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Friday
Jan222010

420. Expanding the Forbidden City

Anyone out there think it's coincidence that the Supreme Court should choose this moment in our political history to declare that insurance companies have a constitutional right to spend unlimited amounts of cash to defeat members of Congress who vote in favor of health care reform?

My Examiner.com column, written for a general audience, explains with as temperate language as I could muster the basic point of yesterday's ruling: some things are too important to be left to democracy.  They must instead be entrusted to our tribal elders, the Council of Wise People.

The Forbidden City in the middle of our public square is engaged in annexing surrounding territory with all the aggressive zeal of a Sun Belt city of the 1970s.  The Supreme Court has now declared that democratic  elections, being essential to our democracy, cannot be allowed to slip into the control of the people acting democratically through their elected representatives.

Instead, elections, being essential to our democracy of more than 300 million people, may only be regulated by any five of a select group of nine federal government workers.

But while you'd have to be exceptionally naive to believe it's coincidence that five Reagan and Bush  appointees should have issued such an opinion during the Obama Administration, I also don't think it's necessarily true they were primarily concerned with the political well-being of anti-reform candidates of their own party.

I think it more likely they were primarily concerned about themselves.  They wanted to make sure their political views carry the day.  Justice Kennedy tipped his hand when he wrote that a prior, marginally more rational opinion of Court

is undermined by experience since its announcement. Political speech is so ingrained in our culture that speakers find ways to circumvent campaign finance laws.

Because restrictions are ineffectual (not least because enforcement efforts are paralyzed by the Supreme Court's random interventions) therefore they're unconstitutional. Because corruption and dishonesty are widespread, therefore it's unconstitutional to attempt to make them less widespread.

This pretty explicitly equates "unconstitutional" with "not a good way of approaching the problem, in my opinion."  For Kennedy, ol' number 3, granted massive power over our government solely on account of his blandness, I think those terms have become interchangeable.

Wednesday
Jan202010

419. Texas [redacted]

The great medical journalist and commentator Atul Gawande published an eye-opening piece about health care costs in McAllen, Texas, last June.  He reported that health costs were twice as high in McAllen, in Hidalgo County down near the Gulf, than in demographically-similar El Paso.  

Although Gawande didn't use the kind of recklessly intemperate language one might expect from, for instance, a blogger, I know for a fact that at least one reader came away from his article believing the explanation was that McAllen's medical establishment was comprehensively corrupt.

It may not have been only the medical establishment.  From today's McAllen Monitor:

Thousands of criminal cases in one of Hidalgo County’s misdemeanor courts were called into question Wednesday with the arrest of two of its employees on bribery charges.

Daniel Vega, the court coordinator in County Court-at-law No. 5, and his assistant Javier Mireles were caught on video offering to dismiss a case in exchange for a $4,000 payment, Hidalgo County Sheriff Lupe Treviño said.

And while their arrests are tied to one specific payment that came from an undercover investigator, authorities believe similar behavior may have been going on for years, affecting hundreds of criminal defendants.

“I don’t believe that this was their first time at bat,” the sheriff said.

Four thousand for a misdemeanor??

But exactly how the pair allegedly engineered the dismissal of the case in question remained unclear Wednesday afternoon. Charging documents — including the probable cause affidavits filed for both their arrests — were sealed to protect the ongoing investigation, [District Attorney Rene] Guerra said. ...

All filings pertaining to the bribery scheme will likely remain barred from public review for the considerable future, said Guerra.

“To be honest, I want to seal them for as long as possible,” he said. “I want to protect the investigation right now.”

Investigating corruption in secrecy seems to be a new Texas tradition.  El Paso as spent five years with a political corruption investigation carefully hidden from the voters

One of the accused in the El Paso case is a former Texas district court judge, the wider-than-he-is-tall Manuel Barraza, who was indicted just three months after taking the bench, apparently based on his alleged pre-swearing-in plans to work out a private and mutually-beneficial deal with an alleged drug dealer.

We'll be hearing more about El Paso in coming months.  (Or will we?)  But in the meantime, see if you notice any consistent threads running through the headlines of the most-viewed stories on the El Paso Times website for the past 12 hours:


# Man accused in wife's killing was from El Paso
# Kidnapper testifies Texan was killed in Mexico
# Man allegedly runs former wife off road
# Mexican prison brawl leaves 23 dead
# Student sex case against former Andress coach dismissed
# 3 alleged gang members charged in death of Texas man
# Three teenagers charged in Adam Espinoza murder
# No decisions yet for Marmolejo
# Deaths may be murder-suicide
# Barraza trial: Sheriff's detective initiated investigation of ousted...

