospital. The hospital was faced with the situation of grave medical risk to a minor. The parents refused to give the hospital permission to perform procedures widely accepted as necessary to preserve the health of the child. The hospital has a duty to protect the child and a duty not to perform unauthorized medical procedures. Faced with that dilemma, the hospital sought guidance from legal authorities. That was completely appropriate.

The hardest question is whether the government would have been justified in forcing the Hepatitis B vaccination if a causal connection between the administration of vaccines containing mercury and autism had been established.

Assuming, for the purpose of argument only, that mercury exposure from vaccines causes autism, then the judge faced a choice between the risk of the child contracting Hepatitis B and the risk of the child being autistic.

The best interests of the child required the judge to choose between those risks. To decide which of those risks to accept, the judge should look at the probablility of each possible outcome as well as the consequences of each.

During the 1980s, the best estimate of the incidence of autism was approximately five in 10,000 or about 0.05%. The 1990s saw a drastic increase in the number of vaccinations containing mercury given to infants. There has also been a large increase in the incidence of autism. The best available evidence to date suggests that autism now occurs in about one in two hundred children or about 0.5%. That ten-fold increase is from a very small base. Even if the entire increase is attributed to mercury in vaccines, the exposure to mercury in vaccines increased the chances of autism by 0.45%.

Thus, the decision to force a vaccination would result in harm in less than one half of one percent of the cases. The decision to force a vaccination would result in no harm at least 99.55% of the time.

Of course the consequences of that 0.45% are grave. Autism is no picnic. It is a lifelong potentially debilitating condition that causes much suffering for all concerned. Autism, however, does not kill.

Hepatitis B does kill. According to the article linked to in the previous post, 25% of infants who contract lifelong Hepatitis B die from liver disease or liver cancer. The judge would be justified in concluding that Hepatitis B has more serious consequences than autism.

If vaccinating the child reduces the chance of Hepatitis B by more than the increased risk of autism caused by mercury exposure, then the judge was justified in forcing the vaccination. The increased risk of autism can be no greater than 0.45%. Does the vaccination reduce the chance of Hepatitis B by more than that?

It appears that it does.

According to this site, a Hepatitis B carrying mother has a greater than 80% chance of transmitting the infection to a newborn. The vaccine is effective to protect the newborn 90-95% of the time.

Thus, the chances of the infant being infected with Hepatitis B are high if the mother has the infection. In the case we are discussing, the mother had had two Hepatitis B tests. Both were positive. The rate of false positives was, according to the story, 40%-60%.

As a matter of probabilities, the chance of two false positives was 16%-36%. Stated differently, the best information available to the judge was that the chances of the mother having Hepatitis B were between 64% and 84%.

Thus, in the absence of a vaccination, the newborn had a 51% to 67% chance of acquiring the virus. At 90% effectiveness, the vaccine would reduce that chance to 5-7%.

If the judge made the same decision 200 times, giving the vaccine would save 88 to124 children from acquiring Hepatitis B at a cost of about one additional case of autism.

Given that the consequences of Hepatitis B are as bad as or worse than autism and the risk of a bad result would be increased by a failure to vaccinate, I think the judge was justified in forcing the vaccination.

The above analysis assumes that the choice was to vaccinate immediately or not at all. It is possible that there was a middle position of waiting for a more definitive result of a Hepatitis B test on the mother and forcing the vaccination only if that test were also positive. I am not sure how to evaluate that option as I do not know how long it would take to obtain the test result nor do I know the decrease in efficacy of the vaccination due to delay. It is possible that my opinion would change if the risks run by waiting were substantially less than the 0.45% hypothetical risk of autism caused by the mercury exposure. Does anyone have any data on those issues?

As noted above, my analysis could well be wrong. Is it?

2003-06-26T14:00:00.000-04:00

PLA--MS

Just for Today, PLA becomes PLA--MS. No, I haven’t sold out to Microsoft yet (not for lack of trying. My failure to sell out is completely a demand side problem.) That is, instead of Politics Law and Autism, this space is now Please Laugh At -- Michael Savage.

Savage has mocked autistic kids and made stupid, hateful comments about gays, racial minorities and others. When a few souls called him on it, he sued three small web sites in an effort to silence their criticisms.

Michael Savage is a bully. One way to deal with him is simply to laugh at him. Laugh at him for changing his name from Michael Weiner. Laugh at him for his hypersensitivity to criticism while he has no sensitivity towards others. Laugh at him for his microscopic tevelvision ratings. Laugh at him for trying oh so hard to become a succesful right wing radio talk jock and instead becoming merely a parody. If you cannot manage a good belly laugh, mockery and ridicule are also acceptable.

