U.S. and Iraqi Polls

Today the New York Times published an article that seems to say that Iraqis do not favor U.S. troop withdrawal. Toward the end you read that there was an extremely limited sampling of opinions. The Times just published a more scientific poll that says the Iraquis want a withdrawal of U.S. troops by a 2 to 1 margin. This article also fails to mention that the Iraqi parliament, as well as Prime Minister al-Maliki, are calling for withdrawal. (The linked Christian Science Monitor article says that talks are on-going.) By all authority I have been able to find there has been ardent support for withdrawal among Iraqis since at least 2006 and strong support prior to that.

American polls are interesting. A strong majority has favored withdrawal for a long time. Bush’s handling of the invasion and occupation has for some time been viewed disfavorably by a clear majority. Almost 40% of Americans do not understand that McCain is against a timetable for withdrawal. Despite most people disfavoring his approach to the war, most Americans see McCain as the better commander in chief. Early polls on the two candidates are somewhat confusing.

Walls

I just read that a group out of the University of Texas recently petitioned the Organizatin of American States to condemn the wall between the U.S. and Mexico. It of course has already been condemned by Mexico and most of Latin America. While the wall can’t help but deter immigration, it’s overall utility is debatable. No one believes that the petition to the OAS will affect the building of the wall. Human rights considerations, and international law and opinion have not played a significant role in determining U.S. policy recently.

Our wall is to be 2000 miles long, as long as the low estimates of the length of the Great Wall of China. (Some estimate the other wall to be three times this length.)

Whatever your position is with respect to the wall, people agree that it is certainly symbolic of our era. It is a metaphor, a symbol, which for many replaces the Statue of Liberty. The welcoming beacon of freedom is replaced in the minds of many people with the blank expanse of the wall, like an extended palm signaling “halt.” For many people outside the United States our country is seen, not as a sanctuary, and champion, for the oppressed, but as a garrison, walled like a Medieval city-state.

Looking back, Bill Clinton’s euphoric descriptions of globalization (one of his favorite terms) seem naive and distant. The purpose of bridging cultures and identifying common interest has been replaced by phrases like “If you are not for us, you are against us,” “bring ‘em on,” “we are on a crusade,” and the like. We have turned a blind eye to international opinion, like the balnk stare of the wall.

We have not just invested in walling our country, but in creating a honeycomb of walls within it. Political forces have converted the world’s melting pot into a fragmented society in which cultural identity is preserved in part for defensive purposes. We are becoming a society of gated communities which look out at others with distrust and fear.

Our government has a growing list of citizens identified a suspected terrorists. The number of people on the list has apparently passed one million. That’s about 5 for each thousand adults. If you go to BellSquare on a busy day, there should be maybe ten or twenty “suspected terrorists” among your fellow shoppers. We have built walls around airports, public buildings and public gathering places, access permitted by guards only after inspection.

These walls of course are not just metaphorical. We have by far the biggest prison population in the world. More people are in prison than there are in Phoenix, Arizona. A staggering number of our fellow citizens have been through the criminal justice system in one way or another.  Prison construction and management has been privatized to a large degree and has become a booming industry. It could become a college major in some schools like hotel and motel management.

These are the costs of security, as we see it. The cry of “security!” seems to be in the ascendancy. It’s good though to keep it in context.

Tort Reform Can’t Muster Enough Signatures to Get on Ballot in Oregon.

Tort Reform is an initiative sponsored by largely by insurance companies with two main goals: Blocking access to the courts and reducing awards to people who have been found at trial to have been wronged. In Oregon an initiative fell short of the required number of signatures to get on the fall ballot.

This initiative was a very clever attempt to deprive many of the people who cannot afford a lawsuit from bringing claims by putting limits on contingent fees. The initiative would limit fees to 25% for awards of $25,000 or less and then to 10% of amounts in excess of $25,000. This would effectively deprive many of any opportunity to have a trial because lawyers would not be able to afford many contingency cases.

