D-L-A Bugle

Mitt's Dog Whistle Misfires

2012-02-01T17:14:00.000-08:00

I can't help myself but comment on Mitt Romney's instantly famous remark:

“I’m not concerned about the very poor. We have a safety net there. If it needs a repair, I’ll fix it. I’m not concerned about the very rich — they’re doing just fine,”

Romney was assailed for saying he doesn't care about the poor, and defended on the ground that he also said he wanted to make sure the safety net was well patched, so his remark was "taken out of context."
But I don't think Romney misspoke at all. His saying he doesn't care about the poor is actually a dog whistle to the far right, who hate the poor and think that they are coddled by welfare. But he is basically decent, too, so he added that he wants to preserve the safety net, saying that as if it's a simple item on his to-do list. In saying that, Romney dog-whistled in reverse, because the right doesn't much like the safety net, or honestly think it's counterproductive. They are also very suspect of decency. So Mitt said two things, meaning them to balance each other. But he managed to offend everyone, even the people to whom he was actually pandering.

Our Tiny Little Debt Problem

2011-08-02T08:10:00.000-07:00

One of the oddities about the recent debt debate is the failure to recognize how small our problem is in one critical sense. While our deficits and government debts are high in absolute terms and high in relation to GDP, because interest rates are low, our debt service costs are actually quite low as well.

Going back 20 years to 1991, net interest as a percentage of federal government outlays has fluctuated between 5.0% (the low-point in 2010) and 15.4% (1996). This year, the estimated net interest expense is 6.5% of outlays, near the low end of the spectrum. As a percentage of GDP, the government’s interest expense is less at 1.6%, about as low as it has been since the 1960s. These figures, however, are expected to rise, partly due to an assumption that interest rates will rise and partly due to the rising debt level. Countries with real debt problems like Greece or Italy are required to pay interest rates that are many times the rate on U.S. treasury bonds.

But even after the projected increases, our federal debt service will remain low by historical norms. So there may be no real crisis and no reason to expect that the ratings agencies have any legitimate reason to downgrade U.S. bonds (except perhaps the government’s apparent inability to increase revenues above their historically low levels).

2 Cents on the Trillion Dollar Debt Crisis

2011-07-26T07:41:00.000-07:00

As the debt and deficit debate proceeds towards Armageddon (or not), it seems to me that most people, even the politically aware, have checked out. That’s what I’ve been doing more or less, and why not? Even before one starts to fathom a solution, one has to decide whether it’s really a problem, or how much of a problem. Last night, president Obama said: “We would risk sparking a deep economic crisis — this one caused almost entirely by Washington. Defaulting on our obligations is a reckless and irresponsible outcome to this debate.”

But Speaker Boehner responded by saying that a stopgap measure he has proposed is Obama’s creation He urged the president to sign a Republican plan to raise the debt limit. “If the president signs it,” he said, “the ‘crisis’ atmosphere he has created will simply disappear. The debt limit will be raised.” Everyone says everyone else’s deal is a non-starter, full of gimmicks, and in bad faith. MSNBC viewers watch and believe something very different from Fox viewers—and it’s all based on who one believes.

Then there is the legal issue of whether Obama can simply declare the debt limit raised without any legislation at all. This argument, not uncontoversial, was offered by law professors Eric Posner and Adrian Vermeule. They contend:

Our argument is not based on some obscure provision of the 14th amendment, but on the necessities of state, and on the president’s role as the ultimate guardian of the constitutional order, charged with taking care that the laws be faithfully executed. When Abraham Lincoln suspended habeas corpus during the Civil War, he said that it was necessary to violate one law, lest all the laws but one fall into ruin. So too here: the president may need to violate the debt ceiling to prevent a catastrophe — whether a default on the debt or an enormous reduction in federal spending, which would throw the country back into recession.

But whether or not there is a default—or whether it can be legislated or decreed away-- the underlying debate is real, so I decided to take a look at some of the numbers, which are available in a panoply of historical tables supplied by the Office of Management and Budget

Here are some of the numbers I found interesting:

On taxes (or revenues): Since 2000, tax receipts as a percentage of GDP have been declining. In 2000, the government revenue as a percentage of GDP has declined from 20.6% to 14.9% in 2010. It’s tempting to blame this all on the Bush tax cuts, but that can’t be right since the decline, while starting under President Bush has ebbed and waned. By 2004, taxes as a percentage of GDP fell to 16.1%. But then they started to rise, cresting at 18.5% in 2007. This level—between 18% and 19%— is pretty standard since 1960.

But then something happened, and I am not sure why. In 2009, taxes were just 14.9% of GDP. The same was true in 2010. In 2011, the OMB estimate is 14.4%. Perhaps this is due to the “stimulus” tax cuts. But whatever the reason for the drop in revenues, historically low taxes passed under Obama and not just under Bush, are part of the deficit issue.

But spending is part of it, too. In 2000, federal government spending as a percentage of GDP was 18.2%. That figure is as low as it had been since 1966. After that, spending starter to rise. The rise to 2008— spending was 20.8% of GDP— was gradual. But in 2009, spending ballooned to 25.0% of GDP. More, OMB expects it to stay above 22% through 2016. This is higher than it ever was under Bush or Clinton.
To find spending exceeding 22.5% of GDP, one has to travel back to —surprise— President Reagan, when spending was 22.8% of GDP in 1985 (and the deficit was quite high, though only half as high in percentage terms as it is now, even as the ‘80s recession was just as bad as the current one). Also, there does not seem to be a single fiscal year since 1952 (the Korean War) when spending increased by even __ of GDP, let alone 4.3%, as it did between 2008 and 2009. In the post-war era, jumps of 1% are big.

Thus it does seem fair to say that spending in “out of control.” But taxes are out of control too, but not in the sense that they have climbed too high, but that the government has let them fall too low. All of these numbers allow a case that Obama has been somewhat incompetent as president, that he is not the only mature one, a case that David Brooks makes well today.

But to get the debt problem fixed—though it’s still an open debate as to how much of a fix is needed— there has to be a way for both sides to agree to cuts in spending and increases in taxes. If this sounds obvious, well, I guess it is.

Pity the Passengers

2011-06-23T05:23:00.000-07:00

The Times has an op-ed about police searches of livery cab passengers. The NYCLU is on the case. But for years the routine civil rights violations of livery cab passengers has gone unremarked.

2 cents on the outer borough livery plan

2011-06-22T11:03:00.000-07:00

I have no dog in this fight, but...

Mayor Bloomberg's plan to license a new class of taxis that would be permitted-- for the first time-- to accept street hails in the outer boroughs and northern Manhattan has passed in the state assembly. Predictably the medallion and fleet owners are scrambling. The Senate has yet to act.

Medallion owners are predicting the destruction of their industry. That may be overstating it, but they are right to attempt to protect their investments in medallions which they purchased under the existing rules for as much as $750K.

I think they have a point: When the OB liveries take a fare from Brooklyn to say 34th Street, do you think they will then head back to Brooklyn? I think they will more likely poach a Manhattan fare (something many liveries do already). To do so may be illegal. But who will stop them, especially when customers become accustomed to hailing these OB cabs?

That's the real issue as I see it. If they OB cabs were truly confined to the OBs, then it might not hurt the yellows. But even now livery cabs take illegal Manhattan street hails. Under the new plan, this could get a lot worse. And the yellow cab drivers' earnings will be undermined, with the value of the yellow medallions withing in the wake.

Also, the TLC is also building its empire here. The 30,000 OB street-hail cabs is big new opportunity for regulation.

My Outer-borough taxi solution

2011-06-22T08:35:00.000-07:00

I wrote this as an op-ed about a month back. But it went unpublished:

In recent months, Mayor Bloomberg has proposed allowing livery cabs to accept street hails in New York City’s outer boroughs—an idea that has been broached an rejected several times over the decades. Just this week, the City Council passed a plan to increase the fines on cab drivers who refuse outer borough fares.

Both plans are designed, it is said, to improve taxi service outside of Manhattan. But both ignore the realities of the taxi industry. Any real solution must acknowledge how the taxi business works in New York: It’s a three-tier system, and yellow cabs are just one part.

The city’s 13,000 yellow taxis tend to go where the money is: Manhattan south of 96th Street and the airports. This is old hat.

Complaints about refusals are likewise commonplace. Even as someone who has defended taxi drivers accused of refusing service, I concede that it’s a real problem, though one that tends to be wildly overstated.

But the key fact is that in addition to yellow cabs there are livery cabs and black cabs. Black cabs are taxis that service employees of (mostly large) businesses through expense accounts. Livery cabs mostly service the outer boroughs. They are required to accept passengers by pre-arrangement only and may not accept street hails—though in fact many do. Given the existence of liveries—which outnumber yellow cabs—the idea that the outer boroughs have no taxi service is simply false.

The reason yellow cab drivers can be reluctant to take fares to Brooklyn or the Bronx is two-fold. Cabbies have concerns for their safety. Some of these concerns are imaginary, but some are very real: Taxi drivers are more likely to be killed on the job than police or firefighters. The second concern is economic: When a taxi does travel to an outer borough, it is likely to have to return to Manhattan empty.

Neither concern permits a cab driver to refuse, of course. But while beating up on taxi drivers may be good politics and favorite sport, it does not really address the problem.

Taxi drivers—mostly immigrants, all independent contractors—have never had much voice in corridors of power. But taxi fleet owners do. They will yell loud and long against any plan to allow livery cabs on their turf.

And the taxi owners have a point. The mayor’s plan to let liveries accept street hails would permit the dilution of their monopoly—a monopoly not granted for free, but bought and paid for. It is represented by taxi medallions, which are licenses that sell for as much as $750,000. People buy them based on what they represent: An exclusive on street hails in New York City. The medallions are leased in turn to taxi drivers for as much as $129 per shift.

While the creation of a property right to taxi licenses might not be a perfect system, it has become entrenched over decades. Owners will right fight to protect those rights. Drivers, meanwhile, will protest their loss of business—and ultimately will not be willing to pay as much to lease medallions. Over time, drivers will become less willing to leave Manhattan than ever. In short, by letting liveries take their turf, the city would have changed the deal.

There is, however, a better way: The city should give everyone who owns a medallion another license (or two or three) for free. The second license would apply to a new class of taxi that would be permitted to accept street hails outside Manhattan. This would open up yellow-cab type service in neighborhood where it exists barely or not at all. Perhaps these cabs could be painted a distinctive color of their own, say, lime green.

Permitting green cabs would, of course, dilute the value of the yellow taxi medallions. But since the owners of yellow medallions would be given the green medallions, they would be compensated for their loss. Simply letting current liveries accept street hails, by contrast, would injure the yellow cab owners without compensation.

By attaching a green license to every yellow license, the city could add thousands of cabs if that’s what it wants. And it would do so without causing a loss to those who have borrowed and saved to purchase medallions. The yellow cab industry would be much more likely to accept a plan that protects their rights. And New Yorkers far and wide would have more and better taxi service than they have now.
###

Recruiting Rewind - Who Succeeds with Success?

2011-06-20T11:55:00.001-07:00

D1CW (http://d1collegewrestling.net) has an interesting feature by Earl Smith comparing recruiting prospects with their results for the high school class of 2006. The feature, called “Recruiting Rewind” and which can be found at http://d1collegewrestling.net/Recruiting_2006.html, reprises a similar report the site did last year for the high school class of 2005 (http://d1collegewrestling.net/Recruiting_2005.html).

The reports list the top recruits coming out of high school and the top college wrestlers five years later when nearly all the recruits would have exhausted their eligibility. There are two results of note. First for the top 20 collegians in the ’06 class, just six were top 25 recruits. Second, of the top 20 recruits, just seven had outstanding college careers. (This total counts Henry Cejudo, who skipped college, but won an Olympic gold medal.) On the other hand, nearly all the top collegians were top 100 recruits, the exceptions being Anthony Robles, who the recruiting touts may have overlooked for obvious reasons, and Stephen Dwyer of Nebraska.

It’s startling that four top-10 recruits flamed out altogether, including two that attended OK State (Jordan Frishkorn of Oklahoma State; Billy Murphy (Iowa); David Rella (Penn State); Ben Ashmore (Oklahoma State)). The number one overall recruit, David Craig of Lehigh, had some success, but the D1C1 formula, which ranks wrestlers based on their NCAA and conference tournament successes, puts him at #41 in his class. Lehigh also attracted the #12 recruit, Pat Flynn, who had little college success.

The good news for Cornell is that their top recruits all performed well, if some not quite up to their recruiting par. Mack Lewnes was ranked #7 as a recruit and he became the third most successful wrestler in his class, behind two-time NCAA champ Jordan Burroughs and Lance Palmer, who was a four-time All American and, like Lewnes, a national runner-up. Lewnes comes out ahead of Jon Readeare and his fellow NCAA champs JP O’Connor and Robles.

Mike Grey was the #3 recruit. He didn’t fare as well in college, but he did rank #16 in his class, juts behind Mike Thorn and Montell Marion.

Justin Kerber was the #22 recruit. Again, he didn’t quite wrestle up to those expectations, but he is listed as #49 in his class.

The year before, Cornell had three top-50 recruits: Troy Nickerson, Adam Frey and Curtis Roddy. Roddy disappeared, but Nickerson won a NCAA championship. Frey, of course, died tragically, but was successful before that.

I suppose the lesson is that a college program absolutely needs top recruits if it plans to succeed. Nearly all the top wrestlers were top-100 recruits, if not top-20. On the other hand, may of the bluest of blue-chippers are long forgotten. Can it be said that some programs squander top talent more than others. Certainly injuries and academic failings play a part. I am not sure whether to be surprised that so many top recruits never succeed. But it would be interesting to make a study of what programs have done most with the least or the least with the most, or which ones have seen their star high-schoolers perform closest to expectations.

Demon Cabbie Rape

2011-05-14T06:28:00.000-07:00

Unless I am very wrong, there has never been a proven case of rape by a taxi driver against a passenger. Then why are all the New York papers reporting the alleged rape by a cabbie against a passenger that occurred last week? (Here it is on the Fox website an in the Times.)

It’s not that rape is a rare crime. According to the NYPD, there were 28 rapes last week and 489 on the year to date in the city. But only two are in the news. One is the alleged rape by a police officer, a case where the trial of the officer is winding down.

The other is a purported rape by a orange-turbaned taxi driver in the Williamsburg section of Brooklyn.

Here is how the story is being reported:

Cops have released a sketch of the rogue cab driver who they say tied up and raped his passenger at knifepoint at the end of a horrific ride through Williamsburg last week.

The 26-year-old victim told police that she had spent the early part of the night celebrating Cinco de Mayo at Public Assembly on N. Sixth Street. At some point after midnight, she hailed a cab — but instead of getting a ride home, she was taken to a darkened corner of Rodney Street near S. First Street, where the cabbie allegedly pulled a knife, bound her wrists together and raped her.

He then took her cellphone and $20 before letting her go at 6 am."
So she hailed a cab "after midnight" took a five-minute ride and was "let go" at 6 AM.

Here is another particularly imaginative account:

It was a long night, with lots of drinks. You stumble into a cab, as the sunlight is just beginning to show in the distance. You’re drunk, tired and just want to get a few hours of sleep before you have to wake up for work, and you expect a hangover is inevitable.

In the back seat of the taxi, you lean back and close your eyes. You’ll wake up when you get to your apartment in a few minutes. You’ll pay the cabbie and go home. You made it home.

For many New Yorkers, this scenario is not unfamiliar. It could have been you who hailed that cabbie early Friday morning in Brooklyn. It was after 5 a.m., and you had just celebrated Cinco de Mayo at the Public Assembly bar and music venue in Williamsburg.

Are we to believe that this rape occurred over 5-6 hours?

Did she fall asleep and the cabbie waited five hours for her to wake?

But the real wonder is that the press has picked up on this story en masse, all while an untold number of other rapes go unmentioned. It shows a willingness to believe that cabbies are criminals in wait, though there is no evidence to support such hysteria.

The demon cabbie is a persistent myth. It is stoked in particular by the New York Post, which headlined its story, “Woman in cabby-rape nightmare.”

But my bet is that this crime never occurred. And if it did it’s an aberration, which the press fuels as if it were a real fear. The demon cabbie lives!

Taxi of Tomorrow: A Bad Idea Today

2011-05-13T11:23:00.000-07:00

Last week, Mayor Bloomberg announced the winner of his “Taxi of Tomorrow” competition, the Nissan NV200, a four-door van that will become the all-but-exclusive vehicle of the city’s taxi fleet. The NYT Times story is here, but the news was reported everywhere.

A lot of people argue that Bloomberg and his aides made the wrong choice, preferring one of the other two finalists, the Ford Transit Connect or the Karsan V1. But the real problem is that Bloomberg made the choice at all. Instead, the taxi buyers should choose, with their choice guided in turn by taxi passengers.

For as long as there have been taxis in New York City, there have been a variety of automobile models serving as cabs. Many New Yorkers remember fondly the Checker cab. But Checker, which stopped production in the early 1980s, never had an exclusive. It ran alongside the Dodge Coronet, the Chevrolet Caprice, the Peugot 505 and later the Ford Crown Victoria. Today, Hondas, Isuzus, Chevrolets, Fords, and Toyotas, among others, all serve as taxis.

As a regulator the city and its Taxi and Limousine Commission have always established specifications for taxicabs and then let the cab owners buy what they preferred. Of course, neither the city nor the TLC owns a single taxi. They are all owned privately by fleets or individuals. All are operated by drivers licensed by the TLC, but not employed by the TLC. The city and the TLC sometime forget that.

Given that taxis are privately owned and operated, it is very odd indeed for Mayor Bloomberg, one of the nations most successful capitalists, to order that every taxi owner buy the make and model car of his government’s choosing. It is as if the Securities and Exchange Commission held a contest to determine the best financial information terminal—and then required that every brokerage firm use the one it liked best. Somehow, I don’t think Bloomberg the businessman would cotton to this idea.

A lot of people who have weighed in think the city should have chosen an American company, Ford. Others rallied behind Karsan, which, while Turkish, said it would build its cabs in Brooklyn.

But the problem is not that the city chose badly, it’s that it should not be choosing. If Karsan makes an acceptable taxi, it should be an option for taxi buyers. The same is true of Ford—or Toyota, or Mercedes or Chevrolet. Cab owners will certainly have the best sense of what car models work best under the stress of being driven 12 or 24 hours a day, and of what design or designs taxi passengers prefer. If they are wrong, they can try another model—but not if the Nissan is the only choice. Of course, with an exclusive right to sell, Nissan will have buyers over a barrel.

The City Charter states that the TLC can regulate “standards for equipment safety and design.” But it says nothing about mandating a particular design. That’s not just the law: It’s also a good idea.

Just recently, the city tried to require (first directly then indirectly) that all taxis achieve a certain minimum miles per gallon. These efforts were held illegal by federal courts because it only the federal government, not municipalities, is allowed to regulate auto mileage. But now the city is turning around and deciding not just mileage, but shape, styling, and every aspect the taxi design—right down to the seat-coatings and the sound of the horn. It’s hard to see how this draconian top-down design command will pass muster.

But even if it’s legal, the “Taxi of Tomorrow” is a bad idea today.

Capturing Bin Laden

2011-05-02T07:12:00.001-07:00

I am glad the U.S. forces killed Osama Bin Laden. I also feel a bit foolish because I have for years thought Bin Laden was already dead. Al Quaeda had every reason to downplay his death-- better to keep his dubious legend alive. The U.S. would have had its own reasons. Turns out he really was alive, though, not to be a deather, where are the photos of the body?

I also have a few questions about the news reports.

1. They say that the U.S. got the nickname of OBL's courier from prisoners at Guantanamo Bay? But how could that be. Have these prisoners been locked up for five-to-ten years? So how would they know who was carrying the messages for OBL, nickname or otherwise.

2. The compound is said to be eight times larger than the other homes in the area. But the satlellite photos show that is not true. http://images.mirror.co.uk/upl/m4/may2011/9/0/osama-bin-laden-compound-in-abbottabad-pic-googlemaps-222924567.jpg It's bigger,but not eight times bigger.

3. The compound is said to be priced at $1 million. Really? I know nothing about Pakistani real estate, but the place looks like a dump. http://msnbcmedia4.msn.com/j/MSNBC/Components/Photo/_new/g-wld-110502-compound1-4a.grid-6x2.jpg. I doubt it would fetch $1 million in a Toledo or Detroit (except for the best suburbs of those cities.

4. All that said, if OBL was really hiding in an oversized house close to Pakistani military installations, how could people not have asked and found out who was living there?

World Cup in the USA

2010-12-01T17:43:00.000-08:00

The group seeking to get the U.S. selected as World Cup hosts in 2018 or 2022 is well-financed and well-connected. It has many official partners, some well-known like Fox Sports, some more obscure, like Latham and Watkins, a law firm. But like most boosters, it is effectively trying to get the nation to host a huge party that the government will wind up paying for.

Here is how the game is played, as summarized by a Freakonomics entry, which summarizes in turn the research of economist Dennis Coates:

As it seems the U.S. is going hellbent for leather trying to land an upcoming World Cup, he wants to get ahead of the cheerleading to make clear how the economics will actually play out. His new paper, “World Cup Economics: What Americans Need to Know about a US World Cup Bid,” is an attempt to challenge “the rosy assumptions being made by U.S. bid leaders, and I hope it will force proponents to be more forthcoming with answers about what we can really expect from a U.S. World Cup.”

Coates’s central claim:

Despite bid organizers’ claims, the World Cup won’t be a boon for the American economy; in fact, it will likely cost the United States billions of dollars in lost economic impact. For example, economic estimates in support of the 1994 U.S. World Cup were later shown by economists to have been off by up to $14 billion. Far from having a positive economic impact, the last World Cup we hosted, a so-called major success, had a negative impact on the average U.S. host city of $712 million. Yet no one is discussing these figures despite the current economic troubles we face. … Few analysts who aren’t in the employ of the event boosters have ever found such events to pay for themselves in a purely dollars and cents view.

The recently completed South Africa World Cup is hardly an exception, with the bulk of the trouble lying in the gap between optimistic projected costs and actual costs:

The proposed budget for the 2010 games was about $225 million for stadiums and $421 million overall. Expenses have far exceeded those numbers. Reported stadium expenses jumped from the planned level of $225 million to $2.13 billion, and overall expenses jumped similarly from $421 million to over $5 billion.