Other folks laughing at Michael Savage today include Ted Barlow, Neal Pollack, South Knox Bubba, the Angry Bear, Jesse and, of course Atrios.

2003-06-24T01:36:00.000-04:00

Forced Vaccinations – Some Questions

Some people believe that mercury in childhood vaccines causes autism.

The purpose of this post is not to argue whether or not that belief is justified (I intend to address that issue in another post) but rather to pose some questions. First, however, I have to tell you a story.

The story concerns a Colorado couple. I cannot vouch for the accuracy of the report but for the purpose of my questions, let us simply assume that it is true.

The Colorado couple went to the hospital for childbirth when the baby presented in a traverse position. The couple had no health insurance and attempted a home delivery before heading to the emergency room. At the hospital the baby was born after emergency C section.

The initial screening test on the mother came back positive for Hepatitis B. According to the story the false positive rate for that test 40-60 percent of the time (can anybody confirm or refute that claim?).

The parents protested that it was impossible for the mother to have Hepatitis B. After a second test came back positive the hospital personnel insisted that the parents sign a consent form to have their newborn vaccinated. The parents did not want the baby vaccinated in part because of religious beliefs and in part because they believed that the vaccination might be harmful to the baby.

The Hepatitis B vaccine at the time contained Thimerosal (49% mercury by weight) as a preservative. The vaccine contained 12.5 micrograms of mercury while the EPA standard for mercury is 0.1 micrograms of mercury per kilogram body weight per day. The Hepatitis B vaccine contained 39 times more mercury than permitted under EPA guidelines.

The couple stood their ground, continued to insist that it was impossible for the mother to have Hepatitis B and refused to sign the consent form.

The refusal to sign the consent form put the hospital and the doctors in a tough spot. The story notes:

According to the Centers for Disease Control and Prevention, 12,000 infants are infected with hepatitis B every year by their mother during birth. Infants and children who become infected with hepatitis B are at the highest risk of developing life-long infection, which often leads to death from liver disease and liver cancer. Approximately 25 percent of children who become infected with life-long hepatitis are expected to die of a related disease as adults.

In addition, when the mother tests positive for Hepatitis B, the infant should be immunized within 12 hours of birth. Apparently, the results of a definitive test as to whether or not the mother had Hepatitis B would not be available within the 12 hours.

The hospital called its lawyers, who called a judge, who held a hearing at the hospital. The couple had no time to have a lawyer represent them at the hearing as they were given only 15 minutes notice of the hearing. The 19 year old father represented himself and his family at the hearing.

The judge ruled that the baby would be vaccinated immediately and ordered the baby into the care of the local child services agency for the purpose of medical decision making (apparently physical custody of the baby remained with the mom).

After the vaccination, the Hepatitis B test came back negative for the mom.

The father has posted his version of the events here.

That story raises a number of questions, including the following:
1) Was the hospital justified in its actions?

2) Was the government (in the form of the courts) justified in forcibly vaccinating the child?

3) If a link between mercury in vaccines and autism was definitively established, would the hospital and the government have been justified in their actions?

4) Do the religious beliefs of the parents make any difference?

In my opinion, both the hospital and the government were fully justified in all of their actions and neither proof of a link between mercury and autism nor the parents’ religious beliefs would make any difference in my analysis.

2003-06-23T20:57:00.000-04:00

Justice O’Connor’s Expectation

The Supreme Court issued its ruling today in Grutter v Bollinger, the University of Michigan Law School affirmative action case. In a 5-4 decision the Court reaffirmed the central ruling of Bakke that “student body diversity is a compelling state interest that can justify using race in university admissions.”

The majority opinion was written by Justice O’Connor.

Professor Balkin has an excellent post on the decision.

I was struck by one statement made by Justice O’Connor. She wrote as follows:

We take the Law School at its word that it would "like nothing better than to find a race-neutral admissions formula" and will terminate its race-conscious admissions program as soon as practicable. It has been 25 years since Justice Powell first approved the use of race to further an interest in student body diversity in the context of public higher education. Since that time, the number of minority applicants with high grades and test scores has indeed increased. We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today. (Citations omitted).

Professor Balkin remarks about that statement:

Finally, Justice O'Connor's opinion states near the end that she expects that 25 years from now race conscious affirmative action plans will be unnecessary and therefore unconstitutional. This is a familiar theme in her opinions-- she wants race conscious measures to be temporary, with sunset provisions, and she is deeply suspicious of plans that have no foreseeable endpoint.

Nevertheless, it is hard to know what to make of her statement in Grutter. Surely she is not saying that plans automatically become unconstitutional after 25 years. The best interpretation is probably that she wants a future Court to revisit the constitutionality of affirmative action plans if they go on too long. In other words, she is laying down a marker for a future Supreme Court someday to put an end of race conscious affirmative action in higher education, akin to the Court's retrenchment in school desegregation in 1990's cases like Pitts and Dowell. That leaves the door open for the Court to reverse Bakke someday, just not for many years. And it reflects Justice O'Connor's well-known tendency toward judicial compromise.