Here is what is not commonly known. First, contingent fees are most commonly charged in personal injury cases to people who cannot afford a lawsuit. Without a contingent fee, they could not go to court.

States already have limits on what a lawyer can receive as compensation. If a person thinks that a lawyer received too much as a contingency fee, they can ask the bar association to review the fee. Bar associations are rather diligent about this and at least in Washington have the power to reduce the fee but they will not increase it. The bar association does in fact reduce fees it determines were too high.

The purpose of the initiative is to further reduce compensation so as to deter lawyers from taking cases that promise hard work but involve limited damages.

This cap would put the injured person at a severe disadvantage in most lawsuits with insurance companies which routinely pay a great deal more for defense than what the plaintiff’s lawyer could hope to receive. It would tilt the playing field rather dramatically in favor of the insurance company.

I would guess that a fairly routine trial takes at least 200 hours of time for a lawyer. It is not uncommon to invest 500 hours or more on a trial. So for a lawsuit that involved a claim that was $25,000, the lawyer would receive a maximum of about $35 an hour if he or she was successful. If the claim was challenging, perhaps half of that, maybe less. If they lose, then there is no compensation. Meanwhile insurance companies pay their litigators four to eight times that amount (sometimes more than that) on an hourly basis.

In order to cover overhead, personal injury lawyers would have to limit the number of smaller contingent fee cases they took on.  On the face of it, the only segment of society that would benefit by this would be the stock holders of the insurance companies. To the degree that people who cannot afford a lawsuit are denied an opportunity to go to court (this would be most of the middle class), the society as a whole is destabilized.

It would be potentially economically disastrous to take challenging cases that took a lot of time, even if the claim was substantial. On a claim for $1 million the maximum allowed to a lawyer would be about $104, 000. If it took 1000 hours to win, then the lawyer would receive about $100 per hour. This is about half to a third, or less, of what an experienced trial lawyer would charge. It would be enough to cover overhead and leave a profit but it would be devastating to most firms to lose or receive a smaller award. So the economic incentives would not be high for taking on a large challenging case.

Again, the system would work much better and insurance companies would save significant a amount of money if they settled cases promptly instead of being highly adversarial from the beginning. John Ladenburg’s statistics from Pierce County show this quite clearly. (See my entry on June 20.) Instead of trying to create a system that prejudices the rights of injured people, the insurance companies could achieve actually a better result for their bottom line by just investing their efforts in prompt, reasonable settlements. This would have the added benefit of reducing the role of trial lawyers in the system and thereby give more money to the injured person.

Factoring in Experience

In considering the candidates, one must consider Obama’s lack of experience in national and international politics. But how much wieght does this carry and how do you evaluate it?

President Bush represents one worst case scenario. As a fledgling president, he came under the control of a small group of people with a minority, highly militaristic view and through him they were able to implement views that were generally regarded as far fetched. In conjunction with that Vice President Cheney filled the vacuum of power created by neophyte president, and assumed primary control of domestic energy policy as well as p.r. responsibilities for the drum beat of war.

The undue influence of the neocons certainly contributed Bush’s rush in the direction exactly opposite to that which he promised. Bushes campaign, if you recall, included an unconditional promise to unite the nation and under no circumstances would he permit us to engage in nation building. Exactly the opposite of course has become the defining character of his presidency.

Predictability of policy is certainly a risk in choosing a president without experience. Clinton with his talk about national health care raised hopes for a liberal administration, but his policies proved to be directly in line with Reagan’s. Actually he succeeded in balancing the budget, a classic conservative goal that has been long abandoned by the Republican Party, at least during Republican presidencies of the past half century or so.

Reagan had no experience but gave what he promised, as did Carter. So I guess that it is fair to say that an inexperienced president creates a greater risk of heading in a direction that could not have been anticipated from his campaign.