And don’t forget the “ruins of modern Greece” — i.e., the abandoned facilities from the 2004 Summer Olympics in Athens. You think Greece might be feeling a bit of buyer’s remorse about now?

Of course the sponsors benefit. But why does the U.S. allow them to shoulder the rest of us with the costs.

For TLC being 12% Correct is Good Enough

2010-05-14T19:13:00.000-07:00

Seven weeks ago, the TLC announced that more than 35,000 taxi drivers had "scammed" passengers on 1.8 million trips for a total of $8.3 million.

Today, the TLC posted revised numbers: Now it's 21,819 taxicab drivers, 286,000 trips and a total of "almost $1.1 million." Industry observers--such as me--immediately noted that the TLC's original claims were impossible to believe. Sure enough, the TLC itself quickly admitted it was not sure what the numbers were. The buffoonish former TLC Chairman Matthew Daus indeed accused the press of jumping the gun, when all the reporters did was repeat the TLC's press release. It's reminds one of the athlete who claimed to be misquoted in his own autobiography.

Today, the new TLC Chairman David Yassky refused to apologize or even admit error for his massive slur on taxi drivers. It admitted today that, by its new accounting, 13,315 out of the 21,819 drivers, engaged in overcharging just one or two times.

The TLC indicates it will seek license revocation for the worst offenders. I suppose the charges, if proved, merit the sanction. Most likely, the TLC will browbeat many drivers into surrendering their licenses, threatening them with huge fines and criminal prosecutions. But the TLC has said it will seek the penalties in Office of Administrative Trials and Hearings, a citywide tribunal, rather than bringing the charges in its kangaroo TLC Court. Of course, the TLC has been very wrong before. The tribunal and the history should, one hopes, give drivers willing to make a defense a fighting chance.

Taxi Gougers

2010-03-13T04:50:00.000-08:00

Today the NY Times is running a page one story called

"New York Cabs Gouged Riders Out of Millions"

I really doubt this gouging happened on anything like the scale the TLC suggests. If riders were overcharged on "more than 1.8 million trips," certainly there would have been, say, 1800 actual complaints (that is one out of one THOUSAND fares). But the TLC does not report even a single complaint. (Even in the notorious recent Cheema case, there was NO passenger complaint!) And under TLC rules, even a $10 overcharge merits license revocation. Yet there are few if any actual prosecutions.

Maybe the TLC doesn't know how to read the data. That seems more likely as the agency is staffed by mostly incompetents, including and especially outgoing commissioner Daus.

Also: The math doesn't work at all:

"The scam was primarily perpetrated by a small number of drivers, with 3,000 of them overcharging more than 100 times, the agency said."

3000 x 125 [more than 100] = 375,000

Yet in the very next sentence, the article claims: "1.8 million overcharged trips."

There is a 1.4 million trip disparity!

More troubling is the exchange between the Bhairavi Desai of the Taxi Worker's Alliance [full disclosure I have reperesented the TWA on other issues] and Daus:

The taxi industry vigorously challenged the city's findings, saying it was unimaginable that such a pervasive problem could be the result of deliberate fraud. The city said that 35,558 out of the city's roughly 48,000 drivers had applied the higher rate.

This is clearly a systematic failure on the part of the meters and the technology, said Bhairavi Desai, the executive director of the New York Taxi Workers Alliance, which represents cabbies.

For this to be so widespread --nearly every single driver -- makes no sense, she added.
The taxi commission refused to comment on the alliance's claim, citing its continuing investigation. "We have to sort through the numbers," Mr. Daus said.

If the TLC is still "sorting through" the numbers, why go public?

The TLC is just not a trustworthy source, and the story is basically a rewrite of a TLC release issued late on a Friday afternoon. The Times should really check this stuff out first.

Giuliani's Dark Side

2009-12-23T01:24:00.001-08:00

Yesterday's news that Rudoplh Giuliani would not be running for governor takes me back. While Giuliani certainly deserves credit for his record as a prosecutor and as a mayor, he will always be, in addition, a 9/11 profiteer and a gutless bully. I had personal experience with his domineering ways towards NYC taxi driviers, which I wrote about for Slate in
Operation RefusalGiuliani's sorry crackdown on New York City's taxi drivers and saw in his craven deposition testimony, a bit of which can be seen on Youtube at http://www.youtube.com/watch?v=eQ8rnhi1kqU

Is New Jersey the most corrupt state?

2009-07-25T08:24:00.000-07:00

Since the FBI takedown of public officials, the national press and indeed the world press has fallen all over the story. The press reports are typically confused and confusing, with accounts talking about "the case" or even two linked "schemes." The NY Times report is a case in point. Gail Collins' column today takes some cheap, mildly amusing shots, much too easy for a writer of her talents..

In fact, there is no "scheme," no link between the various indicted politicians, and nothing at all linking the pols withe the rabbis. The massive one-day arrest was pure theater by the FBI and the US Attorney, not a law enforcement imperative. It worked-- the case made the papers even in Australia. Politicians from Gov. Corzine on down joined the band wagon, denouncing the accused and the level of political debauchery in general.

This case also presents no real evidence of pervasive corruption in the Garden State. First of all, most of the pols are pretty small time. The biggest fish is Hoboken Mayor Peter Cammarano. But Hoboken is a city of 38,577, really just a small town, given some prominence by its proximity to Manhattan. Would anyone care if the mayor of a town of 38,000 in Iowa or Connecticut was arrested?

The story has legs because it fits the Sopranos-inspired narrative of New Jersey as especially and hopelessly corrupt. Maybe it is, but these cases-- linked only by the "cooperating witness," Solomon Dwek (rhymes with "dreck")-- don't show it. Dwek posed as a crooked real estate developer eager to grease palms to get his projects approved. But the people he bribed for the most part had no individual authority to grant or even speed approvals. They were mostly legislators with indirect influence at most.

Worse, there is nothing in the reports saying he had any projects to approve. Even if the evidence of bribery holds up, all it shows is some would-be developer seeking vague favors for some hypothetical projects. This is hardly a fundamental subversion of government.

Maybe the evidence will show a propensity for corruption on the part of those indicted. But how many officials turned Dwek away? We'd need to know that before registering any conclusion about the level of corruption in New Jersey. I'd be much more impressed if there was an allegation (let alone evidence) of one scheme in which a politician actually did something in exchange for a bribe. Did a real estate project get approved that should not have been approved? Did anyone even put a project on the fast track for approval?

Nothing like that is charged. Until it is, we'll have to wait for evidence that New Jersey is as corrupt as we'd all like to believe.

FBI, Arrests, and Money Laudering

2009-07-23T10:01:00.000-07:00

I am listening to the U.S. Attorney from New Jersey press conference on the political corruption and "money laundering" arrest of 30-plus individuals including the mayor of Hoboken and the Jersey City City Council president. It smells a bit, and not for the reasons intended.

First, there seems to be no real link between the money laundering rabbi and the allegedly corrupt politicians, except that one cooperating witness seems to be involved with all of them. If that is the case, why does the U.S. Attorney and the FBI take them down (as the call it) at the same time. Is it just to generate headlines? If there is any law enforcement rationale, it's hard to follow what it is.

As to money laundering, this is a dubious crime in general. But as I understand it, money laundering generally involves someone who has a lot of cash (often from illegal activities, but not necessarily) exchanging that cash for less suspicious assets, whether real estate, securities, or bank accounts. But in this case, the cooperating witness would bring a check to the rabbis and get cash back. That sound like cashing a check; money laundering in reverse. Why is the FBI worrying about this at all?

Final Four: College Teams vs. All-Star Teams

2009-04-02T13:06:00.000-07:00

The teams facing off in this weekend’s Final Four differ in style. But they differ more in make-up: Michigan State and Villanova are built like college squads; North Carolina and Connecticut look more like all-star teams.

Michigan State and Villanova attained their elite status by mining local and nearby talent. Those schools’ rosters include 22 of 28 players (79%) either from in-state or from neighboring states.
Villanova boasts two players from Pennsylvania and another six from New York, New Jersey and Maryland. Michigan State is even more home grown with nine Michiganders and five from Ohio, Minnesota and Wisconsin. In other words their teams look something like the university’s student bodies, in geography, if not in ability or height.

UConn and North Carolina are built differently. Just 16 of 33 players (48%) on their rosters are from in-state or neighboring states. Connecticut has star players from Alabama and Tanzania (Stanley Robinson and Hasheem Thabeet). Carolina imports its stars from Missouri and New York (Tyler Hansborough and Danny Green). Its roster does have six in-state players, but they are all bench warmers. Connecticut at least has A.J. Price and Jeff Adrien from nearby New York and Massachusetts.

It’s certainly true that the huge success enjoyed by North Carolina and Connecticut in the past has enabled them to recruit far and wide. And its no coincidence that these teams are number one seeds and are favored to make it to the finals. But wouldn’t be nice if being from a place, whether Michigan or Philadelphia, was actually reflected by the players. North Carolina has its state on its jersey, but its players are bussed in from far and wide.

Here are the rosters for the Final Four Teams:

NO NAME POS WT CLASS HOMETOWN
2 Donnell Beverly G 190 Sophomore Hawthorne, CA distant state
10 Johnnie Bird G 165 Senior Fort Bragg, NC distant state
11 Jerome Dyson G 190 Junior Potomac, MD distant state
21 Stanley Robinson F 210 Junior Birmingham, AL distant state
30 Scottie Haralson G 215 Freshman Jackson, MS distant state
32 Jonathan Mandeldove C 240 Junior Stone Mountain, GA distant state
33 Gavin Edwards F 234 Junior Gilbert, AZ distant state
34 Hasheem Thabeet C 263 Junior Dar Es Salaam, distant state
55 Kyle Bailey G 170 Sophomore Lancaster, NH distant state
13 Alex Hornat F 205 Junior South Windsor, CT in-state
24 Craig Austrie G 176 Senior Stamford, CT in-state
40 Jim Veronick F 200 Senior Durham, CT in-state
44 John Lindner F 265 Senior Cheshire, CT in-state
4 Jeff Adrien F 243 Senior Brookline, MA neighboring state
12 A.J. Price G 181 Senior Amityville, NY neighboring state
15 Kemba Walker G 172 Freshman Bronx, NY neighboring state

MICHIGAN STATE

0 Idong Ibok C 260 Senior Lagos, Nigeria Distant state
3 Chris Allen G 205 Sophomore Lawrenceville, GA distant state
1 Kalin Lucas G 180 Sophomore Sterling Heights, MI in-state
13 Austin Thornton G 210 Freshman Sand Lake, MI in-state
14 Goran Suton C 245 Senior Lansing, MI in-state
15 Durrell Summers G 195 Sophomore Detroit, MI in-state
20 Mike Kebler G 200 Sophomore Okemos, MI in-state
23 Draymond Green F 235 Freshman Saginaw, MI in-state
25 Jon Crandell F 225 Junior Rochester, MI in-state
40 Tom Herzog C 240 Sophomore Flint, MI in-state
41 Marquise Gray F 235 Senior Flint, MI in-state
2 Raymar Morgan F 225 Junior Canton, OH neighboring state
5 Travis Walton G 190 Senior Lima, OH neighboring state
10 Delvon Roe F 225 Freshman Euclid, OH neighboring state
22 Isaiah Dahlman G 200 Junior Braham, MN neighboring state
34 Korie Lucious G 170 Freshman Milwaukee, WI neighboring state

NORTH CAROLINA
4 Bobby Frasor G 210 Senior Blue Island, IL distant state
5 Ty Lawson G 195 Junior Clinton, MD distant state
11 Larry Drew II G 180 Freshman Encino, CA distant state
14 Danny Green G-F 210 Senior North Babylon, NY distant state
21 Deon Thompson F 245 Junior Torrance, CA distant state
22 Wayne Ellington G 200 Junior Wynnewood, PA distant state
44 Tyler Zeller F 220 Freshman Washington, IN distant state
50 Tyler Hansbrough F 250 Senior Poplar Bluff, MO distant state
2 Marc Campbell G 175 Junior Wilmington, NC in-state
13 Will Graves G-F 245 Sophomore Greensboro, NC in-state
15 J.B. Tanner G 185 Senior Hendersonville, NC in-state
24 Justin Watts G 205 Freshman Durham, NC in-state
30 Jack Wooten G 190 Senior Burlington, NC in-state
40 Mike Copeland F 235 Senior Winston-Salem, NC in-state
1 Marcus Ginyard G-F 220 Senior Alexandria, VA neighboring state
32 Ed Davis F 215 Freshman Richmond, VA neighboring state
35 Patrick Moody F 195 Senior Asheville, NC neighboring state

VILLANOVA
1 Scottie Reynolds G 195 Junior Herndon, VA distant state
4 Jason Colenda G 205 Junior Fairfax, VA distant state
23 Russell Wooten F 210 Junior Chula Vista, CA distant state
42 Frank Tchuisi F 215 Senior Douala, Cameroon distant state
15 Reggie Redding G 205 Junior Philadelphia, PA in-state
20 Shane Clark F 205 Senior Philadelphia, PA in-state
0 Antonio Pena F 235 Sophomore Brooklyn, NY neighboring state
10 Corey Fisher G 185 Sophomore Bronx, NY neighboring state
21 Maurice Sutton F-C 215 Freshman Upper Marlboro, MD neighboring state
22 Dwayne Anderson G-F 215 Senior Silver Spring, MD neighboring state
24 Corey Stokes G 195 Sophomore Bayonne, NJ neighboring state
33 Dante Cunningham F 230 Senior Silver Spring, MD neighboring state

Barack Obama and the College Football Playoffs

2008-11-16T17:31:00.000-08:00

Barack Obama said on "60 Minutes" that he knows of no serious fan of college football who is against a playoff system. Well, I suppose we've never met, but a playoff would ruin college football and would not even add fairness.

The way the system works now, the only way a team can assure itself a shot at the national championship is to win all its games. Lose one, a team may still have a chance. Lose two: no chance. This system means that every game is critical, including the games early in the year. In the NFL, by contrast, a team can lose its first game and its second, and few more, and still make the playoffs and win the Super Bowl. In other words, every team has four or five games it can easily afford to lose.

In the college game as it stands, every week is do or die. It's as if the entire season were the playoffs. Sure a team one-loss teams like USC or Florida can argue it is better now than undefeated Texas Tech or Alabama. But if USC is so good, it should not have lost to Oregon State this year or Stanford last year. But when every team knows it has to win every week, then the entire season is like a playoff. And that's what makes every game exciting-- unlike the pros.

Also, why is it more important-- and more a sign of quality-- to win the last week of the season as compared to the first. An inferior team can get lucky or have a good day and win the playoffs, especially when it's a one game playoff. A team that wins every week (or every week but one) is not just lucky, it's good and it has earned its championship.

Is Africa a continent or a country? Discuss

2008-11-08T05:22:00.000-08:00

Here is Sarah Palin defending herself in today's Times:

'I remember having a discussion with a couple of debate preppers,' she said. 'So if it came from one of those debate preppers, you know, that’s curious. But having a discussion about Nafta — not, "Oh my goodness, I don’t know who is a part of Nafta."'
'So, no, I think that if there are allegations based on questions or comments that I made in debate prep about Nafta, and about the continent versus the country when we talk about Africa there, then those were taken out of context,' Ms. Palin said. 'And that’s cruel and it’s mean-spirited, it’s immature, it’s unprofessional, and those guys are jerks, if they came away with it taking things out of context and then tried to spread something on national news. It is not fair and not right.'

If our culture, even our political culture, were not so celebrity obsessed, no one would even be discussing whether Palin might be able to "rehabilitate herself" or whether seh might someday be ready for national office. Any adult who needs a debate prepper to discuss "the continent versus the country when we talk about Africa there" would otherwise be ruled out.

Whether or not she asked for the clothes or kept the clothes, whether or not she was a diva, Palin's idea that she, despite her ignorance, might be somehow qualified for high office bepeaks a sense of entitlement that's off the charts.

Fortunately, Palin seems to be cementing her status as a national joke. Her real goal, not actually denied, seems to be a talk show gig. But she may even be too dumb for that.

The Real Media Bias: Closer than You Think

2008-10-16T04:29:00.000-07:00

Anyone who's ever watched a football game on television (or any othe sport) should be familiar with announcers who keep pointing out the path by which the losing team can come back. The Cowboys may be down 15 points with five minutes left but stay tuned because they only need two scores plus a two-point conversion to tie. Not only is a comeback a good story, it keeps the eyeballs on the ads.

So it goes with debate and campaign coverage. As I watched the debate last night, I though Obama clearly won. And he's way ahead in the race. But everyone on CNN was saying that it was McCain's best night, that he was the aggressor, yada, yada, yada, even if it may not have been a game changer-- at least until the polls showed that American saw Obama winniing big. When David Gergen said that McCain is really out of options, the other folks on st laughed because Gergen is really not supposed to say that.

The media's real bias is not left or right, it's to hype the story. Nothing in the news is as important as it seems to be when you are watching it. (Also true of life, by the way.) Thus all campaign coverage must be viewed with the knowledge that the TV networks want -- need -- viewers to think this is stlll anyone's game.

Associations and Double Standards

2008-10-10T09:11:00.000-07:00

Unlike the ralliers and screechers on talk radio, Washington Post columnist Charles Krauthammer, makes a serious case that Barack Obama's associations with "unrepentant terrorist" Bill Ayers (as well as convicted felon and the race-baiting Rev. Jeremiah Wright) is a serious issue. The idea is that we choose our friend and the choice speaks to character.

But what the attacks on Obama's association with Ayers (who I believe is repentant as to his methods, but not his goals) omit is the context of their association. Had Obama known and supported Ayers at the time he was planting bombs, of course, that would say something about Obama. But that's not what happened. The two were associated in the educational work of the Annenberg Foundation, work that was not only legal, but laudable. Many others in the Chicago establishment were involved in that work as well. Are they all now tarred by what Ayers had done a generation earlier?

Of course not: the very idea implies that we are all responsible for vetting the life records of everyone we work with and that, even if we know our colleagues' past, there is no such thing as rehabilitation or second chances. To say that is un-American.

There is also a huge double standard at work.

John McCain associated with convicted felon Charles Keating. Not only that, he did so when Keating was committing his crimes, and even carried water for him. But no one says that this old association disqualifies McCain.

McCain is also associated with his wife, whose father Jim Hensley was a convicted felon. Hensley's crime happened many years before McCain met Cindy, but by the Ayer's analogy, McCain should still bear some guilt.

Also: If Michelle Obama's father had gone to jail, that would be a huge issue.

Sarah teen-aged Palin's daughter got pregnant. If Obama's daughter had done the same, people would wonder a lot more about Obama. (Though I suppose in Palin's case, there are so many bigger problems to marvel at.)

Finally, McCain led the charge to make peace with Vietnam, a nation that killed thousands of Americans (and nearly McCain). But we take McCain's work to be to his credit. By the Ayers analogy, McCain would be an associate of unrepentant murderous communists, and not just one, but thousands.

The Idiot from Wasilla is Graded on a Curve

2008-10-03T06:10:00.000-07:00

The punditocracy has declared (here, here and here) that Sarah Palin “passed” her big test in her debate with Joe Biden. By that they mean she didn’t sound like a blithering idiot the way she did talking to Katie Couric. True, she was not that bad.

But when the school dumbs the test down enough, anyone can pass, but there’s a catch. People know the standards are low so at the end of the day they don’t give much credit for meeting them. Besides, there were a few moron moments, such as when Gov. Palin was discussing the Constitution as it applies to the vice presidency, the office she seeks:

MODERATOR GWEN IFILL: Governor, you mentioned a moment ago the constitution might give the vice president more power than it has in the past. Do you believe as Vice President Cheney does, that the Executive Branch does not hold complete sway over the office of the vice presidency, that it it is also a member of the Legislative Branch?

PALIN: Well, our founding fathers were very wise there in allowing through the Constitution much flexibility there in the office of the vice president. And we will do what is best for the American people in tapping into that position and ushering in an agenda that is supportive and cooperative with the president's agenda in that position. Yeah, so I do agree with him that we have a lot of flexibility in there, and we'll do what we have to do to administer very appropriately the plans that are needed for this nation. And it is my executive experience that is partly to be attributed to my pick as V.P. with McCain, not only as a governor, but earlier on as a mayor, as an oil and gas regulator, as a business owner. It is those years of experience on an executive level that will be put to good use in the White House also. [See full transcript.]

Those founding fathers—God bless ‘em.

It’s the soft bigotry of low expectations applied to candidates for national office.

The Latest Lawsuit Against the TLC

2008-09-09T19:26:00.000-07:00

Another lawsuit against the TLC was filed today, this one challenging the TLC's hybrid cab rules, a program pushed by Mayor Bloomberg. The case is being prosecuted mainly by taxi fleet owners, not taxi drivers, who I have represented. The fleets say that the hybrid cars have nit been tested against the rigors of 24-hour driving on NYC streets. Legally, the major claims are that the TLC's rules regarding minimum mileage standards for taxi cabs are preempted by federal laws that mandate that only the federal givernment may regulate gas mileage standards. The lawyers on the case are from Emery Celli, a prominent civil rights firm that has some recent successes in strip search class action cases.

Given that NYC taxis drive almost exclusively in dense urban traffic, where a hybrid's advantage in mileage is most pronounced, why are the taxi fleets so adamantly against Mayor Bloomberg's plan? The answer is taxi economics.

While the taxi fleets (and other non-driving taxi owners) purchase and maintain cars, the taxi drivers pay for gas. So the fleets bear the costs of maintaining more expensive vehicles, which may be more costly to maintain, but the drivers get the benefit of better mileage. And the fleets have never much cared about drivers.

In stark contrast to the draconian programs that affect drivers, which have been enacted without any legitimate process, it is clear even from the complaint in the fleet's action that the TLC, in promulgating the mileage regulaitons, allowed for public hearings, notice and comment.

Two reasons why Giuliani hates community organizers

2008-09-08T09:42:00.000-07:00

Former presidential candidate Rudy Giuliani got a big laugh when he mocked community organizers. But it's not a trivial point. Republicans dislike community organizers because they reject the idea of collective solutions. If you need a park, get a backyard. if you need a job, get it yourself, or, more accurately, from your family and social connections.

Giuliani's distaste for community organizers is less political and more visceral. Community organizers try to help people without power, and themselves have little power. Giuliani's style is to mock the powerless and his belief is that he knows what's best so input from unelected types (or even lesser elected officials is entirely unwelcome.