Man, I tell you, El Paso belongs in New Mexico, which is where it was administratively lodged for the first couple of centuries of its existence.

Monday
Jan182010

418. The miracle and mystery of the law

Equal Danger, by the great Sicilian novelist Leonardo Sciascia, is set in an unnamed country not, perhaps, entirely unlike Italy.  The hero, Rogas, goes to see President Riches of the Supreme Court.  As tactfully as he can, he suggests judicial error may have resulted in the conviction of an innocent man:

"You are a practicing Catholic?"

"No."

"But Catholic?"

Rogas made a gesture that signified: like everyone else.  And in fact he did believe that all men everywhere were a little bit Catholic.

"Of course, like everyone else," the President interpreted him correctly.  Assuming the posture of a priest at catechism: "Let us take, well, the Mass, the mystery of transubstantiation, the bread and the wine that become the body, blood, soul, and divinity of Christ.  The priest may even be unworthy in his personal life, in his thoughts.  But the fact that he has been ordained means that at each celebration of the Mass the mystery is completed.  Never, I say never, can it happen that the transubstantiation not take place.  And so it is with a judge when he celebrates the law: justice cannot not be revealed, not transubstantiated, not completed.  A judge may torment himself, wear himself out, tell himself, 'You are unworthy; you are full of meanness, burdened by passions, confused in your ideas, liable to every weakness and every error'--but in the moment he celebrates the law, he is so no longer.  And much less so afterward.  Can you imagine a priest who, after celebrating Mass, says to himself, 'Who knows if the transubstantiation took place this time, too?'  There's no doubt; it did take place.  Most assuredly.  I would even say inevitably. Think of that priest who was seized by doubt and who, at the moment of the consecreation, discovered blood on his vestments.  I can say this: no judgment has ever bloodied my hands, has ever stained my robes..."

Without meaning to, Rogas made a sound much like a groan.  The President looked at him with disgust.  And as in a fireworks display, when everything seems to be over, in the stunned silence and darkness one more luminous, elaborate, and thunderous rocket explodes, [President] Riches said, "Naturally, I am not a Catholic.  Naturally, I am not even a Christian."

"Naturally," Rogas echoed.  And indeed he was not surprised.

The President was diappointed and irritated, like someone who has just performed a magic turn only to have a child jump up and say he has understood the trick.  With a note of hysteria, he proclaimed, "Judicial error does not exist."

(As translated by Adrienne Foulke.  The Italian title is Il contesto.  Max von Sydow played President Riches in the 1976 film adaptation Excellent Cadavers - a title that has since been reused.)

If you haven't read Sciascia, start with The Day of the Owl.

Sunday
Jan172010

417. It keeps getting worse in NE Pennsylvania

You and I might think it's a bad thing for a judicial standards board to ignore detailed evidence of wrongdoing by judges on the ground that the wrongdoing is so wrong that the FBI is investigating it.

But that's the difference between you and I and judicial standards boards:

When the [Pennsylvania] state Judicial Conduct Board received an anonymous eight-page complaint in 2006 about alleged wrongdoing by a Luzerne County judge, it reportedly deferred conducting an investigation because there was an ongoing outside criminal probe of the judge.

That judge, Michael T. Conahan, and another, Mark A. Ciavarella Jr., were charged last year by federal authorities with taking $2.8 million in kickbacks to send juveniles to for-profit detention centers in what has become known as the "kids-for-cash" scandal.

This month, the board reaffirmed its discretion to defer with newly adopted operating procedures...

Paul H. Titus, a lawyer retained by the board, said yesterday that "there are very practical reasons for the board deferring to prosecutors." Titus said the board does not have the resources to conduct criminal investigations, especially for something like the Luzerne County probe, which involved federal prosecutors, the FBI, and the IRS over three years.

Of course no "deferring" of any kind was going on.  No one was suggesting the board should conduct criminal investigations, just as no one suggested the FBI should investigate violations of the Pennsylvania Code of Judicial Conduct

The board's explanation for its inaction was gibberish.  I sympathize with Mr. Titus, though.  State judicial standards boards exist to preserve "public confidence in the integrity and impartiality of the judiciary."  A coherent explanation would have defeated that purpose.