Professor Volokh agrees:

[T]his is hardly a legal command that the policies must cease in 2028. The 25-year time frame is an "expect[ation]" of when the "use of racial preferences will no longer be necessary" (under the majority's definition of necessity) to "further the interest" in educational diversity. But if 25 years from now universities want to continue their race preferences -- or defend new ones -- they can just say that, no, the use of racial preferences is still necessary, because things weren't quite as the Court has expected. The question will simply be what the Supreme Court in 2028 will think about that argument; and the Grutter "25 years" line won't really have much precedential weight in that situation.

While I agree with the Professors with regard to the effect of the statement, I am interested in a slightly different question.

On what basis did Justice O’Connor form her expectation that by 2028 “the use of racial preferences will no longer be necessary to further the interest approved today?”

Was evidence presented at the 15 day bench trial concerning the probable course of social evolution concerning race in the United States over the next 25 years?

If so, what sort of an expert presented such testimony? Under the Supreme Court’s opinion in Daubert, expert testimony is not admissible unless a Judge first makes a:

preliminary assessment of whether the testimony's underlying reasoning or methodology is scientifically valid and properly can be applied to the facts at issue. Many considerations will bear on the inquiry, including whether the theory or technique in question can be (and has been) tested, whether it has been subjected to peer review and publication, its known or potential error rate, and the existence and maintenance of standards controlling its operation, and whether it has attracted widespread acceptance within a relevant scientific community. The inquiry is a flexible one, and its focus must be solely on principles and methodology, not on the conclusions that they generate.

Could any testimony about the course of race in American society over the next 25 years meet those criteria?

I do not mean to put too fine a point of Justice O’Connor’s statement. She was simply attempting to emphasis her view that the use of race based preferences should be limited in time. She selected 25 years as that was the approximate time between the decisions in Bakke and Grutter.

Justice Thomas, however, has already tried to spin Justice O’Connor’s “expectation” into a holding finding racial preferences illegal on a date certain:

Second, I agree with the Court’s holding that racial discrimination in higher education admissions will be illegal in 25 years. See ante, at 31 (stating that racial discrimination will no longer be narrowly tailored, or “necessary to further” a compelling state interest, in 25 years).

Judges should confine themselves to the factual record before them as applied to the law. As far as we can determine, Justice O’Connor’s expectation is no better and no worse than the expectation of the guy sitting at the other end of the bar. She has no special expertise in the evolution of American society. Would it not have been better to simply say that at some point the need for racial preferences to promote diversity in higher education will no longer be necessary? It would then be up to some other group of Justices, acting on appropriate evidence, to determine whether or not that day has come.

By stating a specific period, Justice O’Connor creates expectations that are not based on evidence. If the need for racial preferences has disappeared in, say, ten years, the proponents of preferences will argue that the 25 year window has not closed. If by 2028, the need for racial preferences remains, opponents of preferences will argue that the window has closed by the passage of time regardless of the evidence.

I think that both Justice O’Connor and the law would be better served if she had heeded Yogi Berra’s advice (paraphrased as it is quoted in various forms at various places) that “predictions are always risky, particularly about the future.”

2003-06-23T13:04:00.000-04:00

Credit Where Credit Is Due

I do not often agree with Dr. Charles Krauthammer. I must, however, give credit where credit is due. Krauthammer’s latest column at
TownHall is quite good. The thesis of the column is as follows:

Everyone agrees that the United States is far too dependent on imported oil. Liberals say we need to conserve more. Conservatives say we need to produce more. It is the most ridiculous debate on the American political scene. We obviously need to do both. Every barrel added to domestic production and every barrel subtracted from consumption has the equivalent effect of reducing our dependence on unstable and unfriendly foreign producers.

Our dependence on oil for energy, particularly imported oil, causes three large problems. The first problem is that it greatly increases our trade deficit. We currently import more than 11 million barrels a day barrels of oil a day. The current price of oil is about $26.53 a barrel for Benchmark Crude. Thus, we send about $106 billion dollars a year out the country to oil producing countries. Our total trade deficit was about $136 billion in the first quarter of 2003. Imported oil accounts for about 1/5 of the total trade deficit. Billmon has chronicled the potential devastating effects of a large trade deficit. A reduction in imported oil would have large beneficial effects on our trade deficit.

The second problem caused by our addiction to oil as an energy source is pollution. The process of locating, extracting, and burning oil damages our environment. The burning of oil pollutes our air, causes acid rain and contributes to global warming. A policy that promotes the burning of oil as our primary energy source is destructive of our environment.

