April 24, 2005

How We Hurt Each Other

I just went on a blind date.  It was mildly bad insofar as I was relatively sure he wasn't attracted to me from the start [clearly something wrong with him  :) ]and while we were at dinner he saw someone he knew and talked to them for 20 minutes.  I asked how long he knew the guy and found that they had only met twice before.  When I dropped him off at home, he said that he had a good time but that we didn't click for whatever reason.  I totally agreed, but it made me think a bit. 

Quite often after an uncomfortable date like that, one or both of the people would make suggestions about seeing each other again later even though it was clear (to at least one of them) that it wasn't ever going to work out.  Sometimes this is interpreted for the polite noise that it is meant to be, but other times--by less discerning people (including I hate to admit myself at times) this is interpreted incorrectly as being encouraging.  This then follows with either unreturned phone calls, or worse returned phone calls with difficult to interpret polite noises.  Sometimes one party (and I've been on both sides of this) just can't make it clear that this isn't going to work out by hinting, but they also find it difficult to say something straight out.

I suspect we do this because we don't want to hurt the other person's feelings.  This is interesting because in fact the hurt feelings are almost always worse after days or weeks of what retrospectively gets identified as "leading me on".  Tell me you aren't interested up front and my feelings will get hurt a bit and I'll get over it an hour later.  Tell me you aren't interested after days of me thinking something is going to work out and I'm defintely going to be more hurt. 

There is a balance to be had of course.  You don't need to be brutal.  But while I thought the talking to a non-friend for an extended period of time during dinner was rude, I have to give props to the guy for being straight-forward in a non-obnoxious way at the end. 

Are there other common ways that we try to spare people's feelings and end up making things worse in the long run? 

Posted by Sebastian Holsclaw at 10:50 PM | Comments (404) | TrackBack

April 22, 2005

More on Fraud

Upon rereading it, I think I wasn't very clear in my last post.  I can't comment directly on the AIG case because it is so cryptic, but I want make a more specific comment on status crimes.  I am uncomfortable with the current state of financial/tax/economic sphere crimes.  I understand the difficulty being addressed--intent is hard to prove so if you make things that are likely to be associated with fraud crimes, you get to punish fraud without having to prove that the intent to deceive.  This works fine so long as everyone can reasonably be expected to know or understand what you can do to get into trouble. 

The problem is that things have gotten ridiculously complicated, with the rules changing from day to day.  Like Will at Crescat Sententia says:  "I hate doing my taxes-- not because the counting, figuring, or filing bothers me (on the contrary), but because the whole process fills me with sheer terror that there is some unknown rule or unclear definition (contained nowhere on the form) that will subject to me criminal and financial liability."  This isn't just true in tax, but in many areas of corporate life.  The really big corporations can usually fend for themselves, but small concerns are rightfully worried that they can innocently run afoul of some crazy regulation or another. 

I'm not sure there is much to be done about it.  Maybe this is just the kind of silly thing that I worry about. 

Posted by Sebastian Holsclaw at 12:02 AM | Comments (376) | TrackBack

April 21, 2005

Fraud and the Rule of Law

This opinionjournal piece reminds me of one of the classic problems of law:

Although Mr. Greenberg was Chief Executive magazine's CEO of the Year in 2003, we are not defending him. Rather we want to ask whether CEOs have a right to due process. Reflecting their dismay at the high-handed conduct of King George, the Founding Fathers created a judicial system with a stringent set of procedural safeguards to protect against overzealous or arbitrary prosecution. Yet in the atmosphere that Mr. Spitzer has helped create, the presumption is that CEOs are guilty--if Eliot Spitzer says they're guilty.

In dispute in the AIG case are highly complex transactions that may have reduced the company's shareholder equity of $82.9 billion by as much as 2%. It's not yet known if the total losses will reach that level, nor if they were material to AIG as a whole. After Mr. Greenberg's departure, the board ran up the white flag to Attorney General Spitzer and declared the transactions "improper."

Were they? One proper way to resolve this would be to create a policy framework with clear rules, which does not currently exist. Another way would have been for the Securities and Exchange Commission to negotiate an earnings restatement with AIG.

But Mr. Spitzer reportedly threatened a criminal indictment, which in effect would have put AIG out of business. Then he went on television to pronounce that the AIG transactions were "wrong" and "illegal," which some legal scholars say is unusual. It's not yet clear what the charges are. Nor has Mr. Spitzer heard Mr. Greenberg's side of the story.