But wait!  There are many more sewers left to be explored in the Scranton Wilkes-Barre area:

A northeast Pennsylvania judge who took over a capital murder case from another judge who pleaded guilty to corruption charges has been accused of pushing his wife down and choking her.

Perry County Senior Judge C. Joseph Rehkamp has been charged with simple assault and harassment.

State police say Rehkamp and his wife were arguing Saturday night at their home in Plymouth Township when another person broke them up. Police say Rehkamp fled.

You can see Judge Rehkamp's official photo at the Citizens' Voice website.  It could pass a mug shot but for the wood paneling background with the obligatory flag.  The paper describes the circumstances of the unpleasantness with the circumspection of the libel-shy:

The argument turned physical, and police said Rehkamp pushed the victim down, slamming her into a chair, then placed both hands on her neck and began choking her until a third party interrupted. Rehkamp then fled the scene.

The argument turned physical, mind you.  That's better than a person becoming violent. 

I think we can accept as a given that Judge Rehkamp will skate, unless he's made some particularly ill-advised choices about his personal enemies.

Oh, and the big murder case Rehkamp was slated to preside over?  It had to do with a husband accused of killing his wife.  And even that story has an angle that shines yet more light on the spectacularly dysfunctional court system of northeastern Pennsylvania, according to newspaper stories posted over at Family Court Crisis.

Sunday
Jan172010

416.  Responsibility

Food, Inc. is a documentary about the concentration of market power in the United States responsible for the sameness and mediocrity of our chain restaurants, radio stations ("chain radio stations" is very nearly redundant), newspapers, beer, and food suppliers.

Food, Inc. is better known as agitprop about food, but I think the "inc." part of the title has still-broader significance.  Among other things, the film describes the gigantic increase in food poisoning in America since the 1960s, an increase that has happened gradually enough that outbreaks and "meat recalls" no longer strike us as unusual.

When I was a kid, way back in the last century, I loved the (non-alcoholic) eggnog my mother made, with the shake of cinnamon on the froth.  Nowadays she'd be arrested for child abuse after my second trip to the ER with samonella poisoning.

Food poisoning is efficient, and not just in the sense documented by Food, Inc.: because the massive concentrations of livestock and raw food utilized by factory farming present wonderful opportunities for pathogens to thrive.

It's also efficient in the sense that it shifts the burden of ensuring food safety from the producer to the consumer.  Economic efficiency of the type first idealized and then fetishized by our judges (see post 414) is why we've gotten so used to reading food safety tips.  As the big four meatpackers consolidated their hold over the market, they were able to externalize a significant portion of the cost of food safety. 

The last pathogens will always be the hardest to eradicate, and the big meatpackers, like the big vegetable and fruit growers, have assigned that job to us.  They've deliberately - efficiently - made themselves less good at producing safe food.  Mediocrity is the only rational strategy, once one's market dominance is secure.

Food, Inc. depicts chicken farmers under the thumb of the big poultry packing companies.  And that's the half-hidden theme running through the series of four posts that started with post 413 and ends with this one.

Antitrust law was never about economics, as the arrogantly ignorant professor-judges claimed and may actually have believed.  (See post 414.)  Still less was it about economics as understood by lawyers and judges who couldn't work their way through an 8th grade algebra book with the help of a tutor.  Antitrust is all about power.

Market power, obviously, but also political power, as the Washington scenes of Food, Inc. make clear.  Unfortunately, that's the least interesting sequence of the movie, because it doesn't tell us anything we don't already know.

Attempting to regulate the meatpacking industry is as difficult as attempting to regulate financial markets (see post 415) for the same reason: because market concentration produces vast wealth, and vast wealth buys political influence.

The vast concentration of wealth was facilitated by our judges when they jumped on the fad of refusing to enforce antitrust law, relying on the studiedly unworldly theory that market concentration benefits consumers.  (See post 414.) 

The political clout of the big-asseted corporations was immeasurably helped by the Supreme Court's refusal to allow the American people to maintain democratic control over their own election laws, based on the justices' epically fatuous theory that because money talks, it's speech

The Supreme Court almost always rules in favor of itself.  Its members predictably vote for the result that concentrates the maximum power in themselves, in the federal courts, and in the judiciary generally (in order of priority).

Shooting down executive branch attempts to enforce laws against market concentration and manipulation, like shooting down legislative branch attempts to control corruption in elections, makes the judiciary more powerful directly, in a bwana-and-lion way. 