McCain and the Base

2008-09-04T19:02:00.000-07:00

It seems to me that Sarah Palin is more popular with the delegates (and perhaps the hard core base) than is John McCain. The fact is McCain is minority candidate in the party. If there had been a single right wing stalwart (like George Bush) instead of the four headed doofus of Romney, Huckabee, Thompson and Giuliani, he would have lost. So now he is not even particularly popular with his party. So he needs Palin and the Christian right, who he used to attack.

The Company He Keeps

2008-09-03T19:28:00.000-07:00

Listening to the Republicans laud Senator McCain and especially his heroic biography, it's pretty convincing. The problem is that as McCain has neared the nomination, the quality of his company has deteriorated. Now he sucks up the the Christian right, to the creep Giuliani, and to the anti-science Sarah Palin. And the people in the hall ...

Palin is "electrifying" the crowd by saying that you can trust McCain never to waiver, but by picking Palin, he has done just that, turned back on his principles and beliefs.

The Third Best Palin

2008-08-29T18:36:00.000-07:00

I know as much about these others as I know about Sarah Palin, which is to say next to nothing. But if John McCain was looking for a woman governor to run with, there are two others who seem superior to Palin. Jodi Rell of Connecticut has been governor for four years and was lieutenant governor before that. She is even married to a former navy pilot. She's popular and has been re-elected. Problem is: she's considered a liberal Republican.

Or McCain could have gone to the other extra-continental state, Hawaii, and picked Linda Lingle. Lingle was elected in a very Democratic state, unlike Alaska. Lingle served as Maui County mayor, councilmember, and chaired the Hawaii GOP. As of November 20, 2006, her approval rating stood at 71% with only 24% disapproval, according to Answers.com. But Lingle is jewish. So picking either Lingle or Rell would, in a way, have been a slap at McCain BFFL Joe Lieberman.

How do you say Quayle in Alaskan: Palin

2008-08-29T10:26:00.000-07:00

It's wrong to say that McCain picking Palin is like Bush I picking Quayle. Palin is more like someone Quayle would pick.

I expect that there will be some sort of scandal or gaffe will force Palin off the ticket before long.

At least everyone will have a compelling interest in keeping McCain, 72, healthy and alive.

Historically nuts.

80,000

2008-08-28T18:24:00.000-07:00

It's fantastic that Obama can get 80,000 folks to a political rally. It's obvious that he has a huge lead in enthusiasm. And maybe McCain can't get 10,000 or ven 5,000 to his events. But here's the thing: an unenthusiastic, even apathetic vote counts just as much as a heartfelt one. Maybe it shouldn't. But it does.

We are Family -- or Maybe Not

2008-08-27T20:03:00.000-07:00

Why did the Democratic Convention change the lyrics of "We Are Family"?

The lyric written by Sister Sledge goes:

We are family
I got all my sisters with me
We are family
Get up ev'rybody and sing

The convention changed it to:

We are family
I got everybody with me...

Is "sisters" too black?

Hillary Clinton for Secretary of State

2008-08-26T05:38:00.000-07:00

Since Barack Obama selected Joe Biden (and before that too) the party faithful and the pundits have mused mightily about why he did not select Hillary Clinton instead. After all, she is the only one out there with a large base of voters. To me the answers are obvious: (1) After the strain of the primaries, Obama just did not like Hillary; (2) choosing Clinton would show weakness, not strength in that Obama would seem to need Clinton and would be overshadowed by both Hillary and Bill Clinton; (3) the Republicans would be able to run ad after ad of the VP candidate attacking Obama. They already did this truck with Biden, but with Clinton it would be much, much worse.

Because Hillary Clinton does have support and because she is very smart and knowledgeable, Obama should give her something else: Secretary of State. If Obama announced this appointment at the convention, it would mollify and energize Clinton's supporters. And, more important, Clinton would be a great representative of the U.S. to the world. It would be a great appointment.

The Real Olympic Medal Count

2008-08-25T07:53:00.000-07:00

The Olympic medal count is unofficial, not something officially recognized by the International Olympic Committee. Still, the count is universally reported and widely known. (Even the IOC puts the count for each games on its web site, but says: "The International Olympic Committee (IOC) does not recognise global ranking per country; the medal tables are displayed for information only.") Officially, medals are awarded to individuals, though these individuls do represent national teams.

During the Cold War, Americans fretted they were losing ground to the Soviet Union, which won the medal race between 1972 and 1992, after which the USSR team broke up into teams representing Russia and the various former republics. (The USSR itself disbanded before 1992, but in the 1992 Barcelona games, there was a "Unified Team" of the ex-Soviet Union.)

Unofficial though it may be, the medal count is of great interest to Americans and other nations. This year, the U.S. won the count with 110 medals, though China scored by far the most golds. If the counting is to be done, there should be some division along with the arithmetic. Huge nations like China and the U.S. will naturally best smaller countries like Cuba or Australia. But if one divides the totals by population, a far different standing emerges. Here is a medal count that includes the 37 nations that won at least six medals, divided by population. (It's hard to read in blogspot, but the last column is the he number of medals won per million people in each nation listed.)

Rank Country GOLD SILVER BRONZE TOTAL POP. (millions) Medals per Million
1 Jamaica 6 3 2 11 3 3.667
2 New Zealand 3 1 5 9 4 2.250
3 Australia 14 15 17 46 21 2.190
4 Cuba 2 11 11 24 11 2.182
5 Armenia 0 0 6 6 3 2.000
6 Norway 3 5 2 10 5 2.000
7 Belarus 4 5 10 19 10 1.900
8 Georgia 3 0 3 6 4 1.500
9 Netherlands 7 5 4 16 11 1.455
10 Denmark 2 2 3 7 5 1.400
11 Slovakia 3 2 1 6 5 1.200
12 Hungary 3 5 2 10 10 1.000
13 Azerbaijan 1 2 4 7 8 0.875
14 Kazakhstan 2 4 7 13 15 0.867
15 Britain 19 13 15 47 61 0.770
16 Switzerland 2 0 4 6 8 0.750
17 South Korea 13 10 8 31 48 0.646
18 France 7 16 17 40 64 0.625
19 Czech Republic 3 3 0 6 10 0.600
20 Ukraine 7 5 15 27 46 0.587
21 Russia 23 21 28 72 142 0.507
22 Germany 16 10 15 41 82 0.500
23 Italy 8 10 10 28 60 0.467
24 Spain 5 10 3 18 46 0.391
25 Romania 4 1 3 8 21 0.381
26 Kenya 5 5 4 14 38 0.368
27 United States 36 38 36 110 305 0.361
28 Poland 3 6 1 10 38 0.263
29 North Korea 2 1 3 6 24 0.250
30 Uzbekistan 1 2 3 6 27 0.222
31 Japan 9 6 10 25 128 0.195
32 Argentina 2 0 4 6 40 0.150
33 Canada 3 9 6 18 128 0.141
34 Turkey 1 4 3 8 71 0.113
35 Ethiopia 4 1 2 7 79 0.089
36 Brazil 3 4 8 15 186 0.081
37 China 51 21 28 100 1326 0.075

Jamaica, with just three million people and 11 medals, not surprisingly wins this medal count thanks to the strength of Usain Bolt and its amazing sprinters. Small but sports mad New Zealand, Australia and Cuba come in second third and fourth.

Among the big nations, Russia does best with just over a half medal per million in population, followed by the U.S. China comes in last.

Of course there are many ways to sort the results, and none of them are fair. No matter how many people there may be in the U.S., it can still field just one basketball team and one team in each of the relays. China can only field one gymnastics team and one ping pong squad, though if China or the U.S. could field more athletes, it would win even more prizes. But it still seems to me that there has to be some accounting for population or other metrics. That's when the true sports powers emerge.

USA Olympic Hoops: Clueless in the half-court

2008-08-22T08:12:00.000-07:00

Watching the first half or USA v. Argentina, it is startling to see how clueless the U.S. team is in any half-court offense situation. Whenever they are five-on-five, the U.S. players stand around and maybe pass the ball on the perimeter. They don't cut to the basket; the don't move without the ball; they don't post up. Unless someone throws up a three-point shot, the USA seems at least as likely to turn the ball over as to score (or even get a shot off).

By slowing the game down, Argentina was able to cut a 20-point deficit to six. Of course, these failures are endemic to NBA basketball. If it weren't for their huge advantages in steals and rebounding (especially offensive rebounding) the team would be in trouble.

Olympic Magic Marker

2008-08-21T18:17:00.000-07:00

Am I crazy or were the letters 'USA' on the U.S. relay team bibs written in magic marker? That's how it looked. The other teams had printed letters on their bibs. Is this symbolic of lack of training for the race?

Olympics: a history of dropping the baton

2008-08-21T06:21:00.000-07:00

It's basically ridiculous to link national fortunes to Olympic success, but the fact that both the U.S. sprinters, both the the men and the women, dropped the baton in the first round of the 4 x 100 meter relay gives me the chills.

It's hardly the first time.

The U.S. men dropped the baton in the 2005 World Championships.

Some history from Sports Illustrated:

At the 1995 Worlds in Gothenburg, Sweden, John Drummond and the very
inexperienced Tony McCall botched the second handoff in the first round and
the U.S. team did not advance. At the 1997 Worlds, the very inexperienced
Brian Lewis and Tim Montgomery botched the first handoff and the U.S. team
did not
advance. (We won't even mention a similar problem at the 1988
Olympics in Seoul,
because that was a very long time ago).

S.I. attributes the pattern to inexperienced runners. But no one who make an Olympic team is inexperienced. They have all run in college and in high school and before that and after that internationally. It's unsettling. Perhaps because dropping the baton is a metaphor for a big mistake in life. And despite Jamaica and Usain Bolt, the U.S. is so deep in sprinting (as in basketball) that its should never lose a relay, but it often does by making mistakes that high school kids should not make. Maybe other countries have the same problem and we just don't notice. I don't know. But we notice when we do it and it take us back.

Olympics: Phelps Double Counting and Phony Medals

2008-08-20T20:18:00.000-07:00

No one can say that Michael Phelps is not a great swimmer. But best Olympian ever? The fact is Phelps basically does two events, but gets eight medals out of it. He sets world records while winning, but so does nearly every other gold-medal swimmer. It's a function of technology: the new swimsuits and the faster pool:

Here are Phelps's races-- basically the 100 and 200 meter freestyle or butterfly four times over:

1. 100-meter butterfly: Phelps swims 100 meters using the butterfly stroke (a stupid stroke, which no one would swim if the goal was to get across water)

2. 400 freestyle relay: Phelps swims 100 meters freestyle

3. 400 individual medley: Phelps swims 100 meters butterfly and 100 meters breastsroke; with two other strokes

4. 200 butterfly: same as 1 and 3, only longer

5. 200 freestyle: same as 2, only longer

6. 200 individual medley: butterfly and freestyle, with backstroke and breaststroke tacked on

7. 800 freestyle relay: same as 4

8. 400 medley relay: Phelps swims 100 meters butterfly, same as 1

Three of the medals are in relays, so he is down to five. (Spitz won relays, too, as did Carl Lewis, but only one.) Really Phelps deserve three medals: the 100 meter butterfly, 200 meter butterfly and 200 meter freestyle. He is not the best at anything else. As for the medleys, no other sport has them. Indeed no other sport has strokes. (Who invented the butterfly?) It's as if Usain Bolt was entered in the 100 meters-while-waiving plus the straight 100 meters.

This double counting is especially annoying given the presence of the dolphin kinc, which is used in every race regardless of stroke. On the initial dive and with every turn, the swimmers abandon the assigned stroke and scurry under the water. As the announcers made clear, Phelps gets a tremendous advantage from the dolphin kick. Maybe they should add that stroke.

USA Olympic Basketball: Great but not Good

2008-08-20T08:40:00.001-07:00

USA basketball seems to be back on track, winning games by 30 or more. The difference is the players seem to have remembered how to shoot. When I last looked at the numbers for the Wall Street Journal in 2003, NBA teams were shooting on average 44% from the field, an all-time low. Last year, they averaged 46%. While the U.S. team actually shot poorly early in the 2008 Olypic tournament, against Australia the team shot 57% from the field and 41% from three-point range en route to a 116-85 blowout.

Compare these numbers to the 2002 World Basketball Championship, in which NBA pros placed a shocking sixth. Americans dominated statistically in nearly every category. They finished at or near the top in rebounds, assists, steals, blocked shots, even scoring. The one exception: shooting. There the U.S. tied for fifth. Medalists Yugoslavia, Argentina, and Germany all shot better. Now the U.S. is shooting well, too, except from the free-throw line, where they still stink.

Of course, the improve shooting percentage is aided by the number of dunks generated by steals and offensive rebounds, in which the much quicker and stronger NBA players excel. If you watch the Redeem Team try to generate a good shot from a set half-court offense, they still flounder, not knowing how to move the ball or hit the open man nearly as well as the top European squads. (I wonder how a team of white Americans would fare? Team USA is all African-American.) Good thing for them, they don't have to rely on half-court fundamentals to win.

Olympics: the Great Saytiev

2008-08-20T08:01:00.000-07:00

Michael Phelps has been hailed as the greatest Olympian on the strength of his eight gold medals. Phelps is great, no doubt about it, and I guess he is the greatest swimmer. But basing conclusions on medal counts is ridiculous. Swimmers by nature can get multiple medals. There are four races at some of the same distances using different strokes. The same guy can get three four medals by doing the same 100 or 200 meter freestyle: two individual races, the freestyle relay and medly relays. The result is multiple medal winners proliferate. Just this year, at least 30 swimmers won more than one medal. Five swimmers won at least four medals.
Compare that to track and field where just two men (Jesse Owens and Carl Lewis) have ever won four medals in the same games. And a wrestler or boxer can win just one. There are no relays, leta alone multiple relays, to boost the medal total. So counting medals by itself is a a ridiculous measure.

If one is searching for greatness, consider Buvaysa Saytiev. Today, Saytiev won his third gold medal in freestyle wrestling. Only the Soviet Union’s Alexander Medved, who won in 1964, 1968 and 1972, has done the same. Medved has the advantage because he won in three different weight classes. But Saytiev, unlike Medved, had to beat fields that include wrestlers from former Soviet republics, which now have their own terrific teams. In the finals, Saytiev beat Soslan Tigiev of Uzbekistan. One bronze-medalist is from Belarus. (The other is from Bulgaria.) There are great wrestlers from Georgia, Armenia and Kazahkstan. It's as if the USA basketball team was broken up and there were individual teams from California, New York and Ohio competing with the U.S. team. In general it's impossible to compare athletes in different sports. But in terms of outdistancing the field, Saytiev stands with Phelps.

Olympics: How they ruined wrestling

2008-08-20T07:44:00.001-07:00

I was a wrestler in high school (of no distinction whatsoever). But I am a student of the sport and have followed it ever since. It seems that the FILA wrestling's chiefs are continually frustrated that the sport is not commercially popular. Wrestlers are fanatics about their sport and they can't fathom why not everyone is. As a result, they keep changing the rules, hoping that the newest wrinkle will add action and improve the ratings. It never works. And the more recent rule changes are ruining the sport.

This year in the Olympics, FILA has instituted a three-period format, where the wrestler who "wins" two period out of three wins the match. I am not sure, but I guess the idea is that a wrestler who falls behind early, that is is the first period, can come back by winning the second. This means that the leader can't sit on a lead, so there will be more attempts to score.

But the result is the opposite. Now a wrestler can score a single point in a period and he has every incnetive to stall for the rest of the round. It also means that a wrestler can win the hout by compiling a 2-0 lead over four minutes-- at that point the third period is eliminated. Wrestling is supposed to be about strength, endurance and toughness. Winning 2-0 in four minutes shows nothing. Four minutes is too short. The trailing wrestler should have a chance to come back.

Also, in recent years, FILA has added off-mat judges who must confirm scoring calls made by the mat official. This ref-by-committee may make scoring more accurate. But it also leads to conferences that break the action, which gives wrestlers the chance to rest, which negates the role of endirance. The real problem with the judging is that back points are so subjective, as a wrestler can gan them by "exposing" the back even if he isn't controlling his opponent. It all results in defensive, reactive wrestling. The rules should reward aggression, control and scoring. Now they do the opposite.

Prosecution by leak

2008-03-11T19:21:00.000-07:00

What’s really disgusting in the Spitzer mess is the use of the press to force a plea bargain where there are no charges. If the stories are true that the feds are negotiating with Spitzer, and they may not charge him if he resigns, that raises the question of why he has not been indicted yet. The organizers of the prostitution ring have been indicted. Spitzer is mentioned, though as Client 9 and not by name. If there was some crime committed by Spitzer (and suggestions about the Mann Act and money laudering sound pretty weak) they should be in an indictment or a criminal information. It could be under seal. But to leak his name and to link him to crimes that are not charged and may not be chargeable strikes me as a clear case of abuse of prosecutorial power. Sure, Spitzer may have done this kind of thing himself (did he? it’s not clear). But even if so, it doesn’t make it right.

Elliot Spitzer is right: This is a private matter

2008-03-10T13:42:00.000-07:00

The criminal complaint charging members of the now-famous Emperor’s Club prostitution ring does not charge Gov. Spitzer with anything. It doesn’t even name him. (See http://graphics8.nytimes.com/packages/pdf/nyregion/20080310spitzer-complaint.pdf) That means that someone leaked confidential grand jury material to the Times. This happens all the time. But the fact remains that the information was supposed to be private. I don’t think Spitzer is even a hypocrite. Did he ever prosecute clients of prostitutes? This is no different from the Lewinsky mess. I hope, like President Clinton, he fights and doesn’t resign.

Embarrassment of Embarassments?

2008-03-04T07:01:00.000-08:00

For most of this primary season, the standard refrain was that the Democrats suffered (if that’s the word) from an embarrassment of riches. They had a half-dozen terrific candidates, it was said, and I don’t deny it. The last two standing, Hillary Clinton and Barack Obama, are not just excellent, but historic, groundbreaking. Either would be a vast improvement over the incumbent.

All true—except the incumbent ain’t running in ’08 and that’s the rub. The embarrassment of riches has real potential to turn into an embarrassment of embarrassments.

In spite of themselves, the Republicans have selected John McCain, their most electable candidate by far. Many Democrats see McCain as essentially in line with his party, and that may be true, too, the talk radio yahoos notwithstanding. But tarring McCain with Bush won’t be easy since McCain has often been a Bush antagonist. His vote on the taxes and his bitter 2000 GOP primary class with the president are just two examples, and two is probably enough.

Meanwhile, Sen. Obama, the likely Democratic nominee, for all his strength, has huge weaknesses, mostly glaring. No matter how much one questions the value experience, the fact that Obama has been in the Senate for just four years. Abraham Lincoln, another gangly lawyer from Illinois, had even less experience in office—this is true. But Lincoln was a national leader of the anti-slavery movement. Obama was never a national leader before winning his Senate seat.

While Obama has run a terrific primary campaign, he has never won a tough general election. People forget it, but Obama won in 2004 only after his opponent Jack Ryan, an investment banker turned schoolteacher, dropped out in late June after a nasty sex scandal involving him and his ex-wife the actress Jeri Ryan. Amazingly, the Illinois Republicans could not find anyone to take Ryan’s place, so they bussed in perennial candidate Alan Keyes, who of course lost badly to Obama.

Obama is even more untested as a public servant. While he had some success in the Illinois legislature, that’s not the stuff of national campaigns. We often hear of his days as a community organizer. But what did he do? He was a civil rights lawyer, but tell us a case he won. He taught law school, but was never a full professor.

But he was right on the Iraq war—give him that. But after months about being defensive on the war issue (and rightly so) Sen. Clinton has herself has put Obama’s anti-war record in perspective: I think you’ll be able to imagine many things Senator McCain will be able to say — he’s never been the president, but he will put forth his lifetime of experience,” Clinton said a few days ago. “I will put forth my lifetime of experience. Senator Obama will put forth a speech he made in 2002.”

Of course, McCain won’t concede Obama was right, as Clinton has. This could wind up hurting McCain, but it could also help him in one of two ways. He could convince the voters that his position—the surge—is correct now, even if the war was a mistake initially. Or he could impress the voters as a man of staunch principle, McCain’s specialty, his ace in the hole, even if it’s not true.

McCain has a proven ability to attract independents. The fact that he is hated by the clownish right only helps in this regard. Then there is the 3 AM question, that Clinton has famously made. It must be said at the outset that the 3AM question is idiotic. The president is not a fireman or a cop or a soldier. The president makes decisions after deliberation—at least 99.9% of the time—not when he is roused from slumber. The one split second call a president may have to make is whether the military should fire on a target, such as if the CIA learned where Osama Bin Laden was hiding. But even then, the decision would have been grounded in intense and extensive prior discussions. The one recent exception is President Bush’s immediate reaction to the 9-11 attacks—and remember how inept it was.

Still, if the voters (or some voters) take the question seriously, McCain wins the point over a junior senator who no one ever heard of until four years ago.

To be sure, Obama has huge strengths; McCain has obvious weaknesses (his age, his part affiliation, his advocacy of even more war). It may not happen, but the prospect for a Democratic collapse in November is very real.

Last chance to bribe McCain

2008-01-30T04:46:00.000-08:00

McCain-Feingold who?

"But this victory ought to allow John McCain to raise a lot of money in a hurry from people who see the train leaving the station and want to get on board," GOP consultant Whit Ayres said, just after the Florida primary.

Bloomberg for Vice

2008-01-03T05:36:00.000-08:00

While most everyone likes Mike, the idea of a billionaire buying his way into office-- or even contention-- is unsettling in a democracy. Since Mayor Bloomberg has at least held public office, his self-financed candidacy would not be as wacky as Ross Perot's, to say nothing of the absurdist contentions of Steve "the inheritor" Forbes.

But still. It would be better if Bloomberg could help someone else gain the presidency. It would be less vain, and would acknowledge that Bloomberg, despite his mayoralty, has relatively little experience in public life. Campaign finance laws make it hard for billionaires to finance others, but there is a way.

Bloomberg should run for vice president and draft Al Gore for the top of the ticket. Mike and Al are sympatico on the issues-- Bloomberg empahasizes global warming. He could free Gore from the drudgery of fundraising and the need to compete in primaries. Meanwhile Bloomberg would not seem like an egomaniac. Since he would be on the ticket, he could pay for the whole thing. And after servinge as vice president, Bloomberg would be a credible candidate--indded the front-runner-- for the presidency following Gore. Moreover, a Gore-Bloomberg ticket could actually win.