So the New York attorney general both charges and convicts in the court of public opinion. This pattern of overcriminalization is of deep concern to many chief executives. The proper process is for judges or juries to convict defendants only after convincing themselves that a charge has been proven "beyond a reasonable doubt." Too much publicity can be deemed prejudicial.

I'm not qualified to figure out if what AIG did was either wrong or illegal.  It would take me months of research just to get the knowledge base to even approach the issue.  But that fact highlights the problem I want to talk about. 

A good "rule of law" system is fairly predictable.  You can limit your behaviour to things that are legal because the line between legal and illegal is knowable.  Fraud was an intent crime.  In order to prove it, you had to show that the accused took certain actions with the intent to deceive.  This was often done by showing that the accused lied about something important to the deal.  As life became more complicated, legislators decided to impute intent on certain types of transactions where intent to deceive was difficult to prove.  In those cases fraud became a status crime.  If you did certain things you were deemed a fraud no matter what your intention.  In the beginning these transactions were well defined and few.  By now, they are ill-defined and unapproachably numerous.  Like tax law, there are thousands of pit-falls and it is almost impossible to know if you are about to fall into one.  I understand the legislative desire to define certain things as fraud without requiring a prosecutor to prove intent.  It is perfectly fair to do so when a reasonable person or business can hope to know exactly what these 'certain things' are.  But I am very uneasy by the current state of things.

Once again, I offer no opinion whatsoever about whether or not AIG did anything wrong in this specific case.  I couldn't possibly know. 

Posted by Sebastian Holsclaw at 07:23 AM | Comments (415) | TrackBack

April 18, 2005

What Was He Thinking?

This weekend I went to wedding.  It can be a bit odd going to a wedding where you only know the bride (she won't be talking to you much) and a few other people who have been seated at other tables.  But that isn't what I wanted to talk about. 

During the ceremony, the minister did something that I felt was a bit odd.  He spent about five minutes talking about how common divorce is, how we don't really expect marriages to last, how people often grow apart, and how now that we live longer lives it is much more difficult for people to maintain lifelong commitments to each other.  All of which are perfectly interesting topics, but I'm not even sure if I would consider them appropriate for the wedding reception.  I'm totally sure that it doesn't make sense for the ceremony.  If the minister wants to talk about such things during the pre-wedding counseling he should have at it.  But at the ceremony itself?

A wedding is a supremely hopeful act.  It may be unrealistically hopeful in some cases.  But there is a balance between being clear-eyed about the challenges ahead, and turning the challenges into a self-fullfilling prophecy of failure.  He eventually made his way back to talking about how my friend and her husband had somewhat (he even used that word) better chances than most because they seemed well suited for each other and they were both lawyers (which was a positive aspect of the union?). 

Am I wrong in thinking that was a little weird? 

Posted by Sebastian Holsclaw at 12:11 AM | Comments (583) | TrackBack

April 15, 2005

This Is How We Do It

Apparently the Connecticut legislature has passed a law to authorize civil unions.  This is the first legislature to have done so without a court judgment.  This is a very positive step in gay rights in that it represents one of the first (of hopefully many) legislative wins. 

Posted by Sebastian Holsclaw at 12:51 AM | Comments (512) | TrackBack

April 13, 2005

Health Care Thought Experiment

I see that health care questions are making the rounds again on the internet.  At Crooked Timber, Ted Barlow posts on the topic and initially makes what I think is a characteristic error on the topic:  he talks about the government paying for health care as if it repeals the problems of limited supply and enormous demand.  In the comments he writes:  "Very few would seriously argue that a pauper has the right to expensive shoes, televisions, or airline tickets. But thereís a general agreement that people who canít afford health care ought to get it anyway. I donít see any way to reconcile that philosophy (which I agree with) with a policy that Iíd recognize as deregulation." 