But it also has that effect indirectly, by weakening the other branches.  The Supreme Court benefits from a weakened Congress, as Stuart Taylor, Jr. points out.  De-legitimizing democracy is useful for those who would prefer what Taylor calls "judicial despotism." 

"Politics," "economics" and "law" aren't separate categories of life.  Their separation exists only in the abstract.  In the concrete they're all just ways of controlling the lives of ordinary people.  Saying that monopolistic and market-dominating corporations have political influence over Congress, a point made in Food, Inc., is only another way of saying that they have more power than individual members of Congress.

"Too big to fail" is just a modern term for the concentration of power in the hands of actors with no responsibility to the people whose lives they alter.  It's an acknowledgment that we're privatizing - "outsourcing" might be a better term - the right of self-government.

In a democratic nation, the opposite of "government" isn't freedom, regardless of what the bumper sticker says.  The opposite of democratic government is non-democratic government.  When economic power is so concentrated that economic actors exercise power over Congress, they have become part of our government: their actions govern the way we live our lives.

By manipulating the law to concentrate political power in their own hands, judges have succeeded in concentrating both economic and political power in the private organizations that control the details of our daily lives.

If we took our judicial system as seriously as it deserves, it wouldn't occur to anyone to question judges' responsibility for the planned mediocrity and increasingly-privatized government that has come to envelop the nation like Beijing air.

Saturday
Jan162010

415. No tomorrow

From the Stanford alumni magazine:

Shortly after she was named to head the Commodity Futures Trading Commission in 1996, Brooksley E. Born was invited to lunch by Federal Reserve chairman Alan Greenspan.

The influential Greenspan was an ardent proponent of unfettered markets. Born was a powerful Washington lawyer with a track record for activist causes. Over lunch, in his private dining room at the stately headquarters of the Fed in Washington, Greenspan probed their differences.

“Well, Brooksley, I guess you and I will never agree about fraud,” Born, in a recent interview, remembers Greenspan saying.

“What is there not to agree on?” Born says she replied.

“Well, you probably will always believe there should be laws against fraud, and I don’t think there is any need for a law against fraud,” she recalls. Greenspan, Born says, believed the market would take care of itself.

Greenspan denies he said that, and as proof cites his after-the-fact self-justifying book.  One fact remains, though: he fought (along with Robert Rubin and Lawrence Summers) against regulation of the derivatives market. 

Oh, and a second fact, too: unless Greenspan has grown comfortable with the idea that history will remember him as a buffoon servicing villains, his incentive for lying is approximately 100,000 times greater than Born's.

Of course, Greenspan was right, in one way: the market is taking care of itself, with a severe recession.  Why, in another half-century, 2008-10 will be just a distant memory.

Unfortunately, I think it's possible that Greenspan and most of the Wall Streetish brain trust of the Bush and Clinton administrations misunderstood the market involved. It wasn't a derivatives market.

Once Wall Street bonuses reached a certain astronomical level, they became a market.  Derivatives and other ways of packaging dog shit (sorry, I just couldn't resist showing off my mastery of Wall Street lingo) were methods for maximizing returns in the bonus market.

As soon as annual bonuses topped the $10 million mark - and they topped it by a lot -- the market incentives were clear: grab with both hands and you'll be set for life

The future of the company, and even of one's own career, was pretty meaningless compared to that.  After all, if you don't need more money, you don't need a Wall Street career.

So the Wall Street types naturally, rationally, behaved like there would be no tomorrow.  No going into the office tomorrow was the whole idea.

Second verse, same as the first?  Here's a story from another profession:

Candlewood [Timber Group] retained Debevoise & Plimpton after it brought the case. But about eight months later, with trial only two months away, Candlewood became unhappy with Debevoise's work and brought in Susman Godfrey to try the case, with Debevoise staying on in a secondary role.

Despite the secondary role,

"Over a 10-month pertrial and trial period--during which time D&P had the assistance of BM&F and later Susman--D&P managed to bill for more than 15,000 hours, the equivalent of 10 lawyers working full-time for the ten-month period," Candlewood's counterclaim alleges.

That's right, counterclaim.  Debevoise & Plimpton started the fight by suing Candlewood for $6 million in unpaid legal bills.  Six million dollars for second-chairing a trial on what, by big-firm standards, was a rocket docket.