Another risk is that a president might panic in a crisis. Despite the fact that most of the presidents we have elected in recent years have had little experience, we have not seen much panic, other than perhaps seeing a president decline to interrupt reading a children’s book when told we were under attack, then disappearing for a day while the vice president ran the country.

Kennedy’s willingness to launch a nuclear war over the Cuban missile crisis may perhaps have been due to a lack of experience. Recent revelations have certainly been shocking. But all in all there has been little evidence of anyone become overwhelmed and panicking while at our country’s helm.

It is interesting to think that Obama with one plus years in the Senate has more national political experience than any first term president since 1968, Nixon’s first term, with the exception of George H. W. Bush.

My conclusion is that, with the caveat that we cannot predict as well what he will do, there is not much risk in choosing a president who has little national political experience.

The Exxon Valdez Decision and Punitive Damages

Exxon Shipping Co. v. Baker (the Exxon Valdez decision) provides an interesting look at our Supreme Court, particularly since so many of the members were selected by our country’s first administration composed of former oil executives.

The decision derives from the worst envirnmental disaster in our country’s history, when millions of gallons of oil were leaked into Prince William Sound in Alaska. The oil came from a supertanker (over 900 feet long) whose drunken captain had left the vessel in the hands of an unlicensed third mate who could not negotiate the passage. The ship ran aground on a reef. Wildlife was destroyed, a habitat rendered toxic and all the people who depended on Prince William Sound for their livelihood, including fishermen in Alaska, Washington, as well as elsewhere, were ruined. The devastation was overwhelming. Even now nineteen years later, oil stained gravel and sand lies just beneath the surface on the shore.

The captain had a history of alcohol abuse and was still intoxicated eleven hours after the incident. Exxon was found by a jury to have acted recklessly, and the jury awarded $5 billion in punitive damages. Exxon appealed, questioning on a number of grounds the punitive damage award.

Before arriving at the Supreme Court, the case was considered by the Ninth Circuit Court of Appeals. That court upheld the jury’s right to award punitive damages, but cut the amount of the punitive damages award in half.

Exxon petitioned the Supreme Court for review hoping to convince it that punitive damages were in appropriate and failing that that even half of the jury’s award was excessive.

Washington’s Attorney General, an ardent tort reform proponent, who campaigned against large jury awards, saw an opportunity for publicity. While actually claiming to his constituents that large jury awards and excessive litigation costs prevented the State of Washington from correcting to the conduct that gave rise to the litigation against the State, he undertook to champion the cause for punitive damages to the Supreme Court. He argued for the right to punitive damages and asked that the $5 billion award be restored.

In a very unusual decision, the Court announced that it was evenly divided on the question of whether punitive damages could be awarded against a corporation under maritime law. The Court said that it would not render a decision on that point, leaving the decision of the Ninth Circuit in place. (With nine members you might wonder how the Court could be evenly divided. Justice Alito recused himself, presumably because of some association with Exxon, creating an even number of justices deciding this case.) In the next few years from two to four of the members of the Court will be replaced and a reconstituted Court could then decide this issue.

The Court, without examining the right to punitive damages under maritime, law chose to consider whether such damages were prohibited by the Clean Water Act and, if not, whether the award was excessive. What is odd about this is that the Court left open the opportunity for it to later decide that there were no punitive damages available under the maritime law, undercutting the entire decision.

This very narrow ruling is becoming a trademark of the new Roberts Court. The new Chief Justice attempts to avoid sweeping decisions and tries to limit them to the facts of the case while seeking to avoid fractious split decisions. In this decision he selected issues that were less divisive than the question of whether punitive damages were available under maritime law.

The Court, after finding the the Clean Water Act did not preempt maritime common law, discussed the roots of punitive damages, tracing it back to English common law, codes from the Middle Ages and even the Code of Hammurabi. The decision quotes from an 18th century American decision where punitive damages were awarded against the Secretary of State for an unlawful search of someone’s papers. (They apparently had different sensibilities then, although maybe not in the case of the Attorney General.)