The problem with this is that people always see whatever they need as health care that absolutely must be paid for.  Unfortunately the supply for health care is always going to outstrip the demand because if you need that liver transplant, you personally don't care how expensive it is and even if it is your second liver you are going to think someone ought to pay for it.  It takes a lot of work to become a doctor.  It takes a lot of time and effort.  Few people are going to put the time in if they aren't well compensated.  Medicines are complicated and risky to develop.  They aren't going to get made on the cheap.  New medical devices are complicated and take a lot of effort to design and make.  That isn't going to come cheap either.  The second something new comes along (now matter how expensive) that can help you, you are going to want it no matter the cost.  That fact doesn't go away when the government is paying, in fact it may intensify if you don't have an obvious linkage to the payment.  This is the long way of saying that rationing is going to happen on the basis of price one way or another.  Either we will significantly slow new research by making it not profitable enough to compensate for the huges risks, or expensive things will exist but be inaccessible.  There really isn't a third option.  Which leads me to this proposal found in the comments of the Crooked Timber post (by Nicholas Weininger):

A concrete example, as a thought experiment. Suppose our fantasy ďbasicĒ socialist health care plan decided up front that it would cover only those devices, procedures, and drugs that had been available for at least 20 years. No coverage for the latest and greatest machines or cutting-edge surgery; only the tried and true. No coverage for on-patent drugs, only generics. You want your care paid for by the government? You get a 1985 standard of care (or a 1986 standard next year, etc).

Surely this would be an effective across-the-board cost control measure. Stuff thatís been around 20 years or longer tends to be relatively cheap, and also easy to evaluate for cost-effectiveness since youíve got a lot of data on its use. Itíd address Sebastianís objections about innovation, too: any developer of a new drug or device would have 20 years to sell it on the private market, charging whatever that market would bear, before the government took a price-distorting hand in it.

1. Would such a restriction violate your intuitions about individualsí positive rights to be provided with health care regardless of ability to pay? Why or why not?

2. Do you think the advocates of any realistic US single-payer plan would have a chance in hell of getting the electorate to accept such a restriction?

I would personally change the period to more like 10 years.  The government will fund health care to the state of the art as of ten years ago.  The more modern techniques have to be paid for by you.  In effect, something like this happens already.  Canada has only recently started to use MRIs at a level that was common about 8 years ago in the US.  How does this meet with liberal expectations about health care? 

Posted by Sebastian Holsclaw at 12:37 AM | Comments (547) | TrackBack

April 06, 2005

Explaining, Justifying, Demonizing

I think I have a better handle on what bothers me about Cornyn's comments and similar 'explanations' of suicide bombing against Israel.  In both cases, the speaker pretends to be engaging in an intellectual analysis of a problem.  But the explanation is framed to both blame the victim (often by a pretending that a non-homogenous class like 'Israelis' or 'Judges' is really homogenous) and to partially excuse the perpetrator (hemming and hawing about something being non-laudable but of course somewhat understandable given the difficult and emotionally trying conditions).  In both cases, the speaker attempts to transform an entirely unjustifiable killing into something which supports their only tangentially related agenda. 

The occupation of the West Bank does not offer a good explanation for blowing up oneself and a number of coffee drinkers in a town square.  Allegedly activist actions by some judge somewhere does not explain in any useful or moral way frustration against judges that might lead to killing them.  Using the deaths of these people to demonize a class of people that are somewhat similar to them is very ugly and dishonest.  It isn't explaining a problem.  It is using the dressing of explaining a problem to demonize a class of people by blaming the victim and partially excusing the perpetrator. 

Posted by Sebastian Holsclaw at 12:34 AM | Comments (505) | TrackBack

April 05, 2005

Police Your Own III

Stupid, stupid, stupid.  If you think that the existence of the Palestinian/Israeli conflict doesn't provide a good excuse for intentionally blowing up coffee shops don't even think of nodding your head to this bit of idiocy:

Sen. John Cornyn said yesterday that recent examples of courthouse violence may be linked to public anger over judges who make politically charged decisions without being held accountable.

In a Senate floor speech in which he sharply criticized a recent Supreme Court ruling on the death penalty, Cornyn (R-Tex.) -- a former Texas Supreme Court justice and member of the Judiciary Committee -- said Americans are growing increasingly frustrated by what he describes as activist jurists.

"It causes a lot of people, including me, great distress to see judges use the authority that they have been given to make raw political or ideological decisions," he said. Sometimes, he said, "the Supreme Court has taken on this role as a policymaker rather than an enforcer of political decisions made by elected representatives of the people."