Those excerpts are from the Am Law Litigation Daily.  Here's a little more, as one would expect, from Above the Law:

[Debevoise] assembled a team of between 87 and 119 time-billers (the bills are so obfuscatory that even the number of people who billed time cannot be determined with accuracy) and missed crucial aspects of the case.

It shouldn't be a surprise that a team of so many time-billers would miss crucial aspects of the case.  Each of the 87-119 couldn't hope to acquire even as much perspective as a blind man investigating an elephant.  They were so many blind ants crawling over the case files.

But then, why would any of the 87-119 want to acquire  perspective on the case?  What would be the point?  Each time-biller was competing in the firm's own internal market.  In good years (Candlewood's case went to trial in 2006) that was a market offering promotion, prestige and compensation galore.  The time-billers were racking up points toward their year-end bonuses. 

Take a look at Debevoise's would-be dignified response to the humiliation it brought upon itself.  There's something almost sublime about the way the press release sounds the two notes most characteristic of parasitical law: inflated self-regard combined with an utter lack of self-respect.  That seemingly-paradoxical combination of attributes is well-known to all legal practitioners, shovelers and shovelees alike. 

Still, it must be acknowledged that the combined fees of the 87-119 didn't even add up to an  investment banker's year-end bonus during those get-out-while-the-getting's-good years.  As economic parasites, lawyers are strictly minor league.

To circle back to Greenspan, fraud of one kind or another - not necessarily, or even primarily, the kind of fraud that our courts are prepared to recognize as tortious or criminal - isn't an irregularity in the smooth operation of markets.  It's the market operating smoothly.

The problem is that in the smoothly-operating market, the timber company becomes the timber.

Monday
Jan112010

414.  Mediocrization

John Cassidy's "Letter from Chicago" in the January 11 New Yorker makes a good case for the proposition that the harm done by the pseudo-Nobel for Economics has outweighed all the good done by the prizes actually established by Alfred Nobel's will.

It makes the case just by mentioning in passing all the various pseudo-Nobels rung up by University of Chicago economists.

The Chicago School economists are the ones who explained, with impressive mathematical formulae and even more impressive condescension, that the financial collapse of the past 18 months couldn't happen.  Cassidy reveals that many are still prepared to show us that our fears remain as ignorantly foolish today as ever.

Eugene Fama, the Robert R. McCormick Distinguished Service Professor Finance (why aren't professors in general embarrassed by Ruritanian titles like that? – and why isn't Fama, in particular, embarrassed to be associated with "the Colonel"?),  tells Cassidy: "I don't know what a credit bubble means.  I don't even know what a bubble means.  These words have become popular.  I don't think they have any meaning."

Cassidy finds it necessary to add: "Fama wasn't kidding."  Fama wasn't kidding because he "propounded the efficient-markets hypothesis, which underpinned the deregulation of the banking system championed by Alan Greenspan and others."  

Fama and his acolytes can explain that when a market rises precipitously, it's evidence of its efficiency.  More evidence of its efficiency is provided by the equally-precipitous collapse in which everyone suffers except those who caused the collapse, provided they had the larcenous sense to cash out in time.  

That's why Cassidy errs in referring to the "efficient-market hypothesis."  A hypothesis is falsifiable.  But efficient-market dogma can only be proved right and right again.  It's an improvement on actual knowledge.

In a blog entry accompanying his article, Cassidy refers to Richard Posner, the federal judge/professor/author/object of envy who even gets his own unflattering full-color caricature in The New Yorker.  Cassidy writes of "Posner, who recently converted to Keynesianism..."

"Converted" is the right word.  Posner went from absolute certainty in one faith to absolute certainty in another, like the post-Trotskyite-neocons or sad old David Horowitz, still Mau-Mauing university authorities 40 years on.  Some people just need an external structure of belief, and it almost doesn't matter what it is.

Before his conversion, though, Posner was, with Robert Bork, the great champion of the theory that antitrust laws harm competition and that everyone would be better off if we just let economic actors go at it.  Here it is from his days of being insufferably arrogant on the other side, squaring off against retired Justice Potter Stewart.

From a legal point of view, Stewart mops the floor with Posner, but Posner wins the day: he wasn't interested in law, but in correcting the ignorant, which, being a professor and appellate judge, he was especially well-situated to do: he'd never had any occasion to doubt his expertise.

I read Bork's The Antitrust Paradox: A Policy at War with Itself, but he lost me in the chapter that explained how predatory pricing could never happen.  You know, like a big airline reducing fares to undercut a low-price rival until the rival is forced to abandon the route or is driven out of business.  Bork explains how that could never happen.