The third problem caused by our reliance on imported oil is in the area of foreign policy. Saudi Arabia, a country which spawned most of the 9-11 terrorists sells about 8.4 million barrels of oil a day. Because oil is a commodity sold in a world wide market place, our demand for oil benefits the Saudis regardless of whether we buy our oil from Venezuela, Canada or elsewhere. By continuing our addiction to oil, we fund the people who fund terrorism.

In effect, our reliance on oil to fuel our economy provides a weapon of mass economic destruction to the Saudis and other oil producing countries. What would happen to the dollar if the Saudis decided to accept only Euros as payment for oil? What would happen to our economy if OPEC decided to raise the price of oil to $65 per barrel and was willing to cut production and forego the income required to do so? Think about the US economy circa 1974-1979. It is not a pretty sight.

Thus our dependence on oil harms our balance of trade, puts our economy at risk of being held hostage by folks who do not have our interests at heart and pollutes our environment. That is truly a trifecta.

There is no single energy policy that will address all three problems in the short term. As Krauthammer points out, the problem needs to be addressed on all fronts. In particular, we need policies that 1) reduce consumption of oil; 2) substitute alternative sources of energy for oil consumption; and 3) develop our own petroleum resources. A package of proposals is needed.

Krauthammer proposes a compromise in which both liberals and conservatives must compromise. I think he is right.
Krauthammer proposes three policies. First, he proposes to levy a hefty tax on imported oil.

We must reduce oil consumption. The very easiest way to do it is simply to artificially raise the price of oil--i.e., tax it.
Oil is currently selling at about $30 a barrel. Slap, say, a $5 (or $10--the bazaar is open) tax on every imported barrel. And most important, keep the new price--let's say $35--as a floor. The world market price is likely to fall as Iraqi oil comes online, as Venezuela stabilizes, and as Russian and Caspian producers ramp up production.

This presents a wonderful opportunity to capture the fall in oil prices in the form of taxes. Say oil drops to $20 a barrel. Raise the import fee to $15 a barrel, so the consumer keeps paying $35 a barrel net. The windfall goes to the U.S. Treasury.

The benefits of such a scheme are enormous. Fixed and fairly expensive oil prices will induce consumers to cut oil consumption. It won't happen overnight. People are not going to junk their SUVs, but they will begin to make choices favoring greater fuel efficiency over time, exactly as they did when oil prices rose in the 1970s.

I agree that we should increase the tax on oil or oil products. I do not think that the tax should be limited to imported oil but rather to every barrel of oil produced or imported. To tax only imported oil provides a windfall to domestic producers. I think that we should capture that windfall in the form of taxes as well. I am not sure whether the tax should be on oil or on the finished product whether it be gasoline, diesel, fuel oil or whatever. As an oil consumption tax is regressive, some means of rebating the tax to low income Americans should be included.

The tax on oil will discourage consumption. The reduction in consumption will lessen our reliance on foreign oil, thereby reducing the trade deficit. It will also help protect the environment by reducing the amount of air pollution and greenhouse gases emitted.

Third, as demand for oil decreases, the leverage oil producing countries have over our foreign policy diminishes. Finally, the additional source of revenue to the federal government can help offset the looming fiscal crisis.

While taxing the consumption of oil is good policy, it is not in itself sufficient. We need an expanding supply of energy to fuel our economy. We may reduce consumption (or at least the rate of increase in consumption) by taxing oil but eventually we need to develop alternative energy sources to keep the economy growing and our standard of living rising.

Many liberals support efforts to develop some alternative energy sources. Solar power, hydrogen fuel cells, wind power and others are all on the liberal approved list. I heartedly approve of the development of all of those sources. The tax increase on oil will make solar and wind power more economically competitive. The administration has committed (at least rhetorically) to the development of fuel cell technology. Again, I approve of that position.

Krauthammer argues that nuclear power is a clean, safe alternative source of energy:

Liberals also need to get over their allergy to the cleanest form of energy, nuclear power. The administration has proposed support for a new generation of safer nuclear reactors. You'd think environmentalists would be enthusiastic. Nuclear energy is remarkably benign: no greenhouse gases or other pollutants strewn in the air, water and your lungs. Of course, like all energy, nuclear has its pollutant--there is no free lunch--but in this case you can find it, concentrate it, put it in box cars and ship it off to some God-forsaken mountain in the desert.

There is little doubt that nuclear power is a clean and safe form of energy. New technologies have moved well beyond the Chernobyl or Three Mile Island style power plants. The only environmental problem associated with nuclear power is the disposal of the radioactive waste and the transport of that waste.