The Court said that punitive damages were “wildly” accepted by American courts by the middle of the 19th century. At that time they were called “exemplary damages” a more favorable term, and were invoked in cases involving extraordinary wrongdoing. Their purpose was said to be to set an example for the sake of deterence. They were also said to compensate for intangible injuries that were not a part of the legal definition of compensatory damages. The court noted that the concept of compensatory damages has broadened so that this justification no longer applies. Today the Court said that punitive damages serve the purposes of retribution and deterrence and are reserved for outrageous conduct that is recklessly indifferent to the rights of others or otherwise deplorable.

In Nebraska punitive damages are barred entirely. In Washington, Louisiana, New Hampshire and Massachusetts they are permitted only when authorized by statute. (In Washington this nearly amounts to a bar on them as the legislature disfavors this aspect of the common law.) Two states have limited the type of rewards which may be recovered as exemplary damages and several have limited the amounts.

In an interesting and uncharacteristic detour the Court examined the laws of several other countries on the question of punitive damages and found that they were generally subject to tighter control than in American Courts.

The Court rejected the contentions of the tort reformers who claim that punitive damages are becoming extravagant. It stated that neither the amount of the awards nor the percentage of cases with punitive damages awards has increased over time. The Court said that the figures show restraint with respect to this type of award.

The Court though found fault in the lack of predictability of the amount of the awards and the lack of consistency in determining an appropriate amount. It announced that it would create criteria so that this element of damages would be rendered more predictable.

The Court noted that the criminal justice system’s sentencing function has the same purposes as a jury assessing punitive damages: retribution and deterrence. It found it noteworthy that the “indeterminate” sentencing system had been rejected and suggested that it would do the same thing for punitive damages awards, avoiding the “desserts of uncharted discretion.”

The court cited studies showing that the ratio of punitive damage awards to compensatory awards was less than 1:1, meaning that actual damage awards were on average more than the accompanying punitive damage award. Without much more discussion the Court decided that in maritime cases the limit on punitive damages would be the amount of the compensatory award.

Justice Scalia and Thomas separately concurred. Justice Thomas often seems to follow Justice Scalia’s views almost like a shadow. Scalia said that the reasoning here was correct but he disputes cases cited in the opinion that put a constitutional limit on punitive damages.

Justice Stevens dissented from the part of the opinion that imposed a limit on maritime punitive damages. His dissent shows the shallow, if not outright ignorant use of the term “activist judges,” Tort reformers often rant against judges usurping the role of the legislature and attribute that to “liberal judges.” Justice Stevens, sometimes called a liberal justice, opined that it is not the role of the Court to devise a formula to impose on juries. He said that this is a legislative function that ought to be reserved for Congress.

Justice Ginsburg, generally regarded as particularly thoughtful, shared Stevens’ aversion to the Court legislating damage limits. She pointed out that the majority acknowledged that there was no perceived urgency requiring the court to break from the common law tradition. She pointed out that the data that informed the decision showed that the traditional “abuse of discretion” standard by which punitive damages are traditionally reviewed functioned perfectly well. She also pointed out a number of unanswered questions about the decision.

Justice Breyer also filed a dissent, saying that he had no particular problem with the imposition of a ration like the one adopted but that it should not apply in extraordinary cases. He went on to point out the high degree of scrutiny that this award had received at the trial court level and what the Ninth Circuit Court called the “egregious” nature of Exxon’s conduct. As a special case exception he would have sustained the Ninth Circuit Court’s decision.

