Thursday, March 31, 2005


New sidebar feature -- Sesame Street Terror Alert!

Thanks to Phantom Scribbler, who apparently reads this blog even though she isn't related to me, I was led to "geek and proud (dot) net," which offers a Homeland Security Terror Alert coded not only by colors, but also by your favorite Sesame Street characters! (If you don't see it below my TTLB ecosystem link, scroll down to the bottom of the page.)

Click here to see the full array and add one to your own blog. If the terror alert level is down-graded to blue, we'll get to see "Cookie Monster." I hope that happens!



Donuts can be good for you

My donut shop is cool. Like my video store. But different.

If you're a WWII history buff like me, you've probably wondered: "Hey, what ever happened to guys like Edouard Daladier, Paul Reynaud and Maurice Gamelin after France surrendered to Germany in June 1940? And how about Leon Blum?"

These guys were leaders of France's Third Republic and waged the short but disastrous war against Nazi Germany in 1939-40. Daladier was Prime Minister of France at the beginning of the war, and became War Minister when Reynaud took over as Prime Minister in 1940. Gamelin was the field marshall in charge of the French armed forces. Leon Blum was Prime Minister before Daladier and a vocal opponent of Hitler.

So what happens to the leaders of a country that surrenders? The WWII history books I've read typically gloss over that. All they tell you is that the traitorous "Vichy" government took over the weak remnant of France that was not occupied by Germany. The leaders who opposed Germany simply "pass from the world stage," so to speak.

I suppose I could have just Googled these guys, but I didn't. Instead, I learned the answer at my donut shop.

My donut shop has walls covered in memorabilia of various kinds, but one particular section has memorabilia of the founder of the shop and, I gather, some of his friends and relatives from World War II. These guys were in various branches of the U.S. armed forces. Prominent among the snapshots, newspaper clippings, discharge papers and the like is a large front page spread from the newspaper of a nearby town. It's dated May 8, 1945, and the banner headline announces the surrender of Germany. VE Day.

A small item in the lower left hand corner reports that various former VIPs were released from prisons in Germany and Italy just liberated by allied troops. These included Daladier, Reynaud, Blum and Gamelin. They were imprisoned during the war, that's what... Marshal Petain and the Vichy government had tried them for treason!

"The things you can learn if you just keep your eyes on the prize," I thought, as I turned back to the display case bristling with chocolate old fashioned, glazed raised, jelly filled and other assorted donuts.


Wednesday, March 30, 2005


Johnnie L. Cochran, Jr., 1937-2005

I was saddened by Johnnie Cochran's death. I learned about it from a student this morning, who tried to make a witticism about "the glove." Mainstream America has a picture of Johnnie Cochran as the somewhat slick "trial lawyer defined by the O.J. Simpson case," to quote the New York Times obit. My local paper's obituary shows Cochran holding up the bloody glove in the O.J. Simpson trial and quoting his famous argument to the jury "if it doesn't fit, you must acquit."

My picture of Johnnie Cochran is somewhat different. While I can't say I knew Johnnie Cochran personally, I had the privilege of working with him on the case of Geronimo Pratt, a former Black Panther who was wrongfully convicted of murder in 1972 in a trial in which the prosecution illegally withheld critical evidence. 26 years later, Pratt was released from prison due to the work of a team of attorneys spanning more than two decades.

I met Johnnie Cochran a few times in connection with the case, always in a group. He was a physically imposing man with great charm and charisma, who had a politician's flair for really working a room. But to the extent I can claim to be acquainted with him, it wasn't really through any personal interaction.

I joined the Pratt case at the very end, writing the final appeal brief defending the lower court decision to release Pratt. In doing so, I had to review many volumes of transcripts from the 1972 jury trial, in which Pratt was defended by a 35-year-old Johnnie Cochran. As any appellate lawyer will tell you, you develop an odd kind of intimacy with the trial counsel as he appears on the transcript pages. I feel like I spent many hours alone, not with Johnnie, but with "MR. COCHRAN," getting a feel for his speech mannerisms and even, I like to imagine, getting inside his head.

Cochran was convinced that Pratt's conviction was an injustice and vowed to stay with the case until the verdict was overturned. There was no money or glory to be made by making that vow. Cochran kept that promise. Not many lawyers can claim that kind of fidelity to a client. As the NY Times reports, and as I had heard from other sources, Cochran always said that the Pratt case meant the most to him of all his cases.