Bork was a federal appellate judge, too, just like Posner.  Both were appointed by President Reagan.  And both consciously set about altering antitrust law, which is to say, altering the structure of the American economy and the relationship of ordinary Americans to the biggest corporations.

Amazon's "product information" describes Bork's book this way: "Shows how antitrust suits adversely affect the consumer by encouraging a costly form of protection for inefficient and uncompetitive small businesses."  That was the goal: efficiency, by rooting out the smaller competitors, actually improves things for consumers.

Bork's and Posner's ideas carried the day and, beginning with the administration of the president that appointed them both to the federal appellate bench, the federal judiciary stopped enforcing antitrust laws.  Inefficient and uncompetitive small businesses were driven from the market and, in the happy world they helped produce, consumers enjoyed....

...Microsoftness.  (See post 413.)   Efficiency serves the purpose of acquiring a commanding position in the market, but Microsoft-style mediocrity is the only rational strategy for any company that has achieved that position.

Consider, for example, K-Mart, which not so long ago towered over its puny rival Wal-Mart, and GM, which as recently as 1979 sold just about half of all cars bought in the U.S. 

K-Mart and GM engineered their own downfalls carefully, with no shortage of highly-paid of MBAing.  Rather than trying to produce a good shopping experience or good car, they tried to produce good-enough ones.  They followed Microsoft's 85% rule, trying to exert the least effort necessary to maintain market share.  (See post 413.)  

That was efficient, and Bork and Posner and their many judicial groupies assured us that efficiency would make life better for American consumers. In fact, they proved it, to their own satisfaction, with the words of their opinions.  And the only argument against their assurance was reality, which never counts for much inside the courtroom.

Outside the courtroom, however, the thriving little businesses shuttered by the arrival of K-Mart didn't spring back to life as K-Mart embraced its identity as National Lampoon's Swill-Mart.   The legendary Roger Smith's helmsmanship at GM didn't, as theory would have predicted, open the door for nimbler competitors to revive the American car industry.

I'm sure Bork and pre-conversion Posner could have explained why their theories were not to blame.  Reality plays dirty.  I'm confident they, and the teams of University of Chicago economists who supplied them with their theories, would have rejected any hint of responsibility for the creeping mediocrity that, since their accession to power, has spread across the country like a leaf blight.

It's hard to think of any aspect of American life that hasn't been made worse by the market concentration of the post-Bork, post-Posner years.  Chain restaurants have done for quirky little local restaurants.  Most cities have seen their second-largest newspapers shut down.  Radio?  Turned into a sonic billboard.  (See post 18.)  And what is "too big to fail" but another name for excessive market concentration?

Big-box retail stores, with their ruthless "inventory control," stock only products that predictably sell quickly.  That's why, as Calvin Trillin once said, the shelf life of an average book is somewhere between milk and yogurt.  And that's why you only miss your local hardware store when you want one of those out-of-the-ordinary things -- one of those doohickeys that fall into the slow-moving 15% of a hardware store's inventory.  It would be foolish for Home Depot to clutter up its shelves with an item like that.

That's what making a fetish of efficiency leads to.  Efficiency is not giving the consumer what she wants, but forcing her to accept what's offered.  That's how you keep costs under control.

I don't think Posner and Bork, and the legions of smitten federal judges who took up the fad they started for unfalsifiable theory, bear sole responsibility for the creeping mediocrization of American life.  They don't even bear primary responsibility.  They just bear only a great big fat share of it.

Sunday
Jan102010

413.  Microsoftness

Since post 412 my PC has made two more trips to the ER.  The docs couldn't find anything wrong.  I've begin to worry they think I'm a psychosomatic complainer, or worse yet afflicted with a computer version of Munchhausen's by proxy syndrome

The basic symptom is that plugging in the iPod makes the mouse stop working.  That's a problem when you run (or try to run) a Microsoft operating system entirely dependent on that miracle of anti-ergonomic design, the computer mouse, for basic functions. 

The techs called me up and asked me to bring in those two components, but they were unable to recreate the problem on the bench.   Their best guess is that yet another USB device – the keyboard, printer or scanner – somehow interacts with the iPod to disable the mouse.  (Or could the problem lie with my incessant muttering under my breath?)

So now I've given up on fixing the PC and concentrate instead on managing its failures.  The black box now sits sideways beside my desk, giving me easy access to the USB ports (who passed the law requiring them to be located on the back?), so I can pull and plug the cords like an old phone exchange operator, making sure never more than the barest minimum number of devices are connected at a time.