Cornyn continued: "I don't know if there is a cause-and-effect connection, but we have seen some recent episodes of courthouse violence in this country. . . . And I wonder whether there may be some connection between the perception in some quarters, on some occasions, where judges are making political decisions yet are unaccountable to the public, that it builds up and builds up and builds up to the point where some people engage in, engage in violence. Certainly without any justification, but a concern that I have."

Cornyn, who spoke in a nearly empty chamber, did not specify cases of violence against judges. Two fatal episodes made headlines this year, although authorities said the motives appeared to be personal, not political. In Chicago, a man fatally shot the husband and mother of a federal judge who had ruled against him in a medical malpractice suit. And in Atlanta last month, a man broke away from a deputy and fatally shot four people, including the judge presiding over his rape trial.

The most charitable interpretation is that Cornyn stumbles into apparent excuse-making while try to make pseudo-neutral comments about cause and effect.  But that really doesn't fly because neither case involving recent violence against judges really invoves a political difficulty.  This is exactly the kind of explanation as excuse that I hate in the union violence or Palestinian conflict contexts.  Quit it. 

Posted by Sebastian Holsclaw at 12:04 AM | Comments (313) | TrackBack

April 04, 2005

Reform, In Theory and Practice

I don't know if it is synchronicity or just my fevered imagination, but it seems as if two disparate posts among the many I read on the blogosphere often end up revealing a deeper truth than either can do individually.  Jane Galt has an interesting post with the amusing title of "A really, really, really long post about gay marriage that does not, in the end, support one side or the other".  It purports to be a post about gay marriage, but its best parts are an excellent explanation of the conservative interest in taking reforms slowly and carefully:

Social conservatives of a more moderate stripe are essentially saying that marriage is an ancient institution, which has been carefully selected for throughout human history. It is a bedrock of our society; if it is destroyed, we will all be much worse off. (See what happened to the inner cities between 1960 and 1990 if you do not believe this.) For some reason, marriage always and everywhere, in every culture we know about, is between a man and a woman; this seems to be an important feature of the institution. We should not go mucking around and changing this extremely important institution, because if we make a bad change, the institution will fall apart.

A very common response to this is essentially to mock this as ridiculous. "Why on earth would it make any difference to me whether gay people are getting married? Why would that change my behavior as a heterosexual"

To which social conservatives reply that institutions have a number of complex ways in which they fulfill their roles, and one of the very important ways in which the institution of marriage perpetuates itself is by creating a romantic vision of oneself in marriage that is intrinsically tied into expressing one's masculinity or femininity in relation to a person of the opposite sex; stepping into an explicitly gendered role. This may not be true of every single marriage, and indeed undoubtedly it is untrue in some cases. But it is true of the culture-wide institution. By changing the explicitly gendered nature of marriage we might be accidentally cutting away something that turns out to be a crucial underpinning.

To which, again, the other side replies "That's ridiculous! I would never change my willingness to get married based on whether or not gay people were getting married!"

Now, economists hear this sort of argument all the time. "That's ridiculous! I would never start working fewer hours because my taxes went up!" This ignores the fact that you may not be the marginal case. The marginal case may be some consultant who just can't justify sacrificing valuable leisure for a new project when he's only making 60 cents on the dollar. The result will nonetheless be the same: less economic activity. Similarly, you--highly educated, firmly socialised, upper middle class you--may not be the marginal marriage candidate; it may be some high school dropout in Tuscaloosa. That doesn't mean that the institution of marriage won't be weakened in America just the same.

This should not be taken as an endorsement of the idea that gay marriage will weaken the current institution. I can tell a plausible story where it does; I can tell a plausible story where it doesn't. I have no idea which one is true. That is why I have no opinion on gay marriage, and am not planning to develop one. Marriage is a big institution; too big for me to feel I have a successful handle on it.

However, I am bothered by this specific argument, which I have heard over and over from the people I know who favor gay marriage laws. I mean, literally over and over; when they get into arguments, they just repeat it, again and again. "I will get married even if marriage is expanded to include gay people; I cannot imagine anyone up and deciding not to get married because gay people are getting married; therefore, the whole idea is ridiculous and bigoted."

They may well be right. Nonetheless, libertarians should know better. The limits of your imagination are not the limits of reality. Every government programme that libertarians have argued against has been defended at its inception with exactly this argument.