I can know longer trust Romney to be a fraud

2007-12-07T12:16:00.000-08:00

Though I tend to prefer the Democrats, I used to think that Mitt Romney might make an acceptable choice for president because I was convinced he was a hypocrite. But now Mr. Romney has taken his hypocrisy one step too far.

Romney ‘s main claim to high office is that he is a successful businessman, a pragmatist, a problem solver. He seems to wear his ideology lightly. In Massachusetts he was pro-choice. Now he considers that position a “mistake.” As to how he made this mistake and what caused him to correct it he has no explanation. Obviously, he beliefs are based on expedience—that is they are not beliefs at all. In all likelihood, he would live and let live on this and other “social issues.” Or so I hoped.

With his speech yesterday on Mormonism, Romney insists that no one should be allowed to be against him because of his (Mormon) faith. On the other hand, Christians should be for him because of his (Christian) faith. I have known a few Mormons, and I could be friends with them without ever mentioning their faith. I doubt they’d want to impose their faith on me, even if they could. But Romney has thrown n his lot with those who would impose religious tests on policies—abortion being just one. I still don’t believe he believes in anything other than gaining the next rung on his resume. But I do think he is pragmatic enough that he would be slow to renounce a deal he has made with the Christian right is such detail.

Romney’s strength was that no one could believe his sincerity—his phoniness was too obvious. But now he is dug in and I con no longer trust him to be as fraudulent as he seemed.

Giuliani and Sarkozy

2007-10-19T02:46:00.000-07:00

Lately Giuliani has been announcing his admiration for Nicholas Sarkozy. He has gone so far as to broadcat his "dream" about Sarkozy coming to America and the leading Democrats going to France. (Oddly, they all nearly die in a fiery mid-air plane crash in the process.)

I thought it was a pretty good line, even with the allusion to near death, until I learned the real reason that Giuliani so admires the French president. Sarkozy is getting divorced while in office. Now if Sarkozy comes here, he can advise Rudy-- and perhaps teach him how to find an attractive new wife.

And he is doing it in record time, the skids of France's divorce court having been nicely greased for the president.

It also brings to mnd a possible slogan for the campaign:

Rudy: Even his kids are voting against him

OR

Rudolph: If his family doesn't like him, why should you

Bush’s Resignation: It’s a Start

2007-09-12T05:07:00.000-07:00

Yesterday’s Iraq hearing told us a lot about what we already know: Iraq is a mess and the “progress” there is uneven at best. But it told us little or nothing about what we don’t know: How do we know when to get out, and, if not now, when?

The questions morally and strategically are: (1) whether our exit would leave the Iraqi’s worse off—and how much extra Iraqi violence and misery would be justified by the decline in death and suffering by U.S. troops? (2) What effect would the departure of U.S. forces have on our “interests” in the Middle East? Both questions are blurred by the desire for “victory” or the fear of “defeat.” It’s not clear now what we stand to win, nor what we might lose.

While these are hard questions, it seems clear that the president has no interest in studying them. Bush is so totally invested in his war—and in his desire not to “lose” it—that he will never change strategy: he will continue with the war, while allowing for the drawdown advocated by Gen. Pretaeus, which, as many have noted, is not a decision but an inevitability. The Democrats, meanwhile, control Congress, but not by enough votes to force the president to change. Thus we have a quagmire—not just in Iraq, but here at home.

Bush, of course, has no credibility on Iraq. To his credit, he has stopped talking about victory, I think, but without acknowledging that his previous course had failed and that his rhetoric was destructive. Still, he now must hide behind the general, who, after all, was selected presumably because he is largely in agreement with the president. (Whether the White House shaped or vetted Petraeus’ testimony is not the point. They chose the man who would give the testimony.) But he does have blocking power.

The only way out is for Bush to resign and leave office now, not waiting until 2009. Cheney, of course, would have to quit, too. The president’s departure would not sole the problem. But it would permit an honest reassessment of what, if anything, we owe the Iraq and what policies are best for us.

Bush: Steadfast, Determined... Oblivious

2007-09-06T03:59:00.000-07:00

Dead Certain, Robert Draper’s new book on George W. Bush, portrays the president as a decisionmaker. (See the NY Times review at http://www.nytimes.com/2007/09/05/books/05kaku.html?ref=books and the first chapter at http://nytimes.com/2007/09/04/books/05draperfirstchap.html ) Bush would have it that he is steadfast, determined, and an optimist. His detractors call him stubborn. Actually, he is neither. He is something worse: Bush is oblivious.

The book also portrays Bush as a man of big ideas. His determination and optimism are, in his mind, necessary to inspire confidence and, therefore, encourage the robust following of his lead. The conclusion may be correct, but the premise is just silly. Bush’s principal “big idea” is to spread democracy in the Middle East. But there is no evidence he ever had that idea until after 9-11 and his decision to invade Iraq. The idea followed the decision. For leaders (or anyone) truly driven by ideas, the cause and effect works the other way: decisions follow ideas.

As for inspiration through confidence and certainty, there must be something to that. No one can follow a waffler or a plan that even the planner appears not to believe. But any decent leader would calculate based on observed facts and events. This is where Bush goes off the rails. Bush’s certainty fooled a lot of the people for a while, but it has now become apparent.

Bush was certain Iraq had WMDs and was in league with Al Qaeda. The people believed him and followed him to war. He was confident that the war could be won on the cheap because the U.S. would be hailed as liberators. The people believed him, or at least did not question.

Then it all blew up. The occupation force was inadequate to secure the country, looting resulted. There was no planning for insurgency or civil war, even though expert advisers predicted both. As Iraq got worse, Bush failed to reckon with events. He was oblivious to the facts as they were and as they newly appeared. As a result he lost credibility precisely because of his certainty. While he is still in charge, he leads no one.

Wrong and Reviled all at once

2007-08-10T09:59:00.000-07:00

The other day the Wall Street Journal ran a book review about a new history of the Marshall Plan. Apparently, of the minority of Americans who were even aware of the Marshall plan at the time, a small majority was opposed to it. In retrospect of course, it was a great idea. The reviewer compared George Marshall then to George W. Bush today. Both are sticking to unpopular policies, convinced they are right. This steadfastness is said to represent courage. We hear a lot of this today from loyal Bushies.

It’s an idiot’s argument. That one unpopular policy turned out to be right does not mean all unpopular policies are right. Nor is there any correlation between unpopularity and correctness. The correlation, I suspect, is the reverse. And in a democracy, unpopularity is a problem in itself, albeit a surmountable one in a democratic republic such as ours.

The courage argument is more insidious. The Iraq war is not something Bush started despite opposition. Just the opposite, at the start, the policy was wildly popular. It was still favored enough in 2004 that Bush was reelected on the strength of his war—and the so-called war on terror more globally. It has relentlessly shed support ever since.

This is the Marshall Plan in reverse and in more ways than one. Marshall’s idea was poorly understood and disliked at the start. But as it succeeded, it gained support, including in retrospect. Bush’s idea has been an utter failure and it has, therefore, lost favor. There’s a word for that, but “courage” ain’t it.

Libby gets nothing and likes it

2007-07-03T04:00:00.000-07:00

Even if you believe that Scooter Libby was wronged (though he was convicted) or that the investigation of the Valerie Plame leak was wrong (though it was ordered by Ashcroft) Bush’s commutation of his prison term is phony. Bush said he “respects’ the jury’s verdict but that Libby’s sentence was “excessive.” Never mind that the sentence was imposed by a Republican judge and could have been appealed. If that’s the case, why not commute Libby’s sentence after he has served half or a quarter of his time or a single month? Wouldn’t that show more respect for the jury and the law, and still show mercy?

As for the large fine, who can doubt that the tab will be picked up by friends of Cheney, or Cheney himself, as a small down payment for favors granted and future favors expected.

A Plan for Barry Bonds

2007-07-02T06:07:00.000-07:00

Barry Bonds is taking a lot of heat, most of it unjustified. Even if he had retired before his then-glorious-now-notorious 73-home run season, he would have been a first-ballot hall-of-famer. Now he is reviled and hated (not only because of steroid allegations, but mostly because of them). Bonds stands on the precipice of hitting his 756th home run, breaking the record of Henry Aaron, who broke the even more celebrated record of Babe Ruth. What if Bonds hit his 754th homer and quit—announced his retirement out of respect of Aaron and in deference to those who accuse him of wrong. Everyone would know he could have done it. And he would be forever remembered for a dignified gesture, erasing a career of boorish acts. It would be an asterisk in reverse.

Bloomberg's Electoral Math

2007-06-21T01:53:00.000-07:00

Mike Bloomberg’s departure from the Republican Party—convenient for a while, but no longer—sets the stage for his presidential bid. Of course, no third party or independent candidate has ever won the presidency. Only Teddy Roosevelt, a former president, has ever come close and that was in 1912.

But Bloomberg has a shot. The first and most obvious reason is that with a personal fortune tagged at anywhere from $5 billion to $20 billion, Bloomberg could outspend either party by writing himself a check for $500 million or $1 billion and not even notice the money was gone. This is how he became mayor—though if it was not for 9/11, Mark Green would have won in 2001. Even in Manhattan, it is possible to live off the interest of just $4 billion.

The real interesting question is what he could do with all that money. Ross Perot, for all his 19% of the popular vote, was not close to winning a single electoral vote. But he spent only $65 million. The key is not to win a large share of the popular vote, but a large enough share to win some electoral votes.

In the last two presidential elections, the winner scored just a thin margin of the electoral votes—Bush had 15 to spare in 2004. If the race between the major party candidates is similarly close in 2008, Bloomberg would need to win just a state or two to deny anyone else a majority in the Electoral College. If no one wins a majority, under the Constitution, the new House of Representative would pick the president.

For Bloomberg to win the House’s support, he’d certainly need a plurality of the popular and electoral vote. His charm, record, and media budget will have to take care of the former. Bloomberg could rack up 181 electoral votes (a plurality of 540) by winning California, New York, Ohio, Pennsylvania, Florida, Michigan, Wisconsin and Washington—that’s a total of 199. These are either liberal states, or big swing states where the parties are neck and neck. It could happen.

Is this the end of Tony?

2007-06-04T10:25:00.000-07:00

With just one episode left, there seems insufficient time for the Sopranos to wrap things up. Tony could get killed. That’s the quickest way and it seems more than possible now that Phil Leotardo has put a contract on his head and that the Lupertazzis have killed Bobby Bacala and (almost) Silvio. But I still think it’s too easy (and not just because the producers want to leave open the chance for a movie sequel).

LKA thinks that Dr. Melfi firing Tony as a patient is a signal to us that we should also lose faith in Tony’s humanity. Maybe. But I disagree for two reasons. First, murderer and adulterer though he may be, Tony has always been the hero of the show and essentially a sympathetic figure. For the show to end by saying that Tony was a bastard all along would, in essence, say the audience has wasted its time and sympathy on a monster. I don’t think that David Chase holds that view now or ever. I also think he would want to undermine the show’s premise in its final weeks.

I also think that Dr. Melfi’s turning against Tony is wrong and hypocritical. It has never been her role to reform Tony or to get him to stop his criminal ways. No, she takes her patient as she finds him, and tries to make him a healthier version of himself. After all, the doctors at the hospital know who Tony is, and no one says they should refuse to operate to save his life after he has been shot (ditto for Christopher and Phil). The studies now being bandied about by Melfi’s fellow psychiatrists all seem to be based on the role of a prison shrink whose role it would be to make the convicts into better citizens. That is just not Melfi’s job, and she would know that. (I did think the bit about him ripping up the magazine was pretty hilarious in this regard.) After all, Johnny Sack was a killer, too, and he was treated for his cancer by a world famous oncologist—and this was after his conviction and imprisonment.

One might compare the beginning of “Analyze This”, where Billy Crystal’s psychologist character tries to refuse treatment to Robert DeNiro’s mob boss. “What am I supposed to do, make you a happy, well adjusted gangster?” he asks. In the end, he comes to like DeNiro, and he helps him. In the same way, Melfi has always liked Tony, with the full knowledge that he had people murdered on a regular basis.

I must concede that there has been no advancement toward my theory that the show will end with AJ being arrested and him giving up Tony (except that AJ is out of the hospital and that Tony roughed him up a bit). But I am still going with it. One terrific way to end: AJ gets arrested. He is facing 20 years in jail—hate crimes, racketeering, assault, attempted murder on Junior. He agrees—or is merely asked—to testify against Tony. But meanwhile, Tony cannot be found. He is up there sitting in the attic, slowly going mad, and the show ends with doubt about whether he will give himself up to help his son, or kill himself, or get killed. (Interestingly, Phil was also in his attic when he refused to see Tony when Tony came to his door—he’s a bit nuts as well.)

One of the great things about the Sopranos is that Chase doesn’t feel the need to put a bow on things. It can be messy, like life, with no neat endings. Every season has ended that way—maybe the whole series will end untidily as well. By the same token, every season has ended with the focus on Tony’s nuclear family. If the show ends with him, Carmela and the kids finally breaking apart—over AJ especially—that is the way it could really wrap up.

Whatever happens, this has been a fantastic season, maybe the best ever. However it ends works for me.

I do not recall

2007-05-25T04:32:00.000-07:00

Everybody is up in arms about poor Alberto Gonzalez. It's partly about how he let politics subvert the Justice Department, partly about how he seems to have lied about what he did, and partly about how he can't seem to remember what happened. Reports note that Alberto testified he could not recall 45 times at one recent congressional session.

In this total recall failure, Alberto has nothing on former Mayor Giuliani and NYC TLC Chairman Matthew Daus. When I deposed Giuliani in Padberg et al v. McGrath-McKechnie et al, Giuliani said testified he could not recall 99 times-- in a three-hour deposition. Click here for a transcript of the deposition.

In a three-hour deposition in Nnebe et al v. Daus et al, Matthew Daus testified he could not recall 85 times, including many times as to events in the last year. Aberto is a piker by comparison.

More on the Padberg case

Chase on Terror

2007-05-24T03:27:00.000-07:00

This season's Sopranos contains an element that has been little discussed but is just terrific: a satire on the war on terror. Every so often, FBI Agent Harris and his partner come around to ask Tony is he has any information about possible terrorists at the ports. Tony, though it's technically ratting, is eager to bank goodwill, so he complies, giving the agents the names of the only two Arabs he knows. At first, he doesn't even know their names-- all he knows is they used to hang around at the Bada Bing--but he gets them from Christopher, now dead.

The agents are all too happy to pursue this non-lead. They later show Tony pictures of the pair and say they are possible suspects for "financing." This could mean anything, of course. Even Tony knows it, repeating "possible" back to the agents. And as the tired agents slink away, they remark that they don't even know if the possible suspects are in the country. So it goes in the war on terror.

Meanwhile, Tony has committed murder, aggravated assault, environmental crimes, conspiracy to hijack. His wife has conspired to bribe a building inspector and his son has committed aggravated assault and a hate crime. Stll these agents, who never managed to arrest Tony, are looking the other way at possible "finance" violations.

AJ again

2007-05-16T17:57:00.000-07:00

My theory that Tony's son AJ will cause his final downfall is gaining traction. Tim Noah writes in Slate:

We've discussed in the past how A.J., one of the few characters on The Sopranos who is not a murderer, is nonetheless the least sympathetic character in the series. He's spoiled, he's stupid, he's narcissistic, he's a whiner, and he's mean. But maybe not as mean as we thought. He seems genuinely horrified when Jason Gervase and his thug pals beat up a black bicyclist who crashes into Jason's car door. (Needless to say, the Italians call the bicyclist something a good deal less civil than black.) The violence and hatred that A.J. is witnessing with this new crowd is escalating, and he can't take it. "Why can't we all just get along?" A.J. tells his shrink, echoing Rodney King. Is series creator David Chase rendering A.J. more sympathetic so that we'll miss him when he gets killed, the outcome you suggest? Perhaps. But I prefer your alternative notion that, instead of dying, A.J. may kill someone. Or, being A.J., that he will witness a murder.

Here's how I see it going. The cops nab A.J., and he immediately confesses to being an accessory. The district attorney prepares to lock the kid up for years. But there is one way A.J. could get his sentence shortened. Tony could confess to two or three of the many murders the cops suspect him of ordering or committing. "Look, Tony, we know your kid isn't a criminal. He isn't the one who should do hard time. You are." Carmela and Tony fight bitterly over this proposed deal. Tony says A.J. can beat this rap. Carmela is horrified that Tony is willing to sacrifice his son to save his own skin. "You are a murderer, Tony, and if you won't tell them, I will!" The words are too much for Tony to bear. He pummels Carmela with his fists, really beats her up, for the first time in his life. (Unlike a certain recently departed HBO chief I could name, Tony has never assaulted a female.) Bruised and bleeding, Carmela calls the cops. They arrive, and Tony realizes he has no home left to defend. He confesses to three murders to save A.J. to whatever extent he can. The price turns out to be not only Tony's confession, but also Tony ratting out the whole gang—Silvio, Paulie, Bobby, Hesh, Janice, maybe even Uncle Junior. The only Soprano left unscathed is Meadow, who heads off to medical school in a daze, leaving Carmela, black and blue, alone in the house. Carmela's cherished delusion of sustainable mob-funded affluence is dashed. She will lose her house, she has already lost her husband and son, and Meadow may never again want to admit she even has a family. Goodbye, Bloomies; hello, Filene's Basement. Fade to black.

I agree, but as far as the cops or the feds will be concerned AJ is no inncocent. He has committed three serious felonies-- the acid-on-foot incident, the attempt on Junior, and, most recently, the hate crime against the Somali cyclist. No accessory, AJ struck at least one blow in each case. He could be liable on some 3 strikes theory.

And I think Tony won't fight it. He'll agree to go away to save AJ. It may even be his idea. Tony has always justified every sin by saying he is providing for or prtecting his family. In this he is the typical suburbanite whoe buys a Hummer or a McMansion on the grounds that "it's good for the kids" when, in fact, it's what the parents want. But Tony's redeeming feature, I think, is he really believe it. Thus Toby will be be the hero AND get away from the life that has long tormented him.

I also don't think he'll take the gang down with him. Snitches rat out higher-ups, not subordinate. He may rat out Phil.

I also don' think AJ is unsympathetic. Just pathetic.

Itty bitty conflicts of interest

2007-05-11T06:14:00.000-07:00

The Times just ran a big story about potential conflicts of interest among psychiatrists who prescribe psycho-pharameceuticals, mainly to children. Psychiatrists, Children and Drug Industry’s Role (5/10/07)

The drug companies make payments to doctors who give lectures or do studies, and then precsribe the drugs.

While some of the payments in the article are substantial, most are quite small, the average being about $2000. The scale raises the questions, can docs be swayed for a few grand. The answer is yes-- even if the docs don't know it.

The Times quotes Dr. Steven E. Hyman, the provost of Harvard University and former director of the National Institute of Mental Health, who says: "There’s an irony that psychiatrists ask patients to have insights into themselves, but we don’t connect the wires in our own lives about how money is affecting our profession and putting our patients at risk.”

I have some experienec in this question in the administrative law area. In the Padberg case, I retained Prof. George Loewenstein of Carnegie Mellon University, perhaps the world's leading expert in conflicts of interest. In a report filed in in the case, he wrote:

When decision makers receive benefits or even small gifts from interested parties, their judgments are subject to an unconscious and unintentional self-serving bias, even when they try to remain objective. When individuals have a stake in reaching a particular conclusion, they weigh arguments in a biased fashion that favors a particular conclusion. As much as they may try, individuals have proven unable to achieve neutrality or objectivity when they have a personal interest in arriving at a specific conclusion. Because bias induced by monetary interests is unconscious and unintentional, there is little hope in controlling it when monetary interests exist.

This case involved the bias not of doctors, but of administrataive law judges. But the principle is the same.

For more on Padberg, see Background Brief, Case File, and my Brief on the Corruption of the Judges.

Is this the end of Tony?

2007-05-09T04:27:00.000-07:00

My prediction for the Sopranos denouement—that A.J.’s crisis will spell Tony’s demise (see 4/23/07 entry) is looking better. In this week’s episode, A.J. becomes involved with some college bookies. On a lark (their’s, not his) they kidnap one of their bettors, beat him and pour acid on his foot. A.J. isn’t just along for the ride; he’s driving the car. The victim has been introduced the “Anthony Soprano Jr.” as if he is a member of the gang. Thus, the feds can nail A.J. on serious federal crimes, including perhaps a RICO count. The sand and beautiful part is that Tony put A.J. up to it, insisting he go to a stripper party—and thinking even after the fact that A.J. doing so was a good idea. After all, it got the depressed and newly medicated scion of the family out of the house. Now when the feds grab A.J. the pressure will be on for him to give up Tony, and Tony can only tell him to do just that. Thus Tony will fall by his own hand. A perfect demise: surprising and inevitable at once.

Bennet Da Bozo

2007-04-30T16:23:00.000-07:00

Now that Paul Wolfowitz has hired Bob Bennett his real troubles may begin. Bennet, you may recall, reperesented Bill Clinton in the Paula Jones case. Not only did he lose the case, a bungled deposition led directy to Clinton's impreachment. One theory may be that Bennett, the brother of the right wing former secretary of education, screwed Clinton up on purpose. At least now Bennett is working for a Reoublican who deserves a worse fate that forced resignation from the World Bank.

Are we really safer with Bush's lap dog?

2007-04-25T18:32:00.000-07:00

Rudy Giuliani, it appears, is claiming that only a Repulican can keep us safe from terror: He said: "If a Democrat is elected president in 2008, America will be at risk for another terrorist attack on the scale of Sept. 11, 2001... Never ever again will this country ever be on defense waiting for (terrorists) to attack us if I have anything to say about it. And make no mistake, the Democrats want to put us back on defense!"

What a fraud.

9/11 happened on Bush's watch. His administration failed to observe the warning signs. He promoted Condi Rice who failed personally. So why should we feel safe with another Republican, especially one like Rudy, who played Bush's lap dog.

We should always recall that the hero Rudy ran away from the Trade Center. The heros that day were running in the opposite direction.