Johnnie Cochran's reputation can't escape the influence of our society's ambivalence toward successful trial lawyers and sucesssful black men, and his role in the O.J. Simpson case is "defining" in large part because it fits that ambivalent social myth so well. But long before the O.J. Simpson trial, his national profile and the more gaudy success of his later career, Cochran established a reputation as a leading civil rights lawyer. Yes, he was a showman, yes he was something of a self-promoter -- though what highly successful self-made man or woman isn't something of a self-promoter? But side by side with these traits was the integrity of a man who acted on deeply held convictions. Johnnie Cochran was for years perhaps the first lawyer you would want to call if your son had been beaten up by the police. Whatever one thinks of O.J. Simpson, Cochran's defense strategy was not some smoke and mirrors gimmick, but the product of a career of standing up for the rights of victims (typically though not always racial minorities) of the excesses of the notoriously overreaching LA Police Department.

To me, Johnnie Cochran is a shining example of a lawyer doing well by doing good. It's nice that virtue does not always have to be entirely its own reward. I have little use for the moralism which holds that a do-gooder must either be a saint who takes a vow of poverty or else can be reduced to the punch line of a cynical joke. Johnnie Cochran had a sincere, heartfelt and justified skepticism toward law enforcement, a recognition that law enforcement agencies can and often do abuse their power. A free society needs its Johnnie Cochrans.



"It's a deceptively beautiful day"

So said a colleague of mine early this morning about the weather, which looked like the start of a sunny spring day but which is forecast to turn into thunderstorms -- thunderstorms in March! -- by later afternoon. Already, now, it has turned darker, colder and ominous.

But isn't the day's beauty deceptive in the sense that all beauty is deceptive -- the way it tricks us into thinking that it will last forever?


Tuesday, March 29, 2005


A few ironies of the Schiavo case

The University of Miami Ethics Program has a web site setting out this informative time line of the Schiavo case. It's full of interesting factoids, worth checking out if you want to take the trouble to form an opinion on the matter.

A few random thoughts:

A couple of medical malpractice actions were brought on behalf of Terri Schiavo in the early 1990s, in which she was awarded over $1 million. I'm guessing that the great majority of her supporters in Congress, as well as the Bush administrations in the Florida statehouse and the White House would like nothing better than to make such awards unavailable to people like Terri Schiavo in the future, through their "tort reform" efforts.

Terri Schiavo's parents filed multiple legal actions in both federal and state court, seeking review in both the Florida and United States Supreme Courts several times, over a span of seven years. I'm guessing that many of the members of Congress who voted for the "Parents of Terri Schiavo relief bill" to assure them yet another shot at review in federal court have also voted to restrict and cut off exactly this kind of legal maneuvering -- including successive habeas corpus petitions -- on behalf of death row inmates in recent years.

I'd like to know how many of the "sanctity of lifers" who have demonstrated on behalf of prolonging Terri Schiavo's persistent vegetative state also oppose the death penalty. I'm sure there are some people who are principled across the board on these issues, and also oppose the death penalty. I'm guessing: not many.

One of Terri Schiavo's supporters, Richard Alan Meywes of Fairview, N.C., showed his regard for the sanctity of life when, a few days ago, he was arrested for offering $250,000 for the killing of Michael Schiavo and another $50,000 for the death of the Florida judge who originally ordered the removal of Terri Schiavo's feeding tube.


Monday, March 28, 2005


Congress and the Schiavo case

Have you ever seen the wheels come off a bandwagon so quickly?

According to recent polls, 76% of Americans “have been following the case of Terri Schiavo” either “very closely” or “somewhat closely.” Only 14% have followed the Schiavo case “not very closely.” That would be me.

I really dislike delving into the personal and family tragedies of others, and I dislike when such stories dominate news coverage when publicizing them fails to serve the useful public purpose of bringing an important and overlooked public policy matter to light. The Schiavo case doesn’t pass that test. Our laws regulating issues like the removal of feeding tubes from patients in a “persistent vegetative state” were pretty good, and not particularly underpublicized. The judicial system worked well in this case – indeed, arguably too well. There have been over 12 years of litigation over Terri Schiavo’s fate, seven years over the issue of whether her feeding tube should be removed.

But while I don’t intend to get into the details of the Schiavo family tragedy, the politics that have swirled around the case are worth remarking on. There are a couple of posts worth.

For right now, let's look at the bandwagon. On March 20th and 21st, Congress held a special session to rush through passage of “A bill: for the relief of the Parents of Terri Schiavo.”

President Bush cut short his vacation to come home and sign it. The Republicans clearly felt like the cat that had eaten the proverbial canary. They had won a splashy victory in the course of discovering the next great wedge issue – EUTHANASIA! -- which, like race in the 60s through the 90s, and gay marriage in the 2004 election, will (they hope) galvanize their religious conservative base in the 2006 midterms and the 2008 presidential race.