I think that the best environmental solution to the nuclear waste problem is to space it. Package it safely, achieve exit velocity and point it at the sun. Eventually it will arrive at the sun where it will cause no problems. I have not looked at the economics of spacing nuclear waste and I suspect that the costs will be prohibitive. As Krauthammer points out, a Nevada mountain is a good storage site for the next 10,000 years or so. There is an excellent New Republic article that convinced me that the Nevada site is quite safe. I cannot locate that article online.

Environmentalists, like myself, need to look at the practical alternatives before opposing nuclear power. We are not going to convert to a solar power, wind power or hydrogen based economy anytime soon. The real, near term choice is between nuclear power and burning more hydrocarbons. I think that nuclear power has a clear environmental advantage over hydrocarbons. Environmentalists need to learn that perfect is the enemy of good. Nuclear power is better than the alternatives and environmentalists should embrace it.

Krauthammer’s third proposal is to open ANWAR for development of oil and gas production. I have generally opposed the opening of ANWAR as I am convinced that the quantity of recoverable oil and gas in ANWAR (at least at current prices) is insufficient to justify the environmental damage to a pristine wilderness.

If the opening of ANWAR is part of a package that includes significant steps to reduce oil consumption, then the environmental issue is more complex. It seems likely to me that the environmental benefits of reduced greenhouse gasses and reduced air pollution resulting from a decrease in gasoline and other oil consumption far outweigh the environmental harm caused by opening ANWAR to oil production.

While I remain opposed to opening ANWAR as a stand alone policy, the environmental cost of such a policy is one I am willing to pay in return for greatly reduced air pollution and greenhouse gas emissions.

I dislike increased consumption taxes on gasoline because they are regressive. I dislike the environmental damage caused by opening ANWAR to the oil companies. I dislike the creation of additional radioactive waste caused by an increase in the use of nuclear power.

Nonetheless, I would support a compromise involving all three of those policies because I like the air pollution, the emission of greenhouse gasses, the damage to our economy of huge trade deficits and the funding of those who spawn and fund terrorists even less.

A rational energy policy is possible but everyone, liberals and conservatives alike, needs to realize that perfect is the enemy of good. If Dr. Krauthammer and I can agree, there is hope yet.

2003-06-23T11:34:00.001-04:00

Savant For A Day

If you are reading this, there is a decent chance that you have at least a passing interest in autism, brain functioning or related topics. If so and if you plan on reading one thing today please read this article entitled Savant For A Day.

A researcher in Australia is using to device known as a Transcranial Magnetic Stimulator to slow down and/or speed up certain regions of the brain. He is doing so to try to study how the brain works in general and also how autistic brains, particularly autistic savant brains, work. Some people’s performance in certain areas increases substantially while “on the machine.” The effect lasts only while the machine is operating. For instance, the author of the article became far more skilled at drawing while using the Transcranial Magnetic Stimulator. The TMS increases brain function in one area, thereby making the subject a “savant for a day.”

It is a fascinating article. Please take the time to read it.

2003-06-22T19:35:00.000-04:00

What A Guy

Amitai Etzioni is a sociologist and the father of the "communitarian” movement. The communitarian movement seeks a new path different from both libertarianism and big government liberalism. As such, communitarian thinking was crucial to the development of the policy approach of “third way” politicians such as Bill Clinton and Tony Blair. Even George W. Bush’s “compassionate conservative” rhetoric (but not his actual policies) seems rooted in the work of folks like Etzioni.

Amitai Etzioni also has a very fine blog, located here.

From one of his posts, we learn that at one point, The New Republic was interesting in running an article about Etzioni. That is not at all surprising in that TNR was an early voice supporting the idea of a third way.

An editor of TNR approached writer Ben Wittes (now a member of the Washington Post Editorial Board) about writing the piece. Wittes was a good choice as he had previously worked for Etzioni and knew him well. There was only one problem. The only story the TNR editor wanted Wittes to write was a “hit piece” on Etzioni. Wittes refused and the piece was not written.

Who was the editor who wanted the “hit piece?” None other than blogtopia’s own Andrew Sullivan. What a guy.

As Etzioni concludes, “Ben is still a decent fellow and Sullivan a skunk.”

2003-06-21T17:02:00.000-04:00

Fear And Loathing On The AM Dial

After being gone for about a month, Digby has returned home. Many have asked the question “Where is Digby?”

I cannot answer that question. Wherever he has been, I think that he has been reading Hunter Thompson again. Consider, for example, this:

In fact, I am alive and well and returned from a journey into the heart of darkness of George W. Bush’s America. Eschewing my pansy-assed effete internet habit for a time, I stupidly got myself hooked on the hard stuff and ended up ripped out of my mind on Rush's AM Ecstasy. Living on burnt meat and raw porn, Fox news and liberal bashing, my mind devolved into an altered state of consciousness, awash in arrogance and testosterone, transformed into the hostile fugue state of the talk radio junkie.