There are a number of interesting features to this case which I’ll discuss on another occasion. One quick observation. Broadly speaking punitive damages and criminal law address the same sort of conduct, as suggested by the Court in this decision. That is conduct that is deplorable or which recklessly endangers others or their rights. Punitive damages and sentencing have exactly the same purposes, to punish the guilty and to deter such conduct. You would think that people supportive of strong or harsh sentencing standards would support strong or harsh punitive damages standards. It turns out of course that generally speaking the people who support incarceration over rehabilitative purposes in sentencing favor the abolishment of punitive damages. There are racial and class distinctions between the two groups of defendants. Hopefully there is some other explanation for this apparent inconsistency.

McCain: a Balanced Budget?

McCain is focusing more on domestic issues and particularly the economy. He has announced that he will balance the budget and while their is some confusion about whether that would occur during the first term or the second term (which McCain pointedly has declined to speculate about until this moment), I can’t help but wonder how this is possible.

I have thought that this was a critical issue and was disappointed by McCain’s announcement that he would significantly increase defense spending while cutting taxes. This formula was followed by Reagan and resulted in deficit spending, by H. W. Bush and resulted in deficit spending. W. has dogmatically followed the prescription with historic deficits. McCain announced that he will follow Bush’s program, exept greatly expand the factors that lead to the deficit.

Now he’s saying that he will in four or eight years balance the budget. How?

Obama and McCain could learn from the Mariners

I’ve met three kinds of Mariner fans: philosophers, baseball fans and front runners. The front runner is a Seattle sports fan desperate to feel the joy of winning. A baseball fan enjoys the intricacies of the game, and the philosopher finds lessons in it all. (There is a fourth category — the picnicker — who attends the game because of the ambiance of the stadium but this phenomenon is transient so I have not included this group.)

In a good season all three kinds of fan find satisfaction. There have been many, many seasons where the pleasures offered by the Mariners to their observers have been too subtle to detain the front runner. The attendance records of the 70’s, 80’s and early 90’s give us some measure of the number of people in the other two categories: Roughly 5,000.

This season has been noteworthy because the team has culled from its audience not only front runners, but its woeful, error prone and too often half-hearted performance has distanced many baseball fans. They have though provided grist for the philosophers.

It seems to me that our presumptive candidates for the presidency are having Mariner moments. To me it is entirely appropriate that the selection process and most of the presidential campaign occur during baseball season. Then the hard hitting last weeks of the campaign and the sudden death election occurs during football season. Baseball season though is the time to observe and reflect on the candidates.

McCain is having the same experience as the Mariners at the beginning of this season. Before the season the Mariners thought that they were one player away from the playoffs, and they went out and got him: Erik Bedard, pitching ace.

McCain felt that he was one domestic policy away from the brass ring and stayed out to get it: Energy and the environment. He stayed out of the Senate and avoided every vote that came up in the area. Now he has an environmental and energy “vision.”

The problem for McCain occurred when he took the field. Little things popped up that seemed to spoil the moment. He went to Iraq to show his commander in chief qualities and forgot who was fighting. This reminded me of Jose Lopez looking between his legs to see the ball scooting toward center field.

The Mariner defense was supposed to be good this year and McCain was strong on war and the military. Just early season jitters or a harbinger of things to come? What happened?

The errors became infectious and others around him started making them, obscuring his “vision.”

Then, like the Mariners’ starting pitching, the “vision” started to falter. McCain, who had historically opposed off shore drilling came out for it as a cure for spiraling gas prices. When a government report said that this would not have such an effect, he said that it would help “psychologically.”  This is a bit like Bedard not making it through the third inning.

The Mariners’ season collapsed and McCain’s is just barely begun. Hope he has better luck than the home team.

There’s a little bit of Richie Sexon in Obama, who electrified crowds with talk of change and new direction and populist involvement. He was a power hitter. Richie Sexon, a power hitter,  was told that he also needed to hit for average. The team was going nowhere if he could not hit over .200. So Richie changed his stance and his approach at the plate. He became patient instead of agressive and sure enough his average did climb . . . about fifteen points. He started getting walks which was good, but he lost his power. Now he is pretty much foundering.