Democrats, running so scared of the religious right that many of their leaders are considering abandoning the party’s pro-choice position, meekly lined up behind the Schiavo bill.

But wait! On Tuesday March 22, the day that Judge Whittemore, acting under the Schiavo bill, rules against the Schindlers and refuses to order reinsertion of the feeding tube, various polling organizations take to the phones. Lo and behold, somewhere between 70 and 80 percent of Americans believe Congress was wrong to pass legislation to intervene in the Schiavo case, and President Bush was wrong to sign it!

54% said they were less likely to vote for their Congressman if he voted for the Schiavo bill (against only 26% who said they were more likely to vote for him); 65% said Congress and the president were motivated to make the law more by politics than principle (against only 25% who said the law was motivated more by principle).

By Thursday the 24th, no one in Congress is crowing about the Schiavo bill, and Tom Delay quietly slinks off his high horse.

What’s the deal? If members of Congress are such slaves to polls, couldn’t they have taken one before getting behind the bill? I guess it happened too quickly...


Friday, March 25, 2005


Ex post post

One more thing... Part 6 of 5 on steroid use in baseball

As "a professor of constitutional law," as well as a baseball fan, I can't resist adding one more thought. The idea of wiping out records of players who have used steroids prior to today, in addition to its flaw of punishing the fans as well as the offending players, is also un-American. Our constitution embeds as one of its core principles, a prohibition on "ex post facto" laws. (U. S. Const., Art. I, sec. 9, cl. 3) An ex post facto law increases a penalty retrospectively, that is, it punishes a crime that has already been committed more severely than called for under the law at the time of the crime. Our founders viewed ex post facto laws as a hallmark of oppressive and arbitrary government.

The whole reason that Congress held the steroid hearings is that the Major League Baseball penalties against steroid use were too light; players were presumably taking calculated risks by using steroids, figuring they could accept the penalties if caught. Wiping out records is a bad idea for many reasons, not least of which was that it wasn't a prescribed penalty at any time in the past, and it would therefore be an ex post facto punishment.

So Senator Jim Bunning should shut up, and Congress should not try to pressure MLB to do something that Congress could not constitutionally do by legislation. Nor should MLB "voluntarily" impose ex post facto punishment on steroid-using ballplayers. Even though the constitution doesn't reach MLB's actions, it would be ironic indeed for our "national pastime" to adopt the practices of tyrants rejected by our constitutional founders.

Okay, I've said more than enough on this subject...



The integrity of the game

Integrity? What integrity? Part V of V on steroid use in baseball

My argument so far: steroid use in baseball should be banned – not because steroid use is evil or immoral – but as an optimal regulatory response to a classic health/consumer protection problem. Steroids are a product that create a serious health hazard, but their use is hard to resist because the performance-enhancing quality creates a powerful incentive to use them. (Many consumer products are harmful yet hard to resist – often because of their addictive qualities, like refined sugar, junk food and cigarettes. Interestingly, the only one of these that is arguably “evil” because of its direct harmful effects on non-users – cigarettes – will never be made illegal in our lifetimes.)

The most often repeated argument against steroids, is also the most vague and the lamest: steroid use “undermines the integrity of baseball.” This comment is typical:
“I think all sports have the moral obligation to erase any records linked to banned or illegal performance-enhancing drugs,” says Keith Strudler, a professor of sports communication at Marist College in Poughkeepsie, N.Y. “This goes beyond the simple concept of justice - which is clearly relative and impossible to guarantee - but is critical in maintaining the integrity of the game.”
There are a couple of faulty premises here, but the biggest one is the nutty idea that professional baseball has “integrity.” I see three concepts interwoven (or confused, really) in the notion of “integrity” that is bandied about in discussions about “moral” issues in baseball. Integrity can mean:
1) Outcome integrity: that the games are not fixed, like professional wrestling, but are actual competitive contests with no predetermined outcome and in which the rules are applied fairly and consistently;

2) Records integrity: that there is a consistently level playing field in which measures of success (e.g., wins and losses, performance records) correlate highly with athletic skill, both on the individual and team level;

3) Institutional integrity: that the sport is an important social institution which fosters character and social virtues other than athletic ability, both in its participants and its spectators, such as “good sportsmanship,” honor, honesty, humility, leadership, respect for tradition, family values, and god knows what else.
I believe that baseball has had a good grip on “Outcome integrity” ever since the “BlackSox” scandal in which the Chicago WhiteSox threw the 1919 World Series having been promised payoffs by gamblers. As far as I know, Major League umpires do a very good job in applying their game-determining judgments fairly. Indeed, as far as I know, this is true of most competitive sports; baseball doesn’t have exceptional “integrity” in this regard, and in any event.