That style of writing is reminiscent of Fear and Loathing On The Campaign Trail, no?

2003-06-21T14:57:00.000-04:00

A Juror’s View

I am always eager to hear about people’s experience serving on juries. Robert of Byrd’s Brain recently served as foreperson of a jury deciding a relatively small personal injury action. A nine year old girl was hurt in a car wreck. She suffered relatively minor injuries (a total of $3,800 in chiropractor and physical therapy bills with, apparently no hospital charges or treatment by an M.D.). The defendant admitted liability. The only issue remaining for jury determination was damages.

All in all, it was not a momentous case (although I am certain it was important to the people involved). It was the type of small tort case that is tried in courtrooms across America every day. I was struck by Robert’s report on the seriousness of the jury:

I was quite impressed with my fellow jurors, besides picking me to be the Foreman, they impressed me with how seriously everyone took the trial. The jurors were variously bored, didn't want to be there and having fun. But no matter what their background, or their desire to serve, each juror had opinions and cared about reaching the right verdict. This wasn't surprising to me, but it was heartening to see. The jury system does work.

In my experience, almost every juror makes a concerted effort to reach a fair result. They listen to the evidence and arguments from both sides and do their best to apply the law as the judge instructs.

Juries do not always arrive at the decision I would prefer but I am consistently impressed with seriousness with which they approach their thankless task.

2003-06-19T21:09:00.000-04:00

Could You Footnote a Source Please?

As has been widely discussed, former New York Times reporter Jayson Blair has been fired for simply making up facts and putting them in news stories. Much of the criticism of the Times resulting from Blair’s dishonesty is justified. After all, it is not that difficult to fact check the stories, and accuracy is the most important quality of a newspaper.

Some of the criticism of the Times I found to be simply ironic. For example, in a Townhall column, Ann Coulter, in her inimical style, wrote:

The New York Times is to be commended for ferreting out Jayson Blair, the reporter recently discovered making up facts, plagiarizing other news organizations and lying about nonexistent trips and interviews. A newspaper that employs Maureen Dowd can't have had an easy time settling on Blair as the scapegoat. Blair's record of inaccuracies, lies and distortions made him a candidate for either immediate dismissal or his own regular column on the op-ed page.

It has been said that a writer should write about what he or she knows. That certainly qualifies Coulter to write about “inaccuracies, lies and distortions” in op-ed columns. For instance, Coulter begins her latest Townhall column as follows:

If you are one of the millions of Americans who recently canceled your subscription to the New York Times, you may not know that we are in the middle of a civil-liberties emergency...

Is it true that “millions of Americans” have “recently canceled your subscription to the New York Times”? That does not seem to be a difficult fact to check. The New York Times is a publicly traded company and the circulation of a newspaper is certainly an item of information that many potential investors would want before buying the Times’ stock.

A quick Google search for “New York Times circulation” located this page on the first page of listings. That page shows the circulation figures for the Times from 1988 through 2002.

The totals are remarkably consistent with daily circulation running about 1.1 million copies and the Sunday circulation about 1.6 million copies. Those figures do not show the current circulation numbers but is it obvious that Coulter’s claim to “millions” of recently canceled subscriptions is simply false as the Times has never had “millions" of subscribers to lose.

Perhaps Ann Coulter should beware of throwing too many stones about inaccuracies on op-ed pages when her house is constructed of glass.

2003-06-19T17:43:00.000-04:00

Invested in Scandal

Grace Slick, formerly the lead singer for the Jefferson Airplane quit the rock and roll business once she turned fifty remarking that "I don't like old people on a rock and roll stage -- me included."

The same should be true of political scandals. Unfortunately, some members of the right are so invested in the Clinton Scandal industry that, like an aging rock star, they simply cannot hang it up.

Despite the fact that Bill Clinton has been out of office for two and a half years, many of the Clinton Scandal mongers pine for a return to the heady days of the 1990s when they could have a daily fix of pseudo-scandal with their morning coffee.

Of course, even in their salad days, the worst of the scandal mongers never let actual facts disrupt their fantasies. They do deserve partial credit in one respect. While the pseudo-scandals may not have been based in truth, some, at least, were based on made up facts that, if true, would have been actual scandals. If Hillary had really killed Vince Foster and moved his body from her lesbian love nest to Fort Marcy Park, that would have been a real scandal. If Bill Clinton had really sold missile secrets to the Chinese in exchange for campaign contributions, that would have been a real scandal.

Today, those fully invested in the Clinton Scandal industry do not even have a good story line. Take for instance, the latest missive from Newsmax.