Time to buy a new PC?  Ah, compadre, the pity of the thing is that this is a new PC, at least in its essentials.  I purchased it in increments last summer by sinking a couple hundred into trying to get my last one to continue working past its third birthday.  The techs salvaged the disk drives and sound card from that one and transplanted them into a new box with a new motherboard, new USB ports, and a brand new copy of a Microsoft operating system….

That last clause pretty much sums up the source of the problem, I'm afraid.  Steve Ballmer, the pudgy CEO of Microsoft, explained why last year, in a roundabout way, when he described Safari's and Chrome's market share as "rounding errors."

Market share.  That's what Microsoft is about.  Or, in the language of another era, monopoly.  As Ballmer told us, Microsoft's goal is to maintain its market position.  That means its goal is to make products good enough to maintain a monopoly market share.

Not good products.  Good-enough ones. 

People, and especially IT managers, won't switch to a competitor as long as Microsoft's operating system, browser, email program, etc., is just good enough that switching seems not quite worth the hassle. After many years of using Microsoft products, I've concluded the company has pegged the good-enough point at 85% of a really good product. 

If Microsoft made a 100% good operating system -- say, one that could run five different USB devices simultaneously without unpredictably freezing and losing its ability to re-start -- it would have wasted all the resources needed to get to that point from 85%. 

The reason Microsoft products are so consistently mediocre isn't that Microsoft doesn't know what it's doing, but exactly the opposite. Mediocrity is the only rational strategy for a monopolist.  Anything else is throwing away money.

Of course, Microsoft's strategic mediocrity means that American businesses are running computer systems that are only about 85% of what they could be.  Does the mediocrity of their computer systems affect their productivity?  Does gravity?  How about oxygen?

The cost of the missing 15% is paid by all of us in lost productivity and the familiar hair-tearing frustration, which has so aptly been termed Microsoftness, a word that deserves to be in everyday use.

Micosoftness is a development cost Microsoft has successfully avoided paying by shifting it to PC users.  It's a hidden cost, not so obvious as the Apple price tag, but I think it's steeper.

Still, I recognize that in one way it's unfair to pick on Microsoft.  They're only one particularly conspicuous (to a blogger) example of what it means to be living in this  second age of monopoly.  The next post will look at some other monopoliess, ones that, unlike Microsoft's strangehold, haven't had quite such a direct effect on the continuity of this blog.  And we'll get into the law of it, or rather lawlessness.

Until then, this is Ernestine, logging off.

Tuesday
Nov242009

412. Most cheering / most nauseating

Earlier this week the New York Times published a cheering article about the criminal justice system, observing--forty or fifty years late--that what's conventionally considered the "left" position on crime is indistinguishable from the "right." 

The headline was: "Right and Left Join Forces on Criminal Justice," but the article itself was an updating of the old joke about law school, where the dean tells the assembled first year students, "Look to the right of you.  Look to the left.  In three years, there won't be any left left."

Norman L. Reimer of the National Association of Criminal Defense Lawyers is quoted as saying: "The left and the right have bent to the point where they are now in agreement on many issues. In the area of criminal justice, the whole idea of less government, less intrusion, less regulation has taken hold."

But since when has less government, less intrusion and less regulation been a liberal mantra?  Especially when the particular intrusion and regulation we're talking about has to do with protecting the vulnerable from exploitation or harm at the hands of the powerful.

Reimer was saying that his organization pursues a right-wing agenda.  It's tremendously cheering, a real sign of progress in our society, that defense lawyers are beginning to feel comfortable coming out of their political closet, even if reporter Adam Liptak didn't seem to quite understand what he was hearing.

The article is also among the most nauseating I've ever read about the criminal justice system.  It is illustrated with a photo of Ed Meese, who as President Reagan's closest policy adviser did as much as anyone to inaugurate the modern era of mass incarceration.  Check out this graph--it's easy to spot the moment Meese acquired power.

The federal Bureau of Prisons reports that "[f]rom 1980 to 1989, the [federal] inmate population more than doubled, from just over 24,000 to almost 58,000."  Those were Meese's years.  He helped put in place policies that have kept on giving, successfully increasing the federal prison population three and a half times just since 1989.