She then discusses Chesterton's classic caution about reform:

(Now, I am not arguing in favor of stigmatising unwed mothers the way the Victorians did. I'm just pointing out that the stigma did not exist merely, as many mid-century reformers seem to have believed, because of some dark Freudian excesses on the part of our ancestors.)

But all the reformers saw was the terrible pain--and it was terrible--inflicted on unwed mothers. They saw the terrible unfairness--and it was terribly unfair--of punishing the mother, and not the father. They saw the inherent injustice--and need I add, it was indeed unjust--of treating American citizens differently because of their marital status.

But as G.K. Chesterton points out, people who don't see the use of a social institution are the last people who should be allowed to reform it:

In the matter of reforming things, as distinct from deforming them, there is one plain and simple principle; a principle which will probably be called a paradox. There exists in such a case a certain institution or law; let us say, for the sake of simplicity, a fence or gate erected across a road. The more modern type of reformer goes gaily up to it and says, "I don't see the use of this; let us clear it away." To which the more intelligent type of reformer will do well to answer: "If you don't see the use of it, I certainly won't let you clear it away. Go away and think. Then, when you can come back and tell me that you do see the use of it, I may allow you to destroy it."

This paradox rests on the most elementary common sense. The gate or fence did not grow there. It was not set up by somnambulists who built it in their sleep. It is highly improbable that it was put there by escaped lunatics who were for some reason loose in the street. Some person had some reason for thinking it would be a good thing for somebody. And until we know what the reason was, we really cannot judge whether the reason was reasonable. It is extremely probable that we have overlooked some whole aspect of the question, if something set up by human beings like ourselves seems to be entirely meaningless and mysterious. There are reformers who get over this difficulty by assuming that all their fathers were fools; but if that be so, we can only say that folly appears to be a hereditary disease. But the truth is that nobody has any business to destroy a social institution until he has really seen it as an historical institution. If he knows how it arose, and what purposes it was supposed to serve, he may really be able to say that they were bad purposes, that they have since become bad purposes, or that they are purposes which are no longer served. But if he simply stares at the thing as a senseless monstrosity that has somehow sprung up in his path, it is he and not the traditionalist who is suffering from an illusion.

Now, of course, this can turn into a sort of precautionary principle that prevents reform from ever happening. That would be bad; all sorts of things need changing all the time, because society and our environment change. But as a matter of principle, it is probably a bad idea to let someone go mucking around with social arrangements, such as the way we treat unwed parenthood, if their idea about that institution is that "it just growed". You don't have to be a rock-ribbed conservative to recognise that there is something of an evolutionary process in society: institutional features are not necessarily the best possible arrangement, but they have been selected for a certain amount of fitness.

I am generally very receptive to this argument.  But I always feel like there is something missing from it. 

Minutes after reading Jane Galt's post, I read this post by Henry Farrell at Crooked Timber.  Its general argument (especially as expanded by Henry in the comments) is that no matter how plausible the Bush administration's proposal to bring more transparency to union finances by allowing union members to find out where the political contributions are going sounds, they should be rejected because Bush doesn't have the best interests of unions in mind.  In the comments I wrote (not explicitly thinking about the Galt post):

This is actually a good point, yet the problem beneath it is somewhat self-contradictory. Modern Democratic administrations have no interest in reforming the huge problems with unions because unions and the Democratic Party feed off of each other for power. It is a fact of democratic government that institutions are most likely to be reformed by people who donít like them, or only when people who like them are forced to reform them by people who donít like them. You admit that reforms are necessary but you donít like the political outcome of these reforms. You are unwilling to engage the detail of these (apparently good) reforms because you donít like the administrationís motives.

I donít care about the motives. This proposal would have been good under Carter or Clinton, it is good now. Workers should not be forced to join a union, forced to have union dues grabbed from their paycheck and also forced to allow the union to support a party they hate. The union-member already is allowed to have the political portion returned to him if he doesnít like it. But without transparency he canít ask for the money back because it is difficult to track the money.

Your complaint seems to be that unions wonít be able to support the Democratic Party as much if its members (many forced to be members by law) find out how much money goes to the Democratic Party.

That just suggests that unions support the Democratic Party far more than their membership would want.