The headline trumpets Dick Morris’s new book and the latest scandalous revelation about the Clintons. What dastardly thing did Bill do? The headline blares: "Dick Morris: Bill Weighed Pardon for Hillary."

That is more pathetic than Keith Richards still rocking in skin tight leather pants. In the first place, a real scandal would require Hillary to have committed a crime. The Office of the Independent Counsel determined, after exhaustive investigation, that insufficient evidence existed to even indict her.

In the second place, it would seem that a real scandal would require Bill Clinton to have actually issued the pardon. Since he did not, it is hard to get outraged. The scandal industry has, apparently, now moved beyond what Bill Clinton actual did and even beyond what they imagined that he did. They have moved into the realm of allegedly heinous acts that Bill Clinton decided not to do.

Third, the article itself is far less inflammatory than the headline. The article makes clear that Hillary Clinton did not seek a pardon. When informed of the idea:

She flew into a rage, saying, 'If [Starr] decided to play that way, I will fight it with all that I've got. I don't want any pardon. I won't take any pardon."

The body of the story also makes clear that instead of a serious proposal, Bill Clinton was “thinking out loud” and that the thought was simply “speculation.”

Dick Morris has given an exclusive to Newsmax in an effort to feed the Clinton Scandal Freeperati who are desperate for a fix. They have no real scandal to feed their Jones. They are even out of made up scandals. Now they are reduced to fantasizing about how terrible it would have been if Clinton had chosen to do something he decided against.

A Paul Revere and the Raiders reunion with Herman’s Hermits as the opening act would be more current and less pathetic.

2003-06-19T07:04:00.000-04:00

Avoid Dementia --- Play Bridge

Researchers have now confirmed what bridge players have known for many years. Mental exercise such as playing bridge, chess, and other board games greatly reduces the risk of Alzheimer's and other forms of dementia. The Washington Post reports:

Playing chess, bridge or a musical instrument significantly lowers the risk of developing Alzheimer's disease or other forms of dementia, according to the most comprehensive study to examine the benefits of challenging intellectual activity among the elderly.

Seniors who regularly engaged in pastimes that stretched their minds -- sorry, watching TV doesn't count -- lowered their risk of developing Alzheimer's disease and other dementias by as much as 75 percent, compared with those who didn't exercise their minds, researchers said yesterday.

The report bolsters a growing body of evidence that exercising the mind through board games, social activities and education offers powerful protection against mental deterioration and disease.

Bridge is a perfect way to use both your intellect and your competitive instinct. To play on-line go here or here. You can watch or play against a World Champion or Warren Buffet or the head of Bear Stearns (Jimmy Cayne) almost any night (it is polite to know what you are doing before you sit down to play against the better players).

Look for me at OkBridge.com. I go by the name of DAM. To locate a face to face bridge club in your area click here. If you would like to download free software to learn to play, go here.

If you think competitive bridge is only for your grandmother or the tea and crumpet set, you should try it and find out how wrong you are.

2003-06-18T15:47:00.000-04:00

Give This Guy a Job

Dick Cheney’s press secretary is Jennifer Millerwise. I know very little about her so she must be doing a first rate job.

If Millerwise were to decide to spend more time with her family or to move to the private sector, who would be in line to replace her?

I have come to the conclusion that the logical replacement for Millerwise would be conservative author, commentator and general flack Dinesh D’Souza. That regrettable conclusion is really not my fault. The blame falls squarely on TBogg.

A short while ago, TBogg posted a link to McSweeneys. The link was to a transcript of outtakes for a DVD commentary on the Alien movies. Believe it or not, the commentary was provided by Dinesh D’Souza and Ann Coulter. As I was quickly moving on to read the next post, I noticed that TBogg instructed his readers to click through the link. “No excuses” said TBogg. Well, having “no excuses” I clicked through and read the transcript. What I found was perhaps the funniest thing I have read this year.

What does any of that have to do with Dick Cheney’s press spokesperson? Well, in reading D’Souza’s comments on the Alien movies, I noticed that he seemed to have perfect answers to some questions that could be addressed to the Vice President.

For instance, Dick Cheney was formerly the CEO of Halliburton. There were some funny accounting practices at Halliburton during his tenure. Apparently, Halliburton was reporting cost overruns as revenue even before its customers agreed to pay the cost overruns. In addition, Dick Cheney made a controversial videotape praising Arthur Anderson of Enron fame. Finally, questions have arisen over Halliburton being given non-competitive contracts for work in Iraq. How should the Vice President’s spokesperson answer questions on those topics? Here is Dinesh D’Souza discussing the Aliens movies:

D'SOUZA: … Does wanting to get rich by betraying your friends, or opportunistically using the Marines, necessarily make you a bad guy? Of course not.

That is such a perfect answer to unwarranted liberal attacks on the Vice President that I am surprised that D’Souza is not already working for the administration.