Obama is moving to the right, trying to convince people that he is “strong on security” and that he will not overthrow the world as they know it. Richie would tell him not to change his stance too much in trying to hit for average.

Pundits and Advisers, Bill Krystol and Charlie Black

Today and yesterday a couple of statements by political gurus struck me as both repugnant and reflective of the brutal calculations that make up national politics.  Fist Sunday morning Bill Krystol said that, if Obama is ahead, Bush is more likely to invade Iran.  This among other things would be an :”October surprise” of the sort that could cause major voting shifts.  Krystol suggested that if McCain is ahead Bush might go from office quietly, confident that McCain would attack upon taking office.

The facile way these words tumbled off his tongue (and dribbled down his chin) shocked me.  He was talking about a decision that would cost hundred of thousands, perhaps millions, of lives.  A cloud of mystery remains on the question of why an attack in violation of international law is necessary.  The  2007 National Intelligence Estimate of course said that Iran had discontinued objectionable nuclear activity. making this talk disturbingly similar to the talk in 2003.

Today Charlie Black a very prominent adviser to McCain apologized for saying the assassination of former Pakistani Prime Minister Benazir Bhutto was an “unfortunate event” that had “helped” Mr. McCain’s presidential bid.  And that a terrorist attack on U.S. soil would be a big advantage to McCain.  It is probably just me but I find it unsettling to see how life is ground through political calculations.

This is not a Republican methodology; it’s a bipartisan approach.

America’s Climate Security Act of 2007

For years the Senate Committee on Environment and Public Works was the burial ground for legislation addressing among other things coal powered electricity generation. The U.S. has about a quarter of the world’s known supply of coal and coal is the primary source of electricity in this country. (Hydroelectric power is not as prominent elsewhere as in this region.) It is commonly said that reducing the emissions of coal used to generate electricity is vital to controlling greenhouse gas emissions here. Most seem to believe that this is the cornerstone to any effective policy. In December the committee, with a Democratic majority, passed America’s Climate Security Act of 2007 and it the bill will be debated in the Seante next week.

The Republicans are split on this bill. Larry Craig and other Republicans did all he could to prevent the bill from getting out of committee. The bill though is sponsored by Joe Lieberman and John Warner. (Warner is on the committee.)

The bill would impose emission limits on electric utility, transportation and manufacturing industries and includes financial incentives for reducing emissions, as well as assistance for zero and low carbon technologies. The bill creates carbon trading, the sort of thing that is talked about by Senator McCain in speeches. Senator McCain though has not endorsed the bill. When he was in the Northwest he talked vaguely about legislation that sounded kind of like this bill. Remember that a few years ago McCain had co-sponsored a bill with Lieberman on this topic. As 2008 approached though he seemed to fade from association with this legislation. Lieberman continued the fight and on the current bill Warner’s name appears in place of McCain.

The principal opponents of the bill seem to be the National Association of Manufacturers and the American Council for Capital Formation. Their opposition is adamant but their argument is tired and unimaginative, same old refrain that has proven to be false in the past. They say that jobs will be lost and that the price of electricity will soar. This is exactly what they said in opposition to legislation to curb acid rain but prices actually fell following the legislation without imposing hardship on the work force. They do not to offer a good explanation of why they were wrong then and right now.

A number of environmental groups oppose the bill because it is not as comprehensive as it could be and its standards are not terribly limiting. In fact part of the selling of this bill to industry was that if this isn’t passed something far more stringent might be imposed. Carbon trading is not universally embraced as an effective means of controlling the emissions and many groups balk at the support the bill will give the nuclear industry.In short it is a compromise designed to get through Congress. Senator Bernie Sanders tried mightily to amend the bill to give it more scope and spine but failed. The bill’s adovates say that the bill is a meaningful beginning to a pressing problem. It’s detractors say that it frames the issues for years to come in a manner favorable to industry.

Check out the Senate debate.

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