He responded:

Your point about reform is a reasonable one Ė but is also not applicable in this case. The kinds of reform that youíre talking about are only going to happen when either (a) the putative reformers are also those whom we want to benefit from the reform, or (b) the putative reformers have interests that are somehow aligned with those we want to benefit from the reform. In the case at hand, those we would like to benefit from putative reforms are presumably the ordinary union members. Theyíre not the Bush administration. Nor do we have any reason whatsoever to believe that the Bush administrationís interests are aligned with those of ordinary union members.

I think Henry makes a category error confusing 'unions' and 'union members' which he technically distinguishes but does not differentiate.  He also confuses those who claim to be aligned with those who are actually aligned with particular interests.  But when I read that paragraph my problem with the Galt piece suddenly thudded in my head.  I think the bolded section of my comment was correct.  In the specific case of unions, the much needed reforms were never going to take place under Democratic leadership because they benefit too much from the current shady structure.  In the more general case, much needed reforms are likely to be proposed by those who don't like certain institutions.  But, but, but I also believe that Jane Galt and Chesterson were correct.  You don't want someone who doesn't understand why the fence was built to be put in charge of when and how to take it down. 


Someone smarter than me really needs to analyze how we can work this out.  My initial feel would be that people with a conservative temperament ought to be much more attentive to listening to those who want to change things and approach problem solving by not only trying to defend the status quo by showing what could go wrong with change, but also trying to figure out how to make the change work.  People with a more liberal temperament need to spend more time really understanding (in a non-dismissive way) why long-term institutions have existed the way they have so that if they see a change, they can also see how things might get screwed up.  This also would suggest smaller, measurable changes so that we can see the effect of things before they get out of control.  (I say non-dismissible because an all too common understanding of institutions liberals want to reform is along the lines of:  it was evil, it was patriarchy, they didn't really understand things, they were repressed.  Some of that can be true, but it is very likely that you are just not looking hard enough for the reasons.)  Unfortunately, most people don't want to restrain their natural temperament.  So in a democratically styled government this happens by having reforms proposed by people who dislike certain institutions and having the people who like them temper the proposed reforms. 

I guess this is just a cautionary note, no matter what side you are on. 

Posted by Sebastian Holsclaw at 10:59 PM | Comments (537) | TrackBack

Can Affirmative Action Hurt Its Intended Recipients?

The typical critique of affirmative action centers on one of three related ideas:  that the government ought not discriminate on the basis of race, that affirmative action can increase the intensity and frequency of racism by casting suspicion on the accomplishments of its recipients while causing certain racial groups (typically white and Asian groups) to believe they are being damaged, or that affirmative action attacks the problem at entirely the wrong level (the fix the public schools argument).  David Bernstein at The Volokh Conspiracy offers another argument:  that the application of affirmative action (at least in law schools) is actively detrimental to the a large number of its recipients. 

Over at Balkinization, Ian Ayres argues (and I agree) that Richard Sander's work on affirmative action in law schools has focused attention on the wrong issue: the problem with the current system of racial preferences is not that it leads to fewer black lawyers [or at least, I'm not confident Sander's proven that], but that a large percentage of blacks admitted to law school--mostly students who attended lower-ranked schools--will either never graduate, or never pass the bar. Previously, I've cited the statistic that 43% of entering black students fall into one of these categories, compared with less than 20% of white students. Ayres and his colleague Rick Brooks, in a forthcoming Stanford Law Review piece, come up with this complementary statistic:

On the first day of law school, we estimate that 42.6% of blacks entering law school had less than a 50% chance of becoming lawyers. (while virtually no whites students ó .23% ó were in this high risk category). These at-risk students predominantly attend low ranking law schools [Bernstein: which means at low-ranked schools, the statistic is well above 42.6 percent]. While Sander lobbies for a world where without affirmative action, where the top ranking law schools would become largely all-white, we consider a world where some of the African-American students attending lower ranking law schools would choose not to attend if they knew the real risks involved.

The problem is not so much that black students at elite law schools are being harmed by an affirmative action "mismatch," as Sander would have it, but that while the overwhelming majority of black students at elite schools succeed [update: in the sense of graduating and passing the bar], most black students admitted at the bottom two-thirds of American law schools will never become lawyers. [Update: Contra Sander's point about the effect of affirmative action on the number of black lawyers, a bottom-tier law school that admits ten black law students on an affirmative action basis, only two of whom actually become lawyers, is indeed increasing the pool of black attorneys, but at the cost of unfairly disrupting the lives of the other eight students.]