Mr. Cheney has also taken heat for his work on the Energy Task Force. Some have suggested that Mr. Cheney listened carefully to the energy companies while ignoring environmental concerns. D’Souza is ready to deflect any environmental criticism of the Vice President:

D'SOUZA: And look at the splendid, bucolic backdrop Ripley's looking at here. How beautiful the earth looks in the future. I think there's a lesson here for those alarmist, organic-farming, fruit-juice-drinking, garbage-sorting enviro-nuts who —

COULTER: That's actually a TV screen Ripley is looking at. Those trees aren't real.

D'SOUZA: Well, it's a great simulation, an ingenious solution.

If Mr. Cheney’s energy policy results in losing all of our trees, D’Souza has an ingenious solution. We can just replace the trees with pictures of trees. Nobody but an “alarmist, organic-farming, fruit-juice-drinking, garbage-sorting enviro-nut” would object.

Remember, if the administration hires Dinesh D’Souza as a spokesman, it is all TBogg’s fault.

Update: It was not clear to at least one reader that the post above and the "transcript" linked to were both intended as satire. It now is.

2003-06-18T12:58:00.000-04:00

Neuroeconomics

The New York Times reports that researchers are developing a new field of study known as neuroeconomics:

These researchers are busy scanning the brains of people as they make economic decisions, barter, compete, cooperate, defect, punish, engage in auctions, gamble and calculate their next economic moves. Based on their understanding of how fluctuations in neurons and brain chemicals drive those behaviors, the neuroscientists are expressing their findings in differential equations and other mathematical language beloved by economists.

Among the techniques of the new science is to scan brains while people play what is known as the ultimatum game:
In the ultimatum game, the first player is given, say, $10 in cash. He must then decide how much to give to a second player. It could be $5, the fairest offer, or a lesser amount depending on what he thinks he can get away with. If Player 2 accepts the offer, the money is shared accordingly. But if he rejects it, both players go away empty-handed. It is a one-shot game, and the players never meet again.

Most people in the shoes of Player 2 refuse to take amounts under $2 or $3, Dr. Cohen said. They would rather punish the first player than feel cheated. "But this makes no economic sense," he said. "You're better off with something than nothing."
Brain images showed that when players accepted an offer they viewed as fair enough, a circuit in the front of their brains that supports deliberative thinking was activated.

But when they rejected an offer, the insula — which monitors bodily states, including disgust — overrode the frontal circuit. The more strongly the insula fired, the more rapidly the person rejected the offer, Dr. Cohen said. Moreover, the insula fired well before the person pushed the button to refuse an offer.

Economists can use this finding to quantify the contribution of emotion and deliberation in making decisions, Dr. Cohen said. It is possible to calculate how much emotion goes into evaluating the worth of economic activities and to study the neural underpinnings of bargaining when people don't want to let others take advantage of them.

I think that the development of neuroeconomics is a great advance. I have spent long hours trying to understand the functioning of the human brain without success. I have also spent considerable time trying to understand various aspects of economics, again without much success.

The beauty of neuroeconomics is that instead of two subjects I do not understand, I can combine my ignorance into one tidy subject. That is known as efficiency.

There is no reason to stop at neuroeconomics. I propose a new field of study known as chemistrycarmechanicology. Again, two subjects in which my ignorance is legion combined into only one subject.

The possibilities are endless. Whatwomenwantstockpickingology.

Quantumphysicspopularmusicology.

At this rate, the number of subjects of which I am completely ignorant should be reduced by half. That is a huge advance in my book.

2003-06-17T16:28:00.000-04:00

Today’s Tour

Natasha has a wonderful post about growing up with undiagnosed Asperger’s Syndrome. The post is not only a compelling personal story but also provides lots of good advice for others. It is a must read for anyone on the spectrum or for anyone who has a loved one on the spectrum.

Oliver Willis smacks Bill O’Reilly with a copy of the Constitution.

Billmon is concerned about the trade deficit. The implications are pretty scary.

Teddy at ISTES has a couple of very interesting posts. First, Teddy argues that at least in terms of employment, the current downturn is approaching historic levels. Secondly, in this, post, Teddy points us to a Prudent Bear article concerning the possible consequences of households using refi funds to purchase financial assets. The Prudent Bear article notes that homeowners are borrowing against their homes at interest rates greater than they receive when the money is reinvested in bonds and equities. Should that position unwind, a real possibility of a liquidity trap could ensue with a host of dire consequences.

2003-06-16T13:25:00.000-04:00

Milestones

Eighteen years ago yesterday, I made the best decision of my life. Happy Anniversary Deb. Eight years ago today, our lives changed again. Happy Birthday Bobby. Your mom and I love you very much.