Meese and Reagan's influence extended far beyond the federal prisons under their direct control.  Remember just say no?   In 1980, there were 19,000 people in prison for drug offenses.  In 2007, there were 253,300.  (On the other hand, we've completely eradicated illegal drugs... well, okay, at least we've substantially reduced their use... well, okay, at least we've driven up the prices... well, okay, at least we've screwed up a lot of people's lives.  Okay, then!)

This is the same Ed Meese who's now shocked, shocked and appalled to discover that the federal prisons are locking up lots of people?

The last three paragraphs of Liptak's Times story approach the real point of Meese's advocacy:

Some scholars are skeptical about conservatives’ timing and motives, noting that their voices are rising during a Democratic administration and amid demands for accountability for the economic crisis.

“The Justice Department now acts as a kind of counterweight to corporate power,” said Frank O. Bowman, a law professor at the University of Missouri. “On the other side is an alliance between two strands of conservative thinking, the libertarian point of view and the corporate wing of the Republican Party.”

Mr. Meese acknowledged that the current climate was not the ideal one for his point of view. “We picked by accident a time,” he said, “when it was not a very popular topic in light of corporate frauds.”

Who believes Ed Meese has ever "picked by accident a time" to take a public stand on anything?  Meese's point is that it's one thing for Republicans to lock up people who, if they were to vote, would overwhelmingly vote for Democrats.  But it's something altogether different for Democrats to lock up people who not only vote Republican but put their money where their financial interests are.

Meese's remarks can be read as hinting at something a step or two beyond that.  He seems almost to be saying that if wealthy people want to avoid being put in prison for their crimes, they need to do what it takes to get Republicans back in power.  If that's what he is hinting at, there's a word for that.

Monday
Nov232009

411. Sound familiar?

I've had to steel myself to write this post.  It involves more self-revelation than, frankly, I'm altogether comfortable with.  But I must see it through, if you, my reader, are to fully understand what follows. ...  You see, I'm the sort of person who sometimes borrows Teaching Company and Modern Scholar courses from the library and listens to them while driving, walking the dog, even while doing the dishes.

There, I've said it!  It feels good, too.  A sense of relief.  I feel like I can be myself

I had to open my heart that way it to explain how it is that I happened to have transcribed this bit from Professor Lawrence Principe's description of instruction at the University of Paris in the 13th century:

Well, what is Scholasticism, really?  Scholasticism is a method.  It's a method for studying any subject, theology, natural philosophy, medicine, whatever you like.  It is based upon not only on Aristotle's writings, Aristotle's Logic in particular, but also upon the format of medieval university instruction. 

The basic unit of the Scholastic method is the question.  The basic format of the writing is the commentary.  So the question and the commentary, these are basic to Scholasticism. 

Now, let's start with the question.  Students at university heard lectures.  But these lectures were supplemented regularly with disputations.  And the disputation is what is so fundamental about Scholastic method. 

It works something like this.  The master formulates a question very carefully, so there's a binary answer to it.  That is to say, it's a yes/no question.  They tend to begin with the question utrum in Latin, "Whether."  So they can be answered yes or no. A very clear answer is possible, in other words. 

The master's question is then answered by one student, called the respondens, or the respondent.  And he gives his answer to the question. 

After he's finished giving his answer, another student gets up, taking the role of the opponens, or opponent, and tries to demolish the argument of the respondens and answer the question in another way. 

After that's over, the floor goes back to the master, who gives as a verus solutio, a true solution, or a resolutio, a resolution, to the question, and then gives his reason for his answer. 

Now, all students had to participate in these kinds of disputations.

In the intervening 800 years, things have changed.  For example, we now call the master a "professor."  And the professor's question is usually called "the issue."  But the issue is still usually formulated as a yes/no question, and it still frequently begins with "whether" (though only rarely utrum).

And while it remains the case that all students must take their turns answering the question before the entire class, nowadays the role of the opponens is taken by the professor him- or herself.  And class generally ends without any kind of resolutio at all, much less a verus solutio.

I've long known that the style of syllogistic argumentation we're taught in law school is Scholastic to the bone.  And accepting as unchallengeable the latest revelation from the Supreme Court is pure Scholasticism, except that the Scholastics reserved their reverence for distinctly higher authorities.  And everyone knows the typical ridiculously bloated legal treatise is Scholastic--that's why we use terms such as "treatise" and "commentary" in the law. 

But while I knew the scholarly methods of 21st century law professors were medieval, I admit I hadn't realized their teaching techniques were old when Aquinas was young.