Halberstam

2007-04-24T05:02:00.000-07:00

I ran into the great David Halbsertam once in journalism school and a few times after. In a short lecture, he told us how to write a book. Here is my account http://www.dackman.homestead.com/files/Halberstam.htm (reproduced below):

A Grunt, not a Star, Halberstam Reveals the Secret of His Success

By DAN ACKMAN

Pathfinding war correspondent and celebrated author David Halbertstam told Journalism School students on April 5 [2000] that he remains driven not by awards or glory, but by the "infantry work" of reporting and writing.
Halberstam, author of The PowersThat Be, The Fifties, The Breaks of the Game and 13 other books, attributed his success not to his innate ability, but to his doggedness, his curiosity, and to his willingness to follow his heart. "My success came more from being a grunt than it did from being a star," he told students in James Stewart's Narrative Writing class.
Coming out of college in the mid '50s, Halberstam said he wasn't a top student (though he did go to Harvard, referring to it first as a "school in Boston"), but he knew what he wanted, which was to be a journalist.
As a managing editor of The Crimson, he said he could have gotten a job (as a copy boy) on The New York Times or as a reporter for the Boston Globe. But he sensed that in the wake of Brown vs. The Board of Education, the big story would be about race and civil rights, so he went south. Halberstam took a job on a small newspaper in Mississippi, switching to a larger one in Tennessee about a year later.
This was the beginning of what he called his "12-year apprenticeship" the last six of which were with The Times, mostly as a foreign correspondent. Coming out of college, he says he knew he was good-- "I was quick," he said-- but serving those years in Tennessee made him better. "By the time I got to the Times, I was really ready to go," he said.
The Times sent him to the Congo and later to Vietnam, where he did the reporting which led to The Best and the Brightest, his classic book on the war, and to a fabled career as an author and in long-form magazine writing. He has alternated between books on politics and government and books on sports, most recently one about basketball star Michael Jordan.
His huge success in this field, Halberstam said, is based on his "passion to know." A good book starts with a question, he said. The Best and The Brightest, for instance, started with this one: if the officials in the Kennedy and Johnson administration were so smart and so capable, how did they lead the nation to a war that was such a disaster?
The key, he said, is to pick a question interesting enough to sustain the reporter for two or three years, one which will later sustain the reader as well. It is also critical to find a way to dramatize that question and to "go places where the cameras can't go."
He says he keeps a mental list of people to see, often starting with peripheral figures and circling in to the main subject or subjects. Along the way his knowledge deepens and his questions keep getting sharper. The last question at every interview is a always the same: "Who else should I see?"
Conducting two interviews per day, Halberstam compiles massive quantities of notes, which he later speaks into a tape recorder. He says his one luxury is that he pays someone else to transcribe the notes.
Halberstam said that early in life he probably suffered from a form of Attention Deficit Disorder which steered him away from other fields. He knew his destiny was to be a reporter, so "I knew I couldn't screw up." So far, he seems to have kept the screw-ups to a minimum, and he has been awarded with a two Pulitzer Prizes and roughly 18 honorary degrees. He has sold a fair number of books along the way.
But it's the life that sustains him: "And it has been a terrific life. Each book was a university. That's the best part of it, not the honorary degrees, growing as a person. I've been paid to learn for 45 years.... I find it thrilling."

Sopranos, decline and fall

2007-04-23T18:44:00.000-07:00

So far this season has been terrific. On the other hand there has been no progress toward my predicted ending. The last season has emphasized the demise of the Mafia: Junior's degeneration; the moronic violence of the NYC family; Christopher's mining his experience for showbiz; Tony's paranoia. But there has been almost nothing about Tony's nuclear family. This is odd because at the end of the day, the show has always been about Tony and his wife and kids.

As gangster, Tony is a survivor, mostly based on lock-- the rats who die just before they can testify, even of natural causes, like Ray, to say nothing of the ones they kill, like Pussy or Adriana. But I still think that amidst the decline and chaos, Tony will be felled by the failures of own household, specifically his idiot son AJ, though they have barely figures in the show at all this season-- so far.

My prediction for the Sopranos

2007-04-07T16:48:00.000-07:00

I predict the last season of the Sopranos will turn on Tony's relationship with A.J. Tony's insipid son will get himself in trouble either through his relationship with his new Hispanic girlfriend (who undoubtedly knows who A.J.'s father is and may seek to benefit from the connection) or by trying to trade on the family name to complete some criminal transaction of his own. Because he is weak and incompetent, A.J. will get caught. The feds will try to get A.J. to rat out Tony. A.J. will resist, but ultimately, Tony himself will tell A.J. to take the deal. This Tony will sacrifice himself for his family. This willingness to sacrifice, at the end of the day, is Tony's justification for all the crimes and violence that he has perpetrated. By going to jail for A,J., Tony will finally get out of the mob life that he has long ceased to enjoy. He will also prove to himself and others what he has always said: that he was doing it to provide for and protect his wife and kids all along.

Executive Privilege Primer

2007-03-22T04:21:00.000-07:00

Executive privilege (also known as “deliberative process privilege” protects confidential pre-decisional communications such as recommendations, draft documents, proposals, suggestions, and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency. The privilege is based on the notion that an assurance of confidentiality will promote “candid discussion between officials.” As the Supreme Court has stated, “The point is not to protect Government secrecy pure and simple.” DOI v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 9 (U.S. 2001). The deliberative process privilege shields only those communications designed to assist an agency policy-maker in arriving at a decision and which are actually related to the policy formulation process.

For a particular document or communication to be protected by the privilege, the agency must demonstrate that the document is both “predecisional” and “deliberative.” The document must be predecisional, that is, prepared in order to assist an agency policy-maker in arriving at a decision. Second, the document must be deliberative, that is, actually related to the process by which policies are formulated. The privilege does not cover procedures or implementation strategy or individual cases (including personnel decisions). It covers policy.

To demonstrate that a document is predecisional, an agency must: (i) pinpoint the specific decision to which the document correlates, (ii) establish that its author prepared the document for the purpose of assisting the agency official charged with making the agency decision, and (iii) verify that the document precedes, in temporal sequence, the decision to which it relates.

Documents that are purely factual are not protected by executive privilege. Mere instructions to subordinate officials as to the implementation of policy are not privileged either. Just because a document satisfies these requirements, however, it does not mean that the deliberative process privilege bars its disclosure. An agency may be required to disclose a document otherwise entitled to protection if the agency has chosen expressly to adopt or incorporate by reference a memorandum previously covered by the privilege in a final rule or opinion.
As with the attorney-client privilege, it is the burden of the party raising the deliberative process privilege to demonstrate its applicability. Finally, the deliberative process does not protect third-party documents submitted in connection with an agency decision, unless the third party is acting an agent of the government. The privilege is waived under certain circumstances if the documents have been disclosed to a third party that is not within the agency.

The Justice Department and the TLC

2007-03-13T05:05:00.000-07:00

The emerging Justice Department scandal regarding the politicized firing of U.S. Attorneys is reminiscent of the Taxi & Limousine Commission, both in terms of Operation Refusal and the TLC's summary suspensions.

My class action lawsuit about a Giuliani's Operation Refusal-- suspending the licenses of cab drivers illegally based on phony, politicized charges (together with the attempt to revoke those licenses). This was obviously a big-deal for the cabbies, but a yawn for even the local beat reporters. This was despite the politicization of the agency and the corruption of the judges.

The cabbies had no real defense, and only the class action rules allowed them to sue after the fact. When the city was required to pay $7 million in damages, it got a little ink, but not much.

The lesson is that small injustices are very easy to hide.

Paul Krugman makes this point very well.

My slogan for New Jersey

2006-05-07T19:21:00.000-07:00

My Slogan for New Jersey

New Jersey: Gateway to America

May 7, 2006
New Jersey's Slogan Goes From New to Stale
By THE ASSOCIATED PRESS
The Associated Press
TRENTON, May 6 — New Jersey officials have said the new state slogan, "Come See for Yourself," would highlight the Garden State's true beauty.
It turns out, however, that at least one other state already had that idea.
State tourism officials said they canned the slogan after it failed to pass legal muster because some states, including West Virginia, have used it in the past.
"We are proceeding without the slogan," Karen Wolfe, a spokeswoman for the state's Commerce, Economic Growth and Tourism Commission, was quoted as saying in The Press of Atlantic City's Saturday issue. "We will revisit the next steps at the end of the year."
Former Gov. Richard J. Codey unveiled the slogan with great fanfare at a January news conference, just days before he left office.
Mr. Codey, who remains State Senate president, said at the time that the state's catchphrase "should hint at our true beauty."
The slogan was the top choice among 11,227 telephone and online votes cast by residents for five final entries in a statewide contest.
But at an annual tourism conference in Cape May County more than a week ago, the slogan was absent from state promotional materials.
Tourism officials say West Virginia used the phrase in some previous promotions, but now uses "West Virginia: Wild and Wonderful."
The slogan resulted from Mr. Codey's appeal in October for ideas after he rejected a marketing company's proposal for which the state paid about $250,000. He said that slogan, "New Jersey: We'll Win You Over," was negative and reminded him of his own self-deprecating pitch when he asked girls out on dates.

As I have lived in New Jersey for more than two years now, I feel I have the perfect state slogan: Gateway to America.

It’s catchy and happens to be true, as NJ is the a stronghold of immigrants, both now and historically, and is the state closest to Ellis Island. It is also is the state through which visitors to New York City must pass, more often than not, if they want to reach the American mainland.

Ackman quoted by Krugman...

2006-03-24T06:14:00.000-08:00

... alas not by name...

NEW YORK TIMES
March 24, 2006
Op-Ed Columnist
Letter to the Secretary
By PAUL KRUGMAN
Dear John Snow, secretary of the Treasury:

I'm glad that you've started talking about income inequality, which in recent years has reached levels not seen since before World War II. But if you want to be credible on the subject, you need to make some changes in your approach.

First, you shouldn't claim, as you seemed to earlier this week, that there's anything meaningful about the decline in some measures of inequality between 2000 and 2003. Every economist realizes that, as The Washington Post put it, "much of the decline in inequality during that period reflected the popping of the stock market bubble," which led to a large but temporary fall in the incomes of the richest Americans.

We don't have detailed data for more recent years yet, but the available indicators suggest that after 2003, incomes at the top and the overall level of inequality came roaring back. That surge in inequality explains why, despite your best efforts to talk up the economic numbers, most Americans are unhappy with the Bush economy.

I find it helpful to illustrate what's going on with a hypothetical example: say 10 middle-class guys are sitting in a bar. Then the richest guy leaves, and Bill Gates walks in.

Because the richest guy in the bar is now much richer than before, the average income in the bar soars. But the income of the nine men who aren't Bill Gates hasn't increased, and no amount of repeating "But average income is up!" will convince them that they're better off.

Now think about what happened in 2004 (the figures for 2005 aren't in yet, but it was almost certainly more of the same). The economy grew reasonably fast in 2004, but most families saw little if any improvement in their financial situation.

Instead, a small fraction of the population got much, much richer. For example, Forbes tells us that the compensation of chief executives at the 500 largest corporations rose 54 percent in 2004. In effect, Bill Gates walked into the bar. Average income rose, but only because of rising incomes at the top.

Speaking of executive compensation, Mr. Snow, it hurts your credibility when you say, as you did in a recent interview, that soaring pay for top executives reflects their productivity and that we should "trust the marketplace." Executive pay isn't set in the marketplace; it's set by boards that the executives themselves appoint. And executives' pay often bears little relationship to their performance.

You yourself, as you must know, are often cited as an example. When you were appointed to your present job, Forbes pointed out that the performance of the company you had run, CSX, was "middling at best." Nonetheless, you were "by far the highest-paid chief in the industry."
[SEE: Snow's CSX Was An Also-Ran by Dan Ackman; SEE ALSO Daily Kos

And the business careers of other prominent members of the administration, including the president and vice president, seem to demonstrate the truth of the adage that it's not what you know, it's who you know. So my advice on the question of executive pay is: don't go there.

Finally, you should stop denying that the Bush tax cuts favor the wealthy. I know that administration number-crunchers have produced calculations purporting to show that the tax cuts were tilted toward the middle class. But using the right measure — the effect of the tax cuts on after-tax income — the bias toward the haves and have-mores is unmistakable.

According to the nonpartisan Tax Policy Center, once the Bush tax cuts are fully phased in, they will raise the after-tax income of middle-income families by 2.3 percent. But they will raise the after-tax income of people like yourself, with incomes of more than $1 million, by 7.3 percent.

And those calculations don't take into account the indirect effects of tax cuts. If the tax cuts are made permanent, they'll eventually have to be offset by large spending cuts. In practical terms, that means cuts where the money is: in Social Security and Medicare benefits. Since middle-income Americans will feel the brunt of these cuts, yet received a relatively small tax break, they'll end up worse off. But the wealthy will be left considerably wealthier.

Of course, my suggestions about how to improve your credibility would force you to stop repeating administration talking points. But you're the secretary of the Treasury. Your job is to make economic policy, not to spout propaganda. Oh, wait.

Stung Cabbies Sting Back - Padberg v. McGrath-McKechnie

2006-03-24T06:12:00.000-08:00

On March 6, 2006, on the eve of trial, the City of New York and its Taxi and Limousine Commission announced a settlement of a class action lawsuit brought by 500 cabbies concerning the TLC’s so-called “Operation Refusal.”

The cabbies alleged that the New York City Taxi and Limousine Commission, led by Rudolph Giuliani and its chairwoman Diane McGrath-McKechnie, suspended hack licenses unconstitutionally and revoked them illegally during the course of the TLC’s so-called “Operation Refusal,” the sting operation ordered by the mayor and the chairwoman in the wake of a highly publicized complaint by the actor Danny Glover.

The former mayor and the TLC pretended that cabbies whose licenses were suspended were acting out of “bigotry” or racial bias. Evidence unearthed during discovery proved that this claim was a con. The overwhelming majority of alleged service refusals – then and now – are based on destination and economics, not race. TLC officials, of course, were well aware of this fact.

The cabbies alleged that the revocation of their licenses violated city law, and that the policy was enacted illegally and in secret, without public notice or hearings of any kind. They also allege that McGrath-McKechnie pursued her scheme despite clear warnings that what she was doing is illegal.

The penalties were enforced by TLC judges, in the TLC’s own kangaroo court. That court was systemically biased against drivers, the cabbies allege. The judicial bias claim would have been the key issue for the jury, had the trial gone forward.

Of course, with the settlement, the trial will not go forward.

The settlement, though, is pretty good:

--Cabbies whose licenses were suspended will be paid $121.50 per day for the duration of their suspensions. About 500 cabbies were suspended and the average suspension lasted 62 days.

--Cabbies whose licenses were revoked will be paid an additional $26,000 each.

--The TLC will refund all fines paid during the course of Operation Refusal.

--The City will pay the cabbies attorneys’ fees and court costs.

The settlement received some press attention, both locally and nationally via the AP.

Here is a compendium of the coverage:

NEW YORK DAILY NEWS

Hacks pick up 7M in ride-bias battle

The city agreed yesterday to a $7 million settlement with more than 500 cabbies who charged their licenses were improperly suspended for refusing to pick up minority passengers.

A federal judge in Brooklyn had already ruled the policy of confiscating the hack licenses of medallion cab drivers without a hearing was unconstitutional.

After actor Danny Glover publicly complained in November 1999 that he had trouble hailing a cab because he's black, the NYPD launched a crackdown against drivers, using undercover cops trying to hail cabs.

"They threw out the Constitution so they could look good on a hot-button issue," said cabbies' lawyer Daniel Ackman.

Under the settlement, the city will pay drivers $121.50 for each day they were suspended and $26,000 to each driver whose license was revoked while the policy was in effect from November 1999 to April 2002.

"The settlement addresses an enforcement policy that was in place for a limited time nearly seven years ago," Taxi and Limousine Commission Chairman Matthew Daus said in a statement.

He noted that recent tests found a 97% driver-compliance rate in pickups.

John Marzulli

NEW YORK POST

'STUNG' HACKS WIN

By JEREMY OLSHAN

After letting the meters run for six years, the city yesterday agreed to settle a federal class-action lawsuit and pay 100 cabdrivers whose hack licenses were revoked during an aggressive sting operation.

The drivers were targeted as part of Operation Refusal, in which undercover agents posed as minority passengers trying to hail a cab.

Each driver will get $26,000 as part of the settlement.

The lawsuit accused the city's Taxi and Limousine Commission of removing their licenses without a hearing.

But that punishment is normally reserved only for a third offense. Another 500 drivers, whose licenses were suspended an average of 62 days, will receive $121.50 per day, making the total settlement worth $6.3 million.

Beginning in 1999, after actor Danny Glover complained about bias among cabbies, the penalty enforcement was changed to include instant revocation.

"A fair hearing was impossible, as the judges were hired, fired, and paid for by the TLC," said Daniel Ackman, attorney for the drivers.

Operation Refusal is still in effect, although the penalties are now fines for the first two offenses.

NEW YORK SUN

City To Settle Lawsuit Brought by Cab Drivers Caught in TLC Stings

By JOSEPH GOLDSTEIN - Staff Reporter of the Sun
March 7, 2006

The city will pay more than $6 million to settle a lawsuit brought by about 500 cab drivers who claim they were punished unfairly amid allegations they avoided black customers and refused fares.

Former and current cab drivers are represented in the class action lawsuit brought in U.S. District Court in Brooklyn yesterday. The settlement, which has yet to be filed with the court, comes six years after the city's Taxi and Limousine Commission expanded existing sting operations to identify drivers who were avoiding minority customers.

The legal complaint does not dispute that it is often difficult for black men to get a cab. It contends that the TLC courts stripped cab drivers of their constitutional rights.

"I would say there are some racial biases among cab drivers like there are among all people," the attorney representing the drivers, Daniel Ackman, told The New York Sun. "But they never proved anybody had a racial bias. They never attempted to prove it."

The cab drivers had their taxis impounded and their licenses pulled after they allegedly ignored black investigators posing as customers or refused to drive to specific destinations, the complaint accompanying the lawsuit states.

The power exercised by investigators who seized cabs and took licenses exceeded the penalties permitted by New York City law, the complaint states. And the courts of the Taxi and Limousine Commission were stacked against cab drivers, according to the complaint. The TLC legal department held sway over TLC-paid judges who ruled against cab drivers protesting their suspension, the complaint states.

Mr. Ackman estimates that only 15% of his clients were prosecuted in TLC courts after allegedly passing by a black investigator hailing a cab for a white investigator doing the same. The rest were prosecuted for other fare refusals.

The ongoing Taxi and Limousine Commission sting operation, called Operation Refusal, was expanded following a complaint by actor Danny Glover. Mr. Glover, who is black, filed a complaint in 1999 with the TLC, claiming he had difficulty in finding a ride in New York City. Mayor Giuliani, who is named as a defendant in the suit, lauded the operation, which promised at the time to cut down on the reputed racial biases of drivers.

A spokesman for the TLC, Allan Fromberg, declined to comment on the lawsuit except to convey a brief statement by current TLC Commissioner, Matthew Daus.

"The settlement addresses an enforcement policy that was in place for a limited time nearly seven years ago, and has no effect upon the TLC's successful refusal enforcement efforts which currently have 97% driver compliance," the statement said.

Neither Mr. Fromberg nor a spokeswoman for the New York City Law Department, Kate Ahlers, would discuss the terms or amount of the settlement.

Mr. Ackman said the agreement calls for about 100 drivers who had their licenses revoked to receive payments of $26,000. Those former drivers and another 400 would also receive $121.50 for each day their license was suspended before it was either revoked or returned. Mr. Ackman said the average suspension was 62 days.

The 26-year career of the lead plaintiff, John Padberg, ended quickly, over the course of three blocks in Queens. After noticing a woman hailing him from a full three blocks away, he passed a black man he hadn't noticed but who was signaling for a fare, Mr. Padberg told The New York Sun. After the woman identified herself as an investigator, he was forced to return home without his cab or license. He is now a limousine driver.

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

THE NEW YORK TIMES

March 8, 2006

New York City to Pay Settlement to Taxi Drivers Accused of Bias
By THOMAS J. LUECK

CORRECTION APPENDED

A long legal fight over a city crackdown on cabdrivers, prompted by a black actor's 1999 complaint of racial bias, has ended in an agreement to pay about 500 cabbies whose licenses were suspended or revoked, lawyers on both sides of the case said yesterday.

Under the agreement, termed a "settlement in principle" by Paula Van Meter, a lawyer for the city, about $7 million from the city will go to the cabbies, who were penalized without having been granted hearings for showing bias toward passengers, refusing to take them to certain locations or other violations.

The cabbies were penalized by the Taxi and Limousine Commission from late 1999 through early 2002 under Operation Refusal, an enforcement tactic begun after the actor Danny Glover complained that five taxis had refused to stop for him because he is black. The accusation attracted national attention.

Operation Refusal remains in force, but a federal judge in Brooklyn ruled a year ago that the city had violated due process by suspending cabbies' hack licenses without first granting hearings. The settlement was reached on Monday in a class-action lawsuit filed on behalf of drivers who claimed financial damages.

Dan Ackman, a lawyer for the cabbies, said former Mayor Rudolph W. Giuliani; the former Taxi and Limousine Commission chairwoman, Diane McGrath-McKechnie; and the commission's current chairman, Matthew W. Daus, were named as defendants, and were expected to testify at a trial that had been scheduled to begin next Monday.

"The settlement addresses an enforcement policy that was in place for a limited time nearly seven years ago," Mr. Daus said, adding that agreement had no effect upon the taxi commission's current enforcement efforts. The agency continues to use about 200 staff officers, posing as civilians, who hail taxis and check for illegal refusals.

Under the settlement, Mr. Ackman said, about 500 drivers will receive $121.50 apiece for each day their licenses were suspended. About 100 of those drivers, whose licenses were revoked after the suspensions, will each receive an additional $26,000, and can apply for new licenses, he said.

Correction: March 10, 2006, Friday An article on Wednesday about a settlement between New York City and about 500 cabdrivers whose licenses were suspended or revoked during a crackdown on racial bias and other violations misstated the timing of a judge's ruling that the city had violated the cabbies' rights. It was in 2002, not a year ago.

Associated Press

NYC to Settle Suit Filed by Cab Drivers
By ELIZABETH LeSURE , 03.06.2006, 11:52 PM

The AP Story was picked up by The LA Times, The Washington Post, The Guardian, Newsday, The Philadelphia Daily News, The Houston Chronicle, The Seattle Post Intelligencer and other papers.

Hundreds of taxi drivers who were accused of discrimination and lost their driving privileges settled a class-action lawsuit against the city, their lawyer said Monday.

The cabbies' licenses were suspended or revoked as part of a crackdown on those who wouldn't pick up passengers because of their race, gender or other factors.

The city's effort began in November 1999 after "Lethal Weapon" actor Danny Glover filed a complaint with the Taxi & Limousine Commission because he was passed by several available taxis.