I cannot add much to the substantive analysis of this part of the debate more than pointing to the article and discussion about it (here and here).  What I can definitely add is a comment on the disruptive effects of law school.  Law school costs an enormous amount of money.  Unless you are independently wealthy, it is likely that you will exit law school with more than $100,000 in debt.  As someone who attended law school, didn't find it particularly challenging or stressful,  and did pass the bar, I often think that it wasn't worth it.  Becoming a lawyer out of a desire to help out with some sense of justice can be very disheartening in the real world.  Becoming a lawyer to be rich is a hugely inefficient way to become rich.  And those cover the two major motivational areas with respect to becoming a lawyer.  I am certain that those who find law school very stressful and then still can't pass the bar think the deal is even worse. 

I knew by the middle of my  second year in law school that I did not want to become a lawyer in a traditional law firm.  But by then I was more than $60,000 in debt and felt compelled to finish.  I have been very fortunate to find a corporate job tangentially related to my training (though I would not have had to pass the bar, and my pre-law school training would have probably been enough) so that I have been able to avoid working at a law firm without taking a total loss on my J.D.  But the debt service is still very noticeable.  I can only imagine how crushing it would be to have gone through law school and be unable to pass the bar.  The ABA requires that all schools have 'appropriate' racial compositions of their incoming first-year class or it refuses to give accreditation.  This seems to have the effect at the lower-tier schools of encouraging the schools to let students in whom the school knows are very likely to either fail to finish law school or (worse) are very unlikely to ever pass the bar if they do finish law school.  The trade-off in getting more minority lawyers while seriously damaging the financial health of far more minority non-lawyers seems to be a serious problem. 

(I will note for the record that this problem may not be generalizable much beyond law schools and perhaps medical schools).

Posted by Sebastian Holsclaw at 07:37 AM | Comments (808) | TrackBack

April 01, 2005


I can't tell if it is lack of information or bad reporting, but it seems to me that the important details of the Berger document stealing story aren't accessible.  (See for example The Seattle Times or ABC News).  From what I can tell, Berger was supposed to be helping the 9-11 Commission get information on Clinton-era terrorism knowledge and actions.  He removed from the National Archives five drafts of a document.  He shredded with scissors three of the drafts.  The 9-11 Commission said that they didn't miss anything because of the theft.  Mysteriously they said that before the investigation was complete and without seeing the documents which were taken. 

The Seattle Times version says:

The document, written by former National Security Council terrorism expert Richard Clarke, was prepared in early 2000 detailing the administration's actions to thwart terrorist attacks during the millennium celebration. It contained considerable discussion about the administration's awareness of the rising threat of attacks on U.S. soil.

Archives officials have said previously that Berger had copies only, and that no original documents were lost. It remains unclear whether Berger knew that, or why he destroyed only three of the five versions of a document. Officials have said the five versions contained slight variations as Clarke's report moved around agencies of the executive branch.

Berger was reviewing materials as a representative of the Clinton administration to the national commission investigating the Sept. 11, 2001, terrorist attacks. The question of what Clinton knew and did about the emerging al-Qaida threat before leaving office in January 2001 was acutely sensitive, as suggested by Berger's poring over the Clarke report before his testimony.

Unlike many major media versions of the story, it at least addresses some of the tricky issues, though it provides very little in the way of answers.  The key questions are:

When he took them, did Berger know they were not originals?

If he did, were they the only accessible copies?  This is important because in a large document depository (and the National Archives is one of the largest) destroying something out of the only well indexed or well organized copy set can be almost as effective as destroying normal originals if you are the only one who knows what you are looking for. 

If the answer to both of the above questions is yes to the first and no to the second, what could Berger have hoped to accomplish?  You don't steal documents for no reason at all.  You don't destroy 3 of them just for fun.  What was he trying to do? 

Why did he shred with scissors (I only mention that part to emphasize the fact that such destruction could not possibly be inadvertant) three of the drafts? 

What were the distinguishing characteristics of those drafts compared to the drafts he returned?

What were the differences in the drafts he took when compared to the original document, and why are they important?

A very odd situation all around.

Posted by Sebastian Holsclaw at 07:23 AM | Comments (659) | TrackBack