In the lawsuit, filed in 2000, attorney Dan Ackman argued that the drivers' licenses were seized and revoked without due process of the law and that the commission's taxi court was biased and unconstitutional.

A judge ruled in 2002 that the suspension policy was unconstitutional; additional allegations involving the taxi court and the revocation policy were set to go to trial on Monday before the settlement was reached, Ackman said.

The city's law department said it had "reached a settlement in principal" and was working to finalize the agreement. Ackman said the settlement must be approved by a federal judge.

Under the settlement, about 500 drivers each will get $121.50 for each day they were suspended, Ackman said. The suspensions averaged 62 days, he said.

About 100 drivers whose licenses were revoked after the suspensions will receive an additional $26,000 each and will be allowed to apply for new licenses, Ackman said.

The commission also will refund fines it collected from the drivers, he said.

Under the current Operation Refusal, drivers are issued summonses if they are accused of discrimination but are not penalized until after they appear in taxi court, the commission said.

"The settlement addresses an enforcement policy that was in place for a limited time nearly seven years ago and has no effect upon the TLC's successful refusal enforcement efforts," the commission's chairman, Matthew Daus, said in a statement.

1010 WINS Radio

Posted: Monday, 06 March 2006 10:27PM

NYC to Settle Cab Driver Discrimination Suit

NEW YORK (1010 WINS) -- The city has agreed to settle a class action lawsuit filed on behalf of hundreds of taxi drivers whose licenses were suspended or revoked as part of a crackdown on those who wouldn't pick up passengers because of their race.

The cabbies were penalized as part of an anti-discrimination effort that began in November 1999 after "Lethal Weapon'' actor Danny Glover, who is black, filed a complaint with the Taxi & Limousine Commission because he was passed by several available taxis.

Under the settlement, about 500 drivers each will get $121.50 for each day they were suspended, said their lawyer, Dan Ackman. The suspensions averaged 62 days, he said.

About 100 drivers whose licenses were revoked after the suspensions will receive an additional $26,000 each and will be allowed to apply for new licenses, Ackman said.

The TLC also will refund fines it collected from the drivers, he said.

In the lawsuit, filed in 2000, Ackman argued that the drivers' licenses were seized and revoked without due process of the law and that the TLC's taxi court was biased and unconstitutional.

A judge ruled in 2002 that the suspension policy was unconstitutional; additional allegations involving taxi court and the revocation policy were set to go to trial on Monday before the settlement was reached, Ackman said.

The drivers were suspended as part of an enhanced version of a program called Operation Refusal. During the crackdown, the city automatically suspended the licenses of drivers who were accused of discrimination before they appeared in taxi court to answer the charges.

The crackdown was aimed at drivers who did not pick up passengers based on their race or gender or refused to go to certain locations, usually in poor minority neighborhoods or areas outside Manhattan.

The lead plaintiff in the case was John Padberg, who was driving down Queens Boulevard when he was hailed by two undercover inspectors, a white woman and a black man. Padberg picked up the white woman, and when she asked him why he hadn't stopped for the black man he told her she had hailed him first, Ackman said.

About 86 percent of those who were suspended during the crackdown pleaded guilty or were convicted of the allegations against them, he said. Padberg was convicted.

Under the current Operation Refusal, drivers are issued summonses if they are accused of discrimination but are not penalized until after they appear in taxi court, the TLC said.

"The settlement addresses an enforcement policy that was in place for a limited time nearly seven years ago and has no effect upon the TLC's successful refusal enforcement efforts, which currently have 97 percent driver compliance,'' TLC chairman Matthew Daus said in a statement.

The city's law department said it had "reached a settlement in principal'' and was working to resolve the outstanding legal details and finalize the agreement. Ackman said the settlement must be approved by a judge in federal court in Brooklyn.

Glover has appeared in several movies, including all four "Lethal Weapons,'' ``Grand Canyon'' and ``The Color Purple.''

WNYC Radio

NYC Settles With Taxi Drivers
WNYC Newsroom

NEW YORK, NY, March 07, 2006 — New York City has agreed to settle a class action lawsuit filed for hundreds of taxi drivers whose licenses were suspended or revoked in a crackdown on cabbies who wouldn't pick up passengers because of their race.

The drivers lost their jobs as part of an anti-discrimination effort that began in 19-99 after actor Danny Glover filed a complaint with the Taxi & Limousine Commission because several taxis refused to stop for him.

The drivers' attorney argued that the sweep didn't allow drivers to answer charges made against them, denying them due process of the law. Under the settlement, drivers will be paid damages and those whose licenses were revoked will be allowed to apply for new ones.

From The New York Times - OP ED - 2/12/06

2006-02-14T08:26:00.000-08:00

February 12, 2006
Op-Ed Contributor
The Price of Justice

By DAN ACKMAN

OVER the past several decades, the scope and clout of the city's administrative law courts have swelled to the point where there are now at least 500 administrative law judges scattered among a dozen agencies.

While the judges hear very different kinds of cases, many of them face a conflict of interest: they are supposed to make independent judgments about the agencies that pay them. Last year, a ballot measure to bring order to these courts was approved by city voters. It's a good start, but more needs to be done.

The administrative courts generally operate under the radar for two reasons: they can't send people to prison and most of the individual cases before them, from tax assessment appeals to parking summonses and health code citations, involve relatively modest fines.

But the stakes add up. According to a 2003 report by the Charter Revision Commission, which proposed the ballot measure, the courts levy more than $600 million in fines and fees a year. More important, the administrative courts have the power to suspend and revoke licenses, which means they can close businesses and wreck livelihoods. For workers and businesses licensed by the city — street vendors, taxi drivers, restaurants, grocery stores and dry cleaners among others — the courts wield tremendous power.

As a journalist and lawyer who has written about and litigated against the Taxi and Limousine Commission, I can attest to the power of its administrative judges.

I can also state without reservation that the taxi drivers I have represented have little confidence in the fairness of the commission's court. This is in large measure because its judges are hired by the commission, and can be fired or have their hours reduced at any time. In short, their paychecks depend on the commission.

The Taxi and Limousine Commission is not alone. The judges at the Department of Health and Mental Hygiene, for instance, also work directly for the agency.

Other administrative courts reside within larger agencies. The Environmental Control Board, for example, is part of the Department of Environmental Protection; the Parking Violations Bureau is overseen by the Department of Finance.

Regardless of the agency, the city's administrative judges have an incentive to serve their own interests, and not those of the public, for one glaring reason: they have no job security. They are not civil servants, have no term in office and no contractual rights. With few exceptions, they work on a part-time or per diem basis. When a judge's income depends on the goodwill of the prosecuting agency, it's too much to expect that he or she will hold the balance of justice clear and true.

The ballot measure that passed in November called on the city to impose its first "codes of professional conduct" on administrative judges. It's a good idea. But the measure gave little guidance as to what the code might include. And it said nothing about the way the judges are hired and how they are paid.

Spurred perhaps by the initiative, Mayor Michael Bloomberg has said he intends to appoint an administrative justice coordinator to work with him, the agency heads and the city's chief administrative law judge to review the entire administrative court system. This effort could lead to genuine reform. The chief administrative law judge, as it happens, works for the Office of Administrative Trials and Hearings, a distinct agency. Judges in this court are hired for five-year terms, serve full time and hear cases only from outside their agency.

Because its judges serve for fixed terms and are not part of the city's regulatory apparatus, this court can rightly boast of its status as independent. As the court says on its Web site, the independence "of the decision maker from the prosecuting agency invites a higher level of confidence in the fairness of the adjudicative process."

This is an example that the city's other administrative courts, prompted by the mayor and renewed public concern, would do well to follow.

Dan Ackman is a lawyer.

My First WSJ.com Law Column

2006-01-07T09:15:00.000-08:00

This is my inaugural Wall Street Journal Online law column:

State Courts Seek Wiggle Room Around Decision in Kelo
By DAN ACKMAN

THE WALL STREET JOURNAL ONLINE
January 6, 2006

Rearview Mirror, a new feature on the Online Journal's law page1, looks at how judicial decisions from several months ago are playing out in courts and for businesses. If you have an idea for a Rearview Mirror feature, please email us at lawblog@wsj.com2, and please put Rearview Mirror in the subject line.

Last June, when the U.S. Supreme Court decided Kelo v. New London, ruling that local governments could exercise their power of eminent domain even if the land taken ended up in private hands, it boded well for cities and developers. Soon after, though, perceptions of the ruling changed.

For starters, legislation to restrict local government powers was proposed in dozens of states, and was enacted in several. The legislative "backlash" led some municipalities to pull back on controversial projects. Perhaps more surprisingly, now a few state courts seem to be taking a skeptical look at the ruling, trying to figure out whether it meshes with state constitutions, statutes, and procedural rules.

Kelo involved a development project in New London, Conn., in which the city sought to use the power of eminent domain to force the sale of 15 modest homes. The land on which the homes sat was to be used to build a research facility for Pfizer Inc., the pharmaceutical company, as well as a nearby conference center, marina, and shopping mall, much of which would wind up in private hands. The Court, in a 5-4 decision, found the city's argument -- that the sale of the homes would aid economic development -- persuasive enough to satisfy the Fifth Amendment's "public use" requirement.

The case was one of the most publicized of the 2004-2005 term, and many pundits rose in protest. They rallied behind the charge leveled by Justice Sandra Day O'Connor, in a dissenting opinion, that the Court had abandoned a "long-held, basic limitation on government power" and mused that "all private property is now vulnerable to being taken and transferred to another private owner"—albeit for "just compensation," which the Constitution also requires.

Since the Kelo ruling, 38 states have proposed legislation designed to restrict the power of state and local governments to exercise rights of eminent domain for economic development purposes, according to Dana Berliner, a lawyer with the Institute for Justice, a not-for-profit law firm that represented the homeowners in Kelo. Alabama, Delaware and Texas have enacted laws already. The Michigan legislature voted on an amendment to the state constitution, subject to popular approval in an election in November. "The focus has shifted to the states and that's where it should shift," says David Parkhurst, a lawyer for the National League of Cities, which generally backs the rights of local governments.

In one sense, this is nothing new. In his majority opinion, Justice John Paul Stevens noted that some states had long established stricter eminent domain guidelines, either as a matter of state constitutional law or statute.
While the legislation churns, there have been several court decisions that observers say suggest an unease over the broad power allowed states and cities by the Supreme Court.

On Dec. 16, the Mercer County, N.J. Superior Court rejected an attempt by the City of Trenton to expand a redevelopment area to include an area of what the city planners called "substandard, unsafe, unsanitary, dilapidated" buildings. The county court didn't refer to Kelo and it didn't reject the thrust of the Kelo decision: that the state could use its authority of eminent domain in this manner. But the court decided that the city had failed to present "substantial credible evidence" that the property fell within New Jersey's statutory definition of an area in need of redevelopment: where buildings are sub-standard or unsafe or that the land is increasingly under-utilized.

Timothy Duggan, a partner with Stark & Stark, the New Jersey firm that represented the property owners, says the Kelo case loomed in the background. "State courts now understand their role in protecting property rights," Mr. Duggan says, adding that, given the unsettled statutory definition of blight, New Jersey courts in particular will be less likely to "rubber stamp" the conclusions of local planners.

New Jersey, the nation's most densely populated state with an active development community, has long been "a hotbed of private condemnations," according an Institute for Justice Report. Before the Trenton case, but in the wake of Kelo, two separate New Jersey state courts also rejected cities' plans to take property, citing each city's failure to present "substantial evidence" that the property needed redevelopment.

Several other state courts have reached similar conclusions, also without necessarily citing Kelo. In September, an Arizona trial court found that the use of eminent domain to transfer land to a retail shopping complex failed to satisfy the state's definition of "public use." Other judges have applied Kelo reluctantly. A Missouri Circuit Court judge, ruling for the city of St. Louis in an eminent domain case, compared the Kelo decision to the denial of reinforcements to the Alamo.

And more state court battles loom. One big eminent domain showdown will come in Ohio when that state's highest court hears arguments in the case of Norwood, Ohio, a Cincinnati suburb, where the town fathers want to take middle-class homes to make way for a store and office complex. A few local residents refused to sell to the developer so the city exercised its eminent domain authority, designating the area "blighted." The property owners lost in the lower court, a decision stayed by the Ohio Supreme Court pending appeal. In front of the Court, the residents' lawyers will argue that the "blighted" designation is a fraud and will ask the Court to decide whether Ohio law allows such a taking.

Dan Ackman is a lawyer and Senior Writer at the Institute for Judicial Studies, a think tank that examines the judiciary.

The TLC, George Bush, Lawyers and Loyalists

2005-12-21T07:20:00.000-08:00

Here is my letter to Bruce Ackerman, Sterling Professor of Law and Political Science
at Yale Law School

Dear Prof. Ackerman:

I took your class at Columbia law in 1987 and read with great interest your piece this morning in Slate on the president’s secret domestic spy program [The Secrets They Keep]. I think your theme is universal as it put me in mind of my long-running litigation on behalf of NYC taxi driver against the NYC Taxi and Limousine Commission, albeit on a smaller, local scale

In my case, the TLC reacted to publicity by movie star Danny Glover, who claimed that cabbies sometimes him service because he is black. While the city has long had laws and TLC regulations concerning service refusals, which included a specific penalty scheme for violating those laws, the TLC blatantly disregarded it. The agency proceeded to suspend taxi driver licenses without hearings. It then sought to revoke licenses, despite the law stating that the penalty for a first violation was a fine. (Revocation is allowed—but for a third offense.)

Rather than act publicly, the TLC acted in dark of night, never announcing the new penalty scheme, never seeking to amend the governing statute or even its own rules. The TLC was aided in this respect by its chairwoman Diane McGrath-McKechnie, a political appointee, and her hand-picked general counsel Matthew Daus. At a deposition, Daus testified about his loyalty: “My duty of loyalty, in my view, is to my client, which is Diane McKechnie.” Thus the chairwoman served her bosses politics (Mayor Giuliani was about to run for Senate against Hillary Clinton) and the lawyer served the chairwoman. The law and the Constitution were not served at all.

Reading your piece this morning, it was very familiar indeed.

All the best,

Dan Ackman

For background on the case
For briefs and other case files

Revisiting the Fulton Fish Market Shrimp King

2005-11-12T06:10:00.000-08:00

As the Fulton Fish Market finally decamps for the Bronx, it's time to revisit by 2000 article from the Times on Donald Julich, aka the Shrimp King, now retired.

New Yorkers & Co.:
The Big Man in Shrimp
By DAN ACKMAN
07/02/00

YEARS ago, Donald Julich Sr. was eating lunch at Sweets, the famous South Street restaurant, now defunct, when a man came up behind him and said, "Excuse me, I understand you're the shrimp king of the Fulton Fish Market, and I'd like to shake your hand." The voice was familiar, and when Mr. Julich looked up, so was the face. Burt Lancaster was smiling at him.

"I'm happy to shake your hand," Mr. Julich recalls saying. "But as far as I'm concerned, you're the king. I'm just a peasant."

A king he may not be, but Donald Julich does have a throne, albeit a modest one, and a crown. The crown is Crown Fish Inc., his seafood business at the Fulton Fish Market. His throne is a bar stool on the sidewalk on South Street where for 52 years this square-shaped man with a hawkish face has presided over Crown Fish, buying shrimp and shellfish by day and negotiating with customers by night.

The Fulton Fish Market dates from 1869, when the first permanent building was erected on South Street. While fish that used to come in by boat is now trucked and flown in, the buying and selling continues as it has for decades. Fish is displayed in the open air on stands and in boxes that spill onto the sidewalk. Buyers and sellers meet face to face, without a fax machine or Internet connection in sight.

Mr. Julich, 70, the big man in shrimp, has witnessed as much of the market's history as any man alive. With the city considering plans to move the market to Hunts Point, in the Bronx, it is a history that may be coming to an end. Mr. Julich, though, is less concerned with history — "Don't put me down as an adviser to Abe Lincoln" — than with his part in what the city estimates is a billion-dollar industry.

His employees arrive about midnight to display the shrimp in sidewalk stalls. Mr. Julich shows up about 4 a.m., when the buyers start arriving.

On one recent morning, he faced off with a customer named John Kim, who owns a fish store in Queens. They spent a half hour haggling over a box of lobster tails. Mr. Kim wanted to pay $17.25 per pound. Mr. Julich held his ground at $17.50.

"Go on, get out of here," Mr. Julich said in an accent that betrayed his Newark roots. "Come back tomorrow and you'll pay $18 and feel lucky to get it." When Mr. Kim left, he said, "Don't worry, he'll be back." Sure enough, he was, an hour later. He paid $17.50 and groused when Mr. Julich told him he had just one box left to sell him.

Mr. Julich and Mr. Kim both finished with the deal, Mr. Julich's son, Donald Jr., marked the box with a black crayon and alerted a journeyman, as they are called, who grabbed the box with a cargo hook and hauled it to the parked trucks. In a concession to modernity, some of the journeymen use forklifts, which whiz by at a frightening pace.

By dawn, buyers are gone back to their stores and restaurants and Mr. Julich and his men are cleaning up and making calls to make sure that they have fish to sell the next morning.

Mr. Julich's father, Fred, once a restaurateur, started the family in this day-for-night existence in 1946. The son joined a year later after graduating from high school. In 1955, he took over the company, and the next year, his brother, Richard, joined him after a stint in the Navy. They worked as partners until Richard retired in 1992. When Donald sells his last shrimp, Crown Fish will go to his son and nephews, David and Richard, who joined in their late teens and who are now in their mid-30's. Dynasties of this sort are the norm on South Street, where businesses tend to stay in families for three and even four generations.

From the beginning, the Julichs specialized in shrimp, which has become "the No. 1 seafood item in the world today," Mr. Julich said. It is also, pound for pound, one of the most expensive, an important consideration in a business where sales space is at a premium.

OVER the years, Mr. Julich has expanded the line to include oysters, clams, scallops and lobster tails. Crown Fish has never dealt in fish, though, and the company name remains a mystery. "Why he called it Crown Fish, I'll never know," Mr. Julich says. Asked how much shrimp he sells in a week, Mr. Julich says, "Ask the I.R.S." Mr. Julich doesn't look rich. But then maybe people who work in the dead of night surrounded by the smell of fresh fish rarely do.

Buying and selling small marine crustaceans may seem a simple thing, but it is not without complexity. The 15 to 20 varieties of shrimp Mr. Julich sells come not just from the southern United States but from a dozen countries in Central and South America, along with other types of shellfish from as far away as Australia. In addition to knowing from where to buy at a given time of year, Mr. Julich has to anticipate what size shrimp his customers may want.

One of the major changes on South Street is the emergence of Asians like John Kim as a buying force. Depending on which owner is doing the estimating, Koreans and Chinese make up 60 to 80 percent of the buyers. One thing hasn't changed: the market remains a man's world. Almost no women work there. "Would you want your girl to work with these animals, these gorillas?" he says.

Mr. Julich and his fellow merchants complain that margins have shrunk in recent years. Since 90 percent of his sales are on credit, it's crucial that he know his buyers and keep after them for payments. For that reason, he says he has many acquaintances in the business but just a few friends.

"If they're a friend and you have a problem, it's harder to fix it," he says.

While the Fulton market looks a lot as it always has, Mr. Julich has seen it, like other central markets, decline in importance in the industry. He says that more buyers buy direct from sellers at the piers, sidestepping the market. Mr. Julich acknowledges the change and doesn't begrudge it when the buyer is making a substantial order. But he shows some anger at dealers who sell mostly to wholesalers like him but will sell a single box of shrimp or a single bag of clams direct to a restaurant. "I know why they do it, but in the end they're hurting their own business," he says.

While the market may not be the hub it once was, Mr. Julich agrees with his friend Dan, a fellow merchant, who says that it still sets the tone for the whole country.

Dan would not give his last name. People at the market are circumspect, knowing as they do that nearly every writer who visits focuses on its supposed domination by the Mafia. Mr. Julich says he has never had a problem with organized crime and adds, as do most people interviewed there, that allegations of mob rule are way overblown.

"I've been here 50 years and I've gotten to know pretty much everybody," he says. At other times, though, he cautions, "Be careful what you say because people could get annoyed."

The city has announced it is considering moving the fish market to Hunts Point. To Mr. Julich, the move would be a disaster. "You can't have the market behind a locked gate where you need a badge to get in and out," he said. "Buyers have to be able to walk around and look at what they want. This is an open market." He concedes that conditions at the market are primitive, but insists that they are sanitary.

There used to be a half-dozen stalls specializing in shrimp at the Fulton Fish Market, Mr. Julich says. Now there are just two. Does that mean he is now the king, as Burt Lancaster said? "Well, Lancaster's dead, so maybe that moves me up a notch. But I'm still a peasant."

One weekend can make you a millionaire-- seriously

2005-11-02T20:49:00.000-08:00

Ninety minutes into a recent speech on his life and how he lives it, Robert Kiyosaki called a break. Except it wasn’t a break because Kiyosaki hates breaks. He asked his listeners to review with their neighbors what they had learned so far. Mitch, a big fan of Kiyosaki and Rich Dad books, said that for him, “The key for me is: Don’t say ‘can’t;’ say ‘can.’ I’ve heard it before, but I can’t hear it enough.” Which works because Kiyosaki can’t say it enough.

Kiyosaki is the fabulously successful author of Rich Dad, Poor Dad and a shopping bag full of sequels. His speech to Mitch and about 400 of his fellow members of the New York City Cashflow Club was a warm-up of sorts. Two days later, Kiyosaki would arrive at Manhattan’s Javits Center, where a crowd of nearly 50,000 would mass for the Learning Annex Real Estate Wealth Expo. There made headlines drawing a $1.5 million fee for a one-hour speech. But if Trump was the star of the show, Kiyosaki was the lollapalooza’s workhorse, appearing three times over the course of the weekend, the last time to introduce the Donald.

Kiyosaki has transcended real estate guru status. He has become an all-purpose dispenser of wisdom. In a nutshell that wisdom is: The rich are different because they think different. Folks like his “poor dad,” a school administrator, may work hard and earn a good salary, but are perennially broke. His “rich dad,” actually the father of a friend, was unschooled, but amassed enough real estate to become one of the richest men in Hawaii. Poor folks say, “I can’t afford it.” The rich decide what they want, tie it up, and then figure out how to pay for it.

This is the lesson he taught the members of the Cashflow Club—a group devoted to Kiyosaki’s Cashflow 101 board game, which he says will transform your mindset in just a few sessions. He preached the same sermon to a crowd of 5,000 at the Real Estate Wealth Expo, many of whom were hard core Kiyosaki fans as well They’d heard it before, but they loved hearing it again.

Entering the Real Estate Wealth Expo was like walking into the vortex of the real estate bubble and visiting the seeds of the bust at the same time. With Trump drawing the masses, Learning Annex CEO Bill Zanker fielded an undercard that included legendary success coach Tony Robbins, hypnotist and “master of persuasion” Marshall Sylver, and all manner of real estate expert. The experts covered diverse specialties, everything from buying real estate cheap at probate, to buying at real estate cheap at auctions, to buying real estate cheap and flipping it quick. Then there were generalists like Robert Shemin, whose seminar was entitled simply and directly, “How to Be a Millionaire Real Estate Investor,” though in fairness pretty much every speaker was teaching that one.

Downstairs was an overflow room, where the big stars appeared on big screens, and smaller rooms for lesser lights. These were flanked by nearly a hundred exhibitors selling real estate, financing, services and still more advice. Developers from sunny climes like Florida and Las Vegas pedaled pre-construction condos. The condos were easily financed and ripe for flipping, one developer told me, because they were priced below market and the market was sure to rise since fresh retirees were arriving daily and bidding it up. It turned out finding below-market real estate was easier than I thought as here it was looking for me.

The gurus explained that there is plenty of property everywhere available from “motivated sellers” at “below-market” prices. That the gurus were surrounded by thousands of motivated buyers, representing millions more who had already bid up property prices seemed not to register. A good guru stays on message. “We do not buy retail,” intoned Scott Scheel, a specialist in commercial properties. “Do you think Donald Trump, buys retail?” he asked, invoking the man himself.

The key was finding it soon and selling it fast, and that could be done by learning a few “secrets.” Some of the secrets were aired to the thousands in the Javits Center. But the good guru withholds just enough to sell pricy courses a few weeks hence. There, in the company of just a few hundred, the more secret secrets would come to light.

Scheel for instance offered a course valued at $10,476, and a bargain at that. But then he priced it well below market himself-- at $1497 to the first 200 to sign up. At first, there were few takers. But as he moved to the back of the room, braying his pitch, he was joined by a few, and then man, an unruly mob clamoring for the bonus available to those at the front of the line.

If Scheel and folks like Ron (“How to Quick Turn Real Estate in NY with No Money Credit or Risk”) LeGrand were infomercials for themselves, Kiyosaki mastered the soft sell. While he punctuated his speech with examples drawn from his various books and lessons from his board game, he didn’t scream it. Still, pupils were drawn to his exhibit booth, which did a brisk business in books and CDs by Kiyosaki and by advisors to Kiyosaki, as well as in the cash flow game, which was selling for $175.

Though it’s easy to denigrate self-help authors in general and the Learning Annex in particular, finding a dissatisfied customer at the expo was like looking for an atheist at a revival meeting. Part of the reason: despite the grandiose claims of the gurus, expectations of the acolytes are generally modest.

Fans—and they were everywhere—were vague about their desires, but certain they’d been met. Michael Bressler, who works “in commodities” said, “He’s probably the only person who puts it in a simple message,” and added, “I look at assets the way he looks at assets. He’s just amazing.” Marie Menerville, a real estate agent and investor, said simply, “All his books are very informative, very motivational.” Many fans said reading Kiyosaki and playing his board game did indeed spur them to take control of their financial lives.

Although his message goes beyond real estate, most of his wealth, he says, is from property. Given his propensity, it’s natural to ask him whether real estate prices are at bubble levels. “Absolutely,” he told me, going so far as to compare the U.S. today to Weimar Germany. But with a bust imminent, his wife Kim advised, it’s more important than ever to separate good real estate deals from the bad.

How to know the difference? One way is to read a book just written by his own real estate advisor, Ken McElroy, and published in the Rich Dad series, or he can listen to Kim, who spoke on “How to Spot a Good Deal from a Bad Deal.”

Though Kiyosaki seeks his counsel in-house, the ordinary gurus do seem to learn from each other. LeGrand cited the wisdom of Sylver. Probate specialist Mark Gonsalves referred repeatedly to Kiyosaki. Everyone involved cited the example of Trump and the word of Robbins to the effect that you must “take action” especially with regard to signing on for additional seminars.

Only Trump himself refused to play the game. Not to denigrate the speakers who came before him, but “it’s all about instinct,” Trump said. His instincts, for instance, led to “The Apprentice” and success after success. He also advised the aspirants to be nice to their bankers so they won’t screw you. But if they (or anyone) do screw you, “You screw them back ten times harder.” Do what you love, stay focused and never quit, he said. Finally, “Be lucky,” he advised. The crowd stood and cheered for the man who Kiyosaki called “the world’s rich dad.”

On the way out, one man who would be Trump bellowing into his cell phone, reviewing the billionaire bromides. The man paused to listen. Then he said: “Sure I’ve heard it before, but it’s good to hear it from another perspective.”

Harriet Who?

2005-10-27T07:25:00.000-07:00

Based on my piece in BreakingViews:

Harriet Miers’ pressured withdrawal of her nomination for the U.S. Supreme Court raises not one question of succession, but two.

Most immediately, there is the question of who President Bush will nominate to replace retiring justice Sandra Day O’Connor. If he nominates another woman, he can be accused of pandering and imposing a quota at the highest level of government—creating a de facto “woman’s seat” on the Supreme Court (or, more specifically, a Republican woman’s seat). If he appoints another marginally qualified loyalist, like Miers, it will raise serious questions of competence. If he appoints a red meat anti-choice conservative, he will provoke a fight with Democrats, and even a few Republicans, that social conservatives say they want, but which Bush has taken pains to avoid.

If that fight ensues, it will be bloody, and will test whether Bush really wants to work hard to please that part of his base—or if he just wants them handy at election time.

Perhaps more serious is the question of presidential succession. As Vice President Dick Cheney has sworn off his own presidential aspirations, there is no clear successor to the Republican presidential nomination. Bush has no one to hand the mantle of power. That means no one stands ready to advance his agenda, whatever it may be. That makes him more of a lame duck—and an earlier lame duck—than second term presidents are normally.

Bush has lost the fight over Social Security. The next big item on the domestic agenda is tax reform. Lowering taxes is easy politically. But tax reform, if revenue neutral, means winners and losers and tough choices. A president who botched Katrina and nominated Miers and whose senior advisers may be indicted any day, bogged down in Iraq, probably won’t have much political capital left to do any serious governing.

Selling of the New York Times

2005-10-21T09:42:00.000-07:00

Let the Times be Google

A similar posting by me appeared in BreakingViews

Google, with a market value of $86bn may or may not be wildly overpriced. But the fact an upstart, selling nothing but access to information, is worth more than 20 times The New York Times Company, proud owner of the US paper of record, is a stunning fact. How can the Times get a piece of the Google magic?

Certainly it needs a boost as the company these days can’t satisfy anyone. Its quarterly earnings reported yesterday were down by 52% on higher payroll, printing and distribution coats. Editorially, it obsesses in scandals of its own making, such as Jayson Blair and, recently, the Judith Miller affair. Like all newspapers it suffers from competition from the web. The Times own web site is popular—21 million unique visitors in September-- but readers were irked when they were asked to pay for access to the newspaper’s columnists.

One would be hard pressed to say that Google is a superior portal to information than is the Times Company (which also owns other newspapers, and television and radio stations). But the Times, even more than Dow Jones or Gannett, has failed to monetize its information, and seems to have no solid plan to do so. Still in a late ‘90s era which glorified “eyeballs,” the Times has refused to charge online readers. Then it took a half-step by charging for its opinion columns.

What it should do is sell the daily paper online. Sure it will lose some readers, but if the Times is compelling, millions will pay. Then it should monetize yesterday’s papers, which no one normally pays for. It then should make the Times archive into a massive, searchable database. The database should be free, but indispensable. In other words it should be good enough that it can be funded by ads targeted to the search term: the same business that made Google rich.

Google says it wants to catalogue the world’s information. But it owns none of it. Surely the fact that the Times produces buckets of information should be worth something.

Miller's Mess

2005-10-17T07:03:00.000-07:00

The Judith Miller affair continues to spin. Miller's own first person account of her grand jury testimony actually makes her seem worse than we knew:

"Mr. Fitzgerald asked about a notation I made on the first page of my notes about this July 8 meeting, 'Former Hill staffer.'

My recollection, I told him, was that Mr. Libby wanted to modify our prior understanding that I would attribute information from him to a 'senior administration official.' When the subject turned to Mr. Wilson, Mr. Libby requested that he be identified only as a 'former Hill staffer.' I agreed to the new ground rules because I knew that Mr. Libby had once worked on Capitol Hill".

Here, Miller agrees not just to keep Libby's ID hidden, but to lie about that ID. This strikes me as a particularly egregious practice, worse than allowing him anonymity? Indeed, it emphasizes what I wrote in Forbes back in February: The idea of a journalist shield rule is to protect the anonymity of sources who fear retribution from the powerful, whether in government or business. Shielding the identity of a top government official who is using his anonymity to mislead play the press to his benefit turns the whole rationale on its head.

Here's how I put it in Forbes.com:

Expose The Press Players
Dan Ackman, 02.16.05, 9:12 AM ET

News accounts of the appeals court decision in the Valerie Plame affair emphasize that reporters must testify to a grand jury or face jail. But that's not quite right. The court's ruling yesterday was really that anyone and everyone must testify to the grand jury, reporters being no exception.

Yesterday's ruling by the D.C. Circuit Court of Appeals upholds an earlier judgment that Matthew Cooper of Time magazine and Judith Miller of the New York Times have an obligation to testify to the grand jury about who leaked Plame's identity as a CIA agent, which could be a federal crime. Both reporters fought to stop a subpoena from a special counsel appointed by the attorney general investigating the leaks. They cited a purported journalist's privilege, which they say is necessary to protect sources who spoke to them pursuant to an agreement that their names be kept out the papers. The court said there is no such privilege either under the first amendment or federal common law.

Whether there should ever be a journalist's privilege is an interesting question. As the court pointed out in its decision yesterday, many states have enacted so-called shield laws, which protect the relationship between a confidential source and a reporter. The court also noted that the federal government has no such statute, and it declined to create the privilege on its own....

The idea that reporters should be permitted to shield the identity of confidential sources even in the face of a valid grand jury subpoena is based on the belief that an evidentiary privilege (like the one a lawyer shares with his client) will encourage sources to reveal truths to journalists. The classic example would be a witness to a scandal who tells what he knows to a journalist, who then makes the scandal known, albeit without the name of his source who leaked the information. It's hard to believe that the remote possibility of a subpoena down the road from a grand jury--which itself operates in secret--will substantially chill the source-reporter relationship.

In any event, the Plame case is nothing like the prototype that might justify a privilege. In this case, the crime, if there was a crime, was the leak itself. The sources were not witnesses to scandal; they are the scandal. Those who exposed Wilson's wife in effect used the press to do their dirty work, not to cleanse it. Their goal, at least according to Wilson, was not to reveal truth, but to punish Wilson for his revelations.

As best as we can tell, they are not brave truth tellers, but craven score-settlers, and powerful government officials to boot. Wouldn't it serve even the press' interest--along with everyone else's--to expose these scoundrels rather than continue to help them hide?

That Dobson is such a cutie

2005-10-12T14:28:00.000-07:00

He told me where the body was and where I could find the murder weapon. He explained the cause of death in detail, but, no, he did not admit killing the man....

From the New York Times, Oct. 12, 2005:

Mr. Dobson said he talked to Mr. Rove on Oct. 1, two days before Mr. Bush announced his choice, and had been told that "Harriet Miers is an Evangelical Christian, that she is from a very conservative church, which is almost universally pro-life, that she has taken on the American Bar Association on the issue of abortion and fought for a policy that would not be supportive of abortion, that she had been a member of the Texas Right to Life."

Mr. Dobson went on to say that he and Mr. Rove had not discussed cases that might come before the court and that "we did not discuss Roe v. Wade in any context." The Supreme Court's 1973 decision in Roe v. Wade established a woman's right to have an abortion.

Ackman and the Cronies

2005-10-12T13:08:00.000-07:00

Are journalists and even lawyers grromed to be liberal Democrats. More likely they start out that way. John Tierney sees it as a problem, one of self-selection or cronyism:

John Tierney writes in his October 11 NY Times Column:

October 11, 2005
Where Cronies Dwell
By JOHN TIERNEY
Journalists and legal scholars have been decrying "cronyism" and calling for "mainstream" values when picking a Supreme Court justice. But how do they go about picking the professors to train the next generation of journalists and lawyers?

David Horowitz, the conservative who is president of the Center for the Study of Popular Culture, analyzed the political affiliations of the faculty at 18 elite journalism and law schools. By checking all the party registrations he could find, he concluded that Democrats outnumber Republicans by 8 to 1 at the law schools, with the ratio ranging from 3 to 1 at Penn to 28 to 1 at Stanford.

Only one journalism school, the University of Kansas, had a preponderance of Republicans (by 10 to 8). At the rest of the schools, there was a 6-to-1 ratio of Democrats to Republicans. The ratio was 4 to 1 at Northwestern and New York University, 13 to 1 at the University of Southern California, 15 to 1 at Columbia. Horowitz didn't find any Republicans at Berkeley.

Some academics argue that their political ideologies don't affect the way they teach, which to me is proof of how detached they've become from reality in their monocultures. This claim is especially dubious if you're training lawyers and journalists to deal with controversial public policies.

I realize, from experience at six newspapers, that most journalists try not to impose their prejudices on their work. When I did stories whose facts challenged liberal orthodoxies, editors were glad to run them. When liberal reporters wrote stories, they tried to present the conservative perspective.

The problem isn't so much the stories that appear as the ones that no one thinks to do. Journalists naturally tend to pursue questions that interest them. So when you have a press corps that's heavily Democratic - more than 80 percent, according to some surveys of Washington journalists - they tend to do stories that reflect Democrats' interests.

The following day, the Times published my letter to the editor:

From The New York Times, Oct. 12, 2005

To the Editor:

As a graduate of both law school and journalism school, I find it hard to argue with John Tierney's premise that law professors and especially journalism professors tend toward liberalism. But it's harder to argue that either profession favors liberals outside the academy.

Indeed, conservative lawyers, if they are a minority, have a much better shot at judgeships or high-level government positions since it's conservatives who are doing the appointing more often than not.

More broadly, if liberals are channeling their own most brilliant acolytes into law and journalism, that just leaves more space in business schools, banks and corporations for young conservatives. Thus, the conservatives wind up wielding greater power, lacking only vague cultural influence.

If conservatives had concocted this arrangement deliberately, they could have hardly done better for themselves.

Daniel L. Ackman

Jersey City, Oct. 11, 2005

Why Miers?

2005-10-05T10:48:00.000-07:00

Not only has Harriet E. Miers never been a judge, she has barely been a litigator.

She must not have done very well in law school, because had she graduated with any kind of honors, we would have heard about it.

Then, according to the blog Is That Legal,, citing New Jersey lawyer Peter Goldberger:

A quick WestLaw search suggests that Harriet Miers has never argued before the Supreme Court (nor has her name appeared on brief there), and she has argued three cases before the Fifth Circuit (with her name appearing as additional counsel on a handful of others) over the last 30 years -- two of them pro bono or by appointment of the court. Her argued cases are: Thanksgiving Tower Partners v. Arnos Thanksgiving Partners, 64 F.3d 227 (5th Cir. 1995) (commerical real estate dispute); Ware v. Schweiker, 651 F2d 408 (5th Cir. 1981) (volunteer pro bono counsel for Social Security disability applicant, through legal aid program); Popeko v US, 513 F.2d 771 (5th Cir. 1975) (sec 2255 appeal for federal prisoner, by appt of court).

Her record in the Texas state courts is equally limited.

The one defense to the cronyism charge is that President Bush and Miers are probably not all that close. You don't appoint good friends to be lottery commissioner. That's where you install friends of cousins' friends. That she was Bush's "personal lawyer," strikes me as inconsequential, too. Bush never had the kind of career, nor the inclinaion (that is an interest in doing things legally), that would lead him to forge strong ties to his lawyer.

Then there is the comparison with other non-judges to get the high court nod. These individual tended to be towering figures-- attorneys general, senators and so on.

Of recent justices who were never judges, all were either distinguished lawyers, holders of high office or top Justice Department lawyers. Here’s a list:

Owen Josephus Roberts: appointed by Hoover in 1930; was in private practice, but also had served in federal law enforcment as special counsel

Stanley Forman Reed: appointed by F. Roosevelt 1938; was U.S. solicitor general

Felix Frankfurter: appointed by F. Roosevelt in 1939; was a top tier law professor at Harvard

William Orville Douglas: appointed by F. Roosevelt in 1939; was SEC chairman

James Francis Byrnes: appointed by F. Roosevelt in 1941; was a U.S. Senator

Robert Houghwout Jackson: appointed by F. Roosevelt in 1941; was U.S. Attorney General

Harold Hitz Burton: appointed by Truman in 1949; was a U.S. Senator

Thomas Campbell Clark: appointed by Truman in 1953; was U.S. Attorney General

Earl Warren: appointed by Eisenhower in 1953; was Governor of California

Byron Raymond White: appointed by Kennedy in 1962; was Deputy U.S. Attorney General

Arthur Joseph Goldberg: appointed by Kennedy in 1962; was Secretary of Labor

Abe Fortas: appointed by Johnson in 1965; was in private practice and known as a first class Supreme Court advocate

Lewis Franklin Powell, Jr.: appointed by Nixon in 1971; was in private practice, also president of the ABA

William Hubbs Rehnquist: appointed by Nixon in 1971: was Ass't U.S. Attorney General

Harriet Miers was a top manager of her law firm, but never a leading lawyer by any lights. To be sure, may Supreme Court justices become “great” or have greatness thrust upon them. They don’t necessarily start out that way. (And after all, what is a federal judge but a lawyer who knows a senator?) Still, unlike the future justices listed here, she has not been steeped in federal law or the type work in which federal judges must know.

Virtual Excitement

2005-09-13T03:07:00.000-07:00

At the Cyber Games, Even Virtual Excitement Is in Short Supply
FROM THE WALL STREET JOURNAL
By DAN ACKMAN
September 13, 2005; Page D8

New York

Cyber games may be small-time now, but Peter Weedfald has seen the future and the future is Korea. In Korea, top videogamers can earn six-figure salaries and have the status of sports stars. The "gamers" and their games are the subjects of two 24-hour cable television networks devoted to gaming the way ESPN is devoted to sports. "You'll see [gamers] on a box of Wheaties," Mr. Weedfald says. If you think his vision is far-fetched -- well, five years ago the popularity of poker on TV might have seemed far-fetched, too.

Mr. Weedfald is a marketing executive for Samsung Electronics, the lead sponsor for the World Cyber Games, whose U.S. final was held over the weekend at the Hammerstein Ballroom in Manhattan. So his enthusiasm may be understandable. But he may have to wait for Wheaties if this weekend's event is any indication.

Hoping to exploit the popularity of videogames, the World Cyber Games promotes tournaments as both sporting events and cultural festivals. But are they either?

The World Cyber Games, owned by South Korea-based International Cyber Marketing Inc., aims to both exploit and expand the popularity of videogames and to be both the Olympics of cyber-sport and "a true world cultural festival." But even at the highest level, and with all due respect to the fans in Korea, a gamer in full action is still a kid staring at a screen while twiddling his thumbs on a console or fingering a mouse. Just as videogames are essentially cartoons of the action they parody, cyber games, even at their highest level, are parodies at best of sporting competitions.

If the U.S. finals of the World Cyber Games are any indication, they are joyless and don't provide much in the way of culture, either.

That gaming has a world-wide following is undeniable. Americans spent $9.9 billion on videogames last year, including software, consoles and accessories, according to the NPD Group, which tracks the industry. World-wide, 500 million people play videogames on a regular basis, says Robert Krakoff, president of Razer, a maker of videogame peripherals and a World Cyber Games sponsor. An untold number play the games seriously enough to compete in leagues and tournaments over the Internet. Those who aspire to gaming glory devote as much as 50 hours a week to the games, though most of the top players can maintain their skills by practicing 20 hours weekly.

The World Cyber Games is not alone: The gaming circuit competes for primacy with the Electronic Sports World Cup and the World E-Sports Games. About 40,000 entered World Cyber Games qualifiers, which are open and free of charge, organizers say. International Cyber Marketing flew 185 contestants (184 boys and young men, nearly all between 18 and 22, and one girl) to New York to compete for $34,000 in total prize money and a spot on Team USA, which will compete for a world championship in Singapore next month. There the prize money will total $420,000.

Last year in San Francisco, the U.S. team placed third, its best finish in four tries at the World Cyber Games, trailing Korea and a plucky squad from the Netherlands. Why doesn't the U.S. lead the world in cyber games? Don't American kids have more computers and more free time?

A partial answer may be found in the mix of games selected. The U.S. is good at shooting games, says Won Suk Ohm, executive vice president of World Cyber Marketing. It won the world title last year in Counter-Strike, a personal-computer-based game played between teams of mock terrorists and counter-terrorists, and Halo 2, an Xbox console game that mimics gunfights between genetically enhanced super-soldiers. But America is not so good at strategy games like StarCraft or WarCraft III, both for PCs. It also lags in FIFA Soccer.

True to form, most of the excitement at the Hammerstein Ballroom on Saturday was during the shooting events. In Halo 2, Dan and Tom Ryan, twin 19-year-olds from Pickerington, Ohio, representing Team 3D, a professional squad, beat another Team 3D pair in the final. In an earlier round, two-time World Cyber Games champion Matt Leto, at 21 an aging cyber-gunslinger, was knocked out.

The high point of the event was the Counter-Strike final, where another Team 3D squad beat Complexity in a tight final match. While Team 3D was defending champ in the five-man game, Complexity had won the Electronic Sports World Cup in Paris in July. The Team 3D Counter-Strike players are among the two dozen Americans who can make a living playing videogames, according to Craig Levine, 22, the team's managing director.

For all the artificial mayhem, the atmosphere in the ballroom was subdued. To be sure, the organizers do their best to inject excitement. "Cultural events" included an appearance by Mick Foley, a professional wrestler, who signed autographs.

Organizers employed "shoutcasters," who are something like sportcasters, only louder and more frenetic, to sit on stage screaming explanations of what was happening on overhead screens being manipulated offstage if not entirely out of sight of the small band of spectators who showed up.

For the most part, though, it was hard to get a rise out of either the gamers, whose eyes were locked on their video screens, or their fans. Victorious gamers all seem to have learned to mimic the most numbing clichés of actual athletes: "We were confident going in … We knew it was going to be a tough game" and so on. Team 3D's Josh "Dominator" Sievers, for instance, when asked to express his emotions after winning the final, expounded in slightly greater detail: "I guess anyone who ever played a sport in high school and won a big competition knows how it feels."

Gamers would know how it feels, too, if they ever pulled away from the screen and had the experience.

Mr. Ackman is a writer for Breakingviews, a financial news and opinion Web site that will have a regular column in the Journal's new Weekend Edition.

URL for this article: http://online.wsj.com/article/0,,SB112655995000738479,00.html?mod=at%5Fleisure%5Fmain%5Freviews%5Fdays%5Fonly

See also: Ackman on Sports

Praising the Pitchman

2005-09-12T06:11:00.000-07:00

From The Sunday New York Post (9/11/05)

HAWKER REDEEMED
By DAN ACKMAN

Victor Grillo Jr. has long been the red-headed stepchild of the advertising world.

Rarely singled out for praise, Grillo seemed to only get attention when folks mocked him for his informercials.

After all, it was Grillo who brought the Ginsu 2000 knife set and his Liquid Leather wonder product to late-night television.

Go ahead, raise your hand if you, too, gave Grillo's products a laugh.

Lately, though, it's Grillo and his brethren in the 1-800 advertising business that have been doing the laughing — all the way to the bank.

That's because after years of shunning the direct-response genre of advertising, the Fortune 500 crowd is moving in.

And Grillo, among the pioneers of the infomercial business, has been there to greet them, ringing up business for his Advanced Results Marketing company while still pushing his own products on the side, like the Everlife Flashlight — no batteries or bulbs!

Having several Fortune 500 companies as clients has brought Grillo not only more success, but a feeling of redemption. If Madison Avenue once considered him a cockroach, as Grillo is fond of saying, "At least now we're a big cockroach."

Feeding the growth of direct-response advertising is the ability of companies to directly gauge the impact of a commercial.

The basic idea is that rather than vague ideas such as brand-building, the advertiser knows precisely whether his ads are generating a return.

Lately, traditional advertisers such as BMW, Procter & Gamble and pharmaceutical giants including Pfizer have been spending at least part of their ad budgets on direct response. David McCracken, a spokesman for P&G, says the change in the ad mix is part of a renewed emphasis on return on investment. Grillo's ARM, based in Marlboro, Mass., now counts among its clients The Holmes Group, Conair and a half-dozen Las Vegas casinos.

Grillo, 39, is not the biggest as-seen-on-TV seller. Guthy-Renker, which claims more than $1 billion in annual sales, likely holds that title. And he is not the biggest direct-response ad agency either. But he is rare in that he does both. He is also unique as an on-air pitchman for his own ad agency, hawking ARM's services on morning cable news shows.

Grillo says his Everlife Flashlight is the No. 1 direct-response product on TV. He exaggerates, but just a little, as Jordan-Whitney, a company that ranks infomercial buys, says the flashlight has not top-ranked, but has been consistently in the top three in recent weeks. The flashlight will also be available in major retail chains this Christmas season.

Direct-response advertising, whether in long-form or full 30-minute infomericials, differs from traditional advertising. All ads have a "call to action," meaning a plea to call an 800 number, whether to buy a product or simply request more information.

Call-to-action advertising is popular because it is charged a lower fee than normal TV advertising. However, it is not guaranteed a time slot and is often banished to late-night or overnight periods.

ARM has recently merged with a Results Media, a traditional media-buying company based in Phoenix, in a $40 million deal. The combined company projects $200 in media buys this year, along with about $60 million in product sales.

Though he still relishes his Triple Edge Wiper Blades-hawking past, Grillo admits, somewhat ruefully, "We're getting to be respected."

See also my article in Forbes: Near-Perfect Pitch

The house Katrina built

2005-09-12T06:03:00.000-07:00

This is from my column BreakingViews

Hurricane Katrina: The justly-maligned US government's Federal
Emergency Management Agency (Fema) has just contracted with
five major corporations supposedly to speed emergency housing
relief to Gulf Coast families displaced by Hurricane Katrina.
The oddity is that there is already an abundance of unoccupied
housing in the US, not least in the areas affected by Katrina.

What's the explanation? Well, at one level, one might just
shrug one's shoulders. Perhaps it should come as no surprise
that the hapless Fema, now a unit of the vast bureaucracy that
has become the Department of Homeland Security, seems unaware
of the situation on the ground. At another level, one could
view this as another example of excessive government largesse
in the face of disaster - perhaps to quell disastrous
criticism of its initial poor response.

But it is also worth questioning Fema's motives for doling out
lucractive contracts. After all, the five contractors -
Bechtel, Fluor, Shaw Group, CH2M Hill and Dewberry
Technologies - may all be expert in massive engineering
projects. But none is known as a housebuilder. Curious minds
will also note that Bechtel and Fluor happen to be actively
engaged in Iraq.

Luckily for the US, there is no shortage of home builders.
Indeed, new home building has been proceeding at a torrid rate
for the past five years. And most of the building has been in
the south and west, in areas where Katrina's victims lived and
have now dispersed.

One consequence of all that construction, and of low mortgage
rates, is that the vacancy rate for rental housing is at or
near record levels. The rate for the US as a whole is just
under 10%, according to the Census Bureau. But it's higher -
at 12% - in the south. While Louisiana's rental vacancy rate
is on the lower side for the region, nearby Alabama, Texas and
Georgia are all among the highest nationally. Vacancy rates
for lower-priced houses are even higher than for more
expensive homes.

As there are 34m rental units in the US, that means that more
than 3m are empty. With thousands of refugees now housed in
sports stadiums and convention halls, it would seem there is
little time to await the construction of even temporary
housing. If the federal government could provide just a little
grease in terms of help relocating and some rental subsidies,
the problem of housing Katrina's refugees seems quite
solvable. Bechtel's expensive help is not required.

See also: Fresh Pricks in the Housing Bubble

Zero Tolerance... Zero Intelligence

2005-09-01T12:10:00.000-07:00

President Bush has said many inane things on the campaign trail and during his presidency (for him, bascally the same). But some of his remarks in reaction to New Orleans have to be among the worst.

First, Mr Bush flew over New Orleans and parts of Mississippi's in Air Force One after famously "cutting short" his 33-day vacation by all of two days. Turning to his aides, he said: "It's totally wiped out. ... It's devastating, it's got to be doubly devastating on the ground."

This remark presumes that his aides had not been watching television, or worse, no one told the President about what had happened until he took off. What, one wonders, were his aides supposed to say back.

The next day Mr. Bush told Good Morning America: "I think there ought to be zero tolerance of people breaking the law during an emergency such as this, whether it be looting, price gouging at the gasoline pump, or taking advantage of charitable giving, or insurance fraud."

Say what?!? Was anyone thinking about insurance fraud? Of course, the President was talking about looters. Zero tolerance is always a dumb and empty phrase. But in this context, it proves a true moron. Should cops and judges really have zero tolerance for someone stealing food or diapers, or even if they are part of mob stealing TVs. Certainly if there was ever a time for some degree of tolerance, this is it.

Loosey Goosey Loans

2005-08-24T05:10:00.000-07:00

One of the less explored angles of the recent housing booms has been the decline in lending standards. Loan officers in California and others familiar with the situation there tell me that they routinely give interest only loans and loans based on stated incomes that banks do not verify at all. See California's Home Boom Looks Like A Bubble But the question is why. Don't the banks want to make sure they are repaid?

Amazingly, the answer is they may not care. A article in today's Wall Street Journal puts a number on the selling of loans. It says: "U.S. lenders will make about $2.8 trillion in home-mortgage loans this year, according to the Mortgage Bankers Association. The MBA estimates that about 80% of these loans will end up in mortgage-backed securities. Mortgage-backed securities outstanding at the end of the first quarter totaled $4.61 trillion, up 61% since the end of 2000. In the same period, total Treasury securities outstanding grew 35% to $4.54 trillion."

Once the bank sells the loan, repayment is not a big issue. From the borrower's pint of view, many assume that if payments get difficult, they will simply re-sell at a profit. It's all reminiscent of the Tom Lehrer line about Verner Von Braun: "Once the bombs go up who cares where they come down? That's not my department." See also: Fresh Pricks In Housing Bubble.

Iranian Pride Project

2005-08-23T05:03:00.000-07:00

To me the idea of invading Iraq was never nearly as bad as the justification for it. There was merit in deposing Saddam Hussein: First, he was murderous to his own people; Second, he had a tendency to invade his neighbors. But no vague or waffling justification for war can ever be valid. War is something one does when one is 100% certuan, not 51%. And lying about war and peace is a cardinal offense for any leader:

Bush and Cheney told the Congress and told the world that that Iraq had WMDs. The mistake may be forgivable, but acting on it is not. It was never forgivable to play bait and switch over matters of war and piece.

This morning's Washington Post has a similar story. It says: "Traces of bomb-grade uranium found two years ago in Iran came from contaminated Pakistani equipment and are not evidence of a clandestine nuclear weapons program," according to a group of U.S. government experts and other international scientists.

This is amazing to me (not that I have followed the Iran nukes story all that closely. But the idea that one can assert that a country has nuclear weapons or is trying to get them without being certain of the charge seems very dangerous.

The WP report quotes a "senior official" who says, "'The biggest smoking gun that everyone was waving is now eliminated with these conclusions.'"

Their conclusion is that Iran's long contention that the uranium traces were the result of contaminated equipment bought years ago from Pakistan is correct. Still, the Bush administration had pointed to the material as evidence that Iran was making bomb-grade ingredients.

That's stunning news in particular and worrisome in general that such weighty matters can be babdied about without extremely solid proof.

The Nation Comes to J.C.

2005-08-16T03:41:00.000-07:00

Here is my piece from the New York Post on real estate in my adopted hometown of Jersey City.

City Dwellers

The New York Post

By Dan Ackman

August 14, 2005

The land rush under way in Jersey City is attracting some surprise players — the nation's largest homebuilders, much more accustomed to earning their profits in the greener pastures of suburbia.

But as large, profitable tracts on less crowded land are harder to come by, Pulte Homes, Toll Brothers and Centex have moved their equipment into urban landscapes for the first time.

They join a fourth builder, Hovnanian Enterprises, which had already made the move.

The new developments are part of what the companies call "urban infill" — a return to older cities.

Nowhere is the emerging business model for the publicly traded homebuilders more evident than just across the Hudson, in Jersey City and neighboring Hoboken.

Pulte Homes, based in Bloomfield Hills, Mich., and Hovnanian, based in Red Bank, N.J., both have projects in Jersey City's tony Paulus Hook section.

Dallas-based Centex is building on the west side of town overlooking Newark Bay, where Hovnanian is adding a new phase to an existing project. Toll Brothers, based in Horsham, Pa., just broke ground on condos near the Holland Tunnel exit on the Hoboken border, adding to a pair of developments in Hoboken itself.

Two causes are sharpening the companies' focus more on urban locales.

First, there is increasing demand for homes that afford an urban lifestyle that is entirely dependent on the car.

Second, suburban communities are starting to rebel at perceived overdevelopment by implementing tighter building and zoning restrictions. To maintain their heady growth rate, the companies are being forced to come back to land that has long been developed and create new types of homes attractive to couples and young families as well as empty-nesters.

The latest arrival in Jersey City is Centex, which is building 120 town homes and loft-style apartments at Westside Station, the first of which are scheduled for delivery late this year.

Robert Forniadis, a senior vice president and director of land acquisition, says the proximity to Manhattan and the desire of buyers for more traditional communities are the reasons Centex has come to Jersey City.

While Centex and others have long been in the business of building planned developments, Forniadis concedes, "We call them neighborhoods, but they're really not." Jersey City, while less dense than the five boroughs, is closer to the real thing. More of their customers want shorter commutes and homes closer to entertainment, "not McMansions where you have to drive to get to the mailbox."

At the opposite end of town, Toll Brothers is building a 230-unit condominium called 700 Grove. While prices in Jersey City and Hoboken are still not at Manhattan — or even north Brooklyn — levels, Benjamin Jogodnik, a Toll Brothers vice president, says prices on their existing Hoboken projects have gone up by about 40 percent in two years.

Hovnanian, whose headquarters are just an hour's drive south, started its first Jersey City project called Society Hill in 1985. But it has ramped up its interest in the city recently. Not only is it adding 380 town homes in a development called Droyers Point, but it is building town homes and one- and two-bedroom condos in Paulus Hook, a historic section across the river from Manhattan's financial district.

Doug Fenischel, a spokesman for Hovnanian, says the regulatory process in suburban areas has made building there more difficult. But building in urban areas has become easier, at least in the sense that new technology has made land cleanup more feasible. The combination of factors has made returning to land long occupied often by factories, or even waste dumps, more attractive for builders and home-buyers alike.

Fenischel allows that no more than 5 percent of Hovnanian's business is urban. "But we expect that to increase dramatically."

Bubble Bubble

2005-08-08T06:56:00.000-07:00

Paul Krugman has a good piece on the housing bubble today:

That Hissing Sound
By PAUL KRUGMAN
This is the way the bubble ends: not with a pop, but with a hiss.

Housing prices move much more slowly than stock prices. There are no Black Mondays, when prices fall 23 percent in a day. In fact, prices often keep rising for a while even after a housing boom goes bust.

So the news that the U.S. housing bubble is over won't come in the form of plunging prices; it will come in the form of falling sales and rising inventory, as sellers try to get prices that buyers are no longer willing to pay. And the process may already have started....

I, however, was writing the same thing back in April (not that I was the only one):

Our Schizophrenic Housing Market
Dan Ackman, 04.27.05, 11:16 AM ET

Yesterday, the news that new U.S. home sales were up 12.2% in March to record levels caused some confusion, as most economists had expected a slowdown amid a slight jump in mortgage rates and a decline in housing starts the same month.

Sales climbed to an all-time high, a seasonally adjusted annual rate of 1.43 million units--bettering the old mark of 1.3 million units set last October, the U.S. Commerce Department reported. Prices were up sharply, too. The gains were in all regions but were most pronounced in the South, where new-home sales jumped 18.6%. In the Northeast, the rise was just 1.2%.

This disparity highlights the schizophrenia in the U.S. housing market, both in terms of price and construction. Thus the answer to the debate about the housing bubble may be, "It depends on where you are."...

Misundertrusted

2005-08-06T05:27:00.000-07:00

There is a good piece by Jack Shafer in Slate today on the phoniness of surveys that purport to show massive mistrust of the media. Why I Don't Trust Readers

Shafer makes the point that expressing mistrust of media is a largely political statement. To me, it's like saying "I'm counterculture," an some Republican suburbanites like to think of themselves that way, oddly enough.

I have long distrusted such surveys myself. What does it mean that 54% of the people believe what they read in the newspaper. Does that mean when the Daily News says the Mets beat the Cubs 5-3, half the folks think the Cubs, in fact, beat the Mets 4-2?

I wrote about a similiar survey a while back: For 53% Reliable Information, Click Here:

NEW YORK - According to a new survey, 52.8% of Internet users believe that most or all of the information online is "reliable and accurate."

Other highlights from the report issued by the UCLA Center for Communication Policy: About 61% find the Net "very" or "extremely" important as an information source, and Internet use is cutting into television time with Internet users watching about 4.8 fewer hours of television each week than nonusers. Among Internet users, 60.5% consider it to be a "very" or "extremely" important source of information. Just 25% consider it to be an important source of entertainment. The percentage of Americans who use the Internet actually fell, the survey says, from 72.3% to 71.1%, but the average time spent online was up substantially, to 11.1 hours per week.

That people are gravitating from the television to the Internet, especially for information, is, of course, extremely good news--at least for us. But while they are coming more, they are believing less: Last year the UCLA survey indicated that 58% of Internet users believed that most of what they read online was "reliable and accurate."

Return of the yellow peril (CNOOC)

2005-08-03T05:27:00.000-07:00

As the CNOOC/Unocal drama looks over, here is a reminder of some of what i wrote for Forbes.com.

Top Of The News Yellow Peril Seeks Black Gold Dan Ackman, 06.24.05, 9:17 AM ET

OK, China, here's the deal:

You send us billions of dollars' worth of clothes and steel and fish and computers and things. Make it, say, $200 billion worth this year, and a little more each year after that. Wait, make it a lot more. We'll send you maybe $40 billion in plastics and computer chips and airplanes and all that. The rest we'll make up with dollars.

What should you do with all those dollars?

Heck, I don't know...go to Wal-Mart.

Right, Wal-Mart's got the stuff you sent us in the first place.... Right, bad idea....

OK, I got it: buy Treasury bills. We got one heck of a deficit problem here, and you can't really expect us to shoulder the whole load can you? What's that, you still have some dollars left? We can let you have some more of those T-bills. They pay 4% interest. Now that's free money, that's what that is.

What? You say you want oil....

Our oil! You want to buy a whole oil company?...

One of our oil companies?...

One of our Texas oil companies....

California, OK, I see....

That's a little better. But, wait a minute, China.... Just slow down there, fella! We gotta think about this....

I'm gonna put you on hold....

You sure you don't want more T-bills?...

OK, we'll get back to you. OK, China, I did some checking with the boys back at the home office. And I gotta be honest, this oil scheme of yours--they don't like it.
For MORE: http://www.forbes.com/home_europe/energy/2005/06/24/unocal-cnooc-chevron-cx_da_0624topnews.html

More on CNOOC:

Unocal's Bid For Asia June 27, 2005 CNOOC is not buying a U.S. company as much as it is buying Asian oil and gas assets owned by Americans.

CNOOC: Wave Of Future; Blast From Past June 23, 2005 Is China now about to put its export earnings to work buying U.S. assets, just as Japan did in the 1980s?

The First Justice Roberts

2005-08-02T04:33:00.000-07:00

President Bush’s nomination of John G. Roberts Jr. to the Supreme Court comes, as it happens, on the 50th anniversary of the death of the Owen J. Roberts, a Supreme Court justice who is almost completely forgotten. The story of Roberts I illustrates the difficulty of predicting a nominee’s tendencies, a fairly well-worn point. But it also shows that few Supreme Court justices prove as important as we believe they’ll be at the time of nomination.

The first Justice Roberts had been a corporate lawyer in Philadelphia who gained some fame as a special prosecutor following the Teapot Dome scandals. President Hoover settled on him as a safe choice after his first choice, John L. Parker, was voted down by a Senate that was more heavily Republican than today’s senate. (Mr. Parker had made some racist remarks on the bench.)

The first big case after Justice Roberts’ confirmation was Near v. Minnesota, which involved a state law that allowed the state to enjoin publication of “malicious, scandalous and defamatory newspaper [or] magazine” articles. The case sounds like a no-brainer, and the Supreme Court did strike down the law. But the vote was 5-to-4, with Justice Roberts siding with Chief Justice Charles Evans Hughes, also a Hoover-appointee. If the term “swing-vote” had been invented yet, Justice Roberts would have been deemed the swinger.

Justice Roberts did join the majority in the 1935 Schechter Poultry case, in which the Supreme Court held invalid a federal law that empowered the president to enact labor codes regulating the wages, hours and minimum wages of industrial employees. But the vote in that case was 9-0, and it did not prevent such regulations per se, but said Congress could not delegate regulatory power to the executive without some reasonably clear guidelines. Congress soon reworked the legislation in a constitutionally acceptable manner.

In 1937, Justice Roberts joined the majority in N.L.R.B. v. Jones & Laughlin Steel Corp., a case where the court upheld the National Labor Relations Act. He was again the swing vote in the sense that he was one of five necessary to uphold the legislation. He joined another 5-4 majority in upholding validity of the federal payroll tax imposed as part of the Social Security Act (Steward Machine Company v. Davis). He sided again with the chief justice in another 5-4 vote upholding the validity of state minimum wage laws (West Coast Hotel Co. v. Parrish).

Justice Robert’s proudest moment on the high court may have been in dissent. If Brown v. Board of Education is the case lawyers and law students use to cast the Supreme Court in a heroic light, Korematsu v. United States is its polar opposite. In that case, the justices greenlighted the placing of Japanese-Americans, U.S. citizens, in internment camps. Of course, the decision came in time of a world war. But three justices voted ‘no,’ and Justice Roberts was one of the three.

No one remembers Justice Roberts today. He was not a leader on the court; his dissents don’t ring out. No one has written his biography. There is a school district in Pennsylvania named after him, but that’s about it.

Still, he serves as a reminder. First, as is often remarked, Supreme Court justices are often surprises. And second, in the long run, justices rarely prove as consequential as they first seem.

Roberts and Roe and Rove

2005-08-02T04:09:00.000-07:00

With all the hue and cry about Judge Roberts and his nomination, I think there are still a few points yet to be made.

First, despite what they would have their own Christian right supporters believe, the last thing Bush and Rove really want is for the Supreme Court to overturn Roe v. Wade. The Republicans have been gaining support and money based on their supposed distate for Roe for decades. if the decision is actually overturned, they would be faced with a real governing responsibility about what to do. If states started outlawing abortion, there would be a groundswell among the now understandably complacent pro-choice majority. The political force would switch sides. In other words, the Republicans would rather have the issue to campaign on than the actual victory.

Second, Roberts is above all a law man. He is, by all appearances, not an idealogue. He believes in the rule of law. And a belief in the rule of law translates into a belief in precedent. This belief is all over his jurisprudence. Here, for instance, is something from Ramaprakash v. F.A.A.,
displayTruncatedTitle("346 F.3d 1121") 346 F.3d 1121, 1124 (D.C. Cir. 2003), Roberts' very first decision on the D.C. Circuit: “[A]gency action is arbitrary and capricious if it departs from agency precedent without explanation. Agencies are free to change course as their expertise and experience may suggest or require, but when they do so they must provide a ‘reasoned analysis indicating that prior policies and standards are being deliberately changed, not casually ignored.’” (citations omitted).

Third, Roberts is a Bush I man. George H.W. Bush tried to get him a seat on the D.C. Circuit, but could not get him confirmed. Bush I appointed Clarence Thomas, but he also appointed David Souter. Roberts is too smart to be Thomas. I think he'll more likely be like Souter.