More to the point, this integrity – which is a very minimal, threshold notion of integrity – is not affected by steroid use. Steroid users may be able to get around on the fastball faster and hit the ball farther than non-users, but they still have to win under the on-field rules, just like the “more athletic” team still has to win under the on-field rules. If steroid users are “cheaters,” as I argued before, it is only in the sense that they have taken a short-cut to improved athletic prowess – it’s not like they’ve bribed the umpires to give them better ball-strike calls.

Folks like Professor Strudler and Senator Bunning try to bring in “records integrity” issues when they call for wiping out baseball records of steroid users. But --as I’ve argued before -- the form of "integrity" is inherently weak in baseball: Comparing player performance – between eras or even within a single season – is rendered highly imperfect by factors that may well have a much more significant affect on records than steroid use does. And baseball’s integrity is weaker than other major league sports (those with salary caps) in terms of competitive balance among franchises, with the “large market” teams occupying better positions to field highly skilled teams.

The idea that baseball has institutional integrity is something of a laugh – baseball is the entertainment business, and all other forms of integrity consistently yield, in the baseball calculus, to the demands of the entertainment business. Baseball ownership cares very little about the history of baseball, other than its importance as a marketing tool. They constantly manipulate the fields, stadiums, equipment and rules to promote fan interest and profits. Baseball owners believe that big offensive numbers generate more fan interest, and, lo and behold, the three biggest offensive explosions in the modern game occur – when? After the BlackSox scandal, during the great depression, and after the 1994 strike which cancelled the World Series... all when baseball needed to bring back the fans.

Historically minded fans might feel some attachment to “traditional” franchises in the original cities, but teams have moved around a fair amount seeking greener financial pastures. The “integrity” of the game – in terms of historical tradition and level of talent – has repeatedly taken the back seat to financial interest with franchise relocation as well as expansion that has doubled the number of major league teams.

Finally, the hero worship thing... Does baseball care about the moral character of its players? Yes and no. Yes, when bad moral character affects player performance or revenues. Otherwise no. Major League Baseball wants its players to be virtuous heroes because that is a powerful marketing tool. Many players play along with the demand that they exhibit virtuous character because that affects their ability to get lucrative product endorsement deals. (And of course, MLB and its players are quite happy to assert their "hero" status when that's useful to avoid answering nasty questions in front of Congress or to fend off criminal investigations.) Character virtue of ballplayers is a powerful marketing virtue. But if the fans stopped their neurotic demand that athletes exhibit all the other human virtues, do you think Major League baseball would insist on them as a matter of “integrity”?

The idea that baseball has institutional integrity is the silliest idea of all. The baseball establishment self-righteously crows about the amorphous institutional “integrity of the game” when it serves their purposes to promote marketing, to gain an advantage in player-management internal negotiations, or to defend their antitrust exemption before Congress. But baseball owners and players will be the first to tell you – when it serves their purposes – that baseball is a for-profit business. That’s all we hear about when players, agents and owners get down and dirty with contract and salary negotiations, when teams try to strong arm local governments into sweeheart stadium deals, or when franchises seek to relocate to new cities. If there was more money to be made by producing a spectacle of fixed contests like professional wrestling, do you for a minute believe that baseball owners would put even “outcome integrity” before profits?



Addendum on player performance

As I argued previously, numerous factors render it difficult to compare player performance across time. I forgot to mention, that any serious baseball fan knows that there are numerous factors that skew player performance records even among contemporaries. A hitter who plays 81 home games in a hitters park, like Houston or Denver for instance, will likely have inflated hitting statistics. Furthermore, we also know that a hitter will compile better numbers and perform better if he bats in a better lineup – a great hitter in a weak lineup can lose lots off his performance stats because opposing teams consistently pitch around him. And speaking of which, Barry Bonds (steroid allegations aside) might well have 100 extra home runs by now had opposing teams refrained from the arguably “unsportsmanlike,” or at least unsporting practice of pitching around him and intentionally walking him to the tune of 150 to 200 walks per season the last few years.

All of these factors create significant distorting affects on performance records as a measure of athletic skill, and for all we know skew the records more than steroid use.

UPDATE: Paul Noonan has some interesting and "electric" commentary on this issue here, responding to my Asterisks post. This addendum, written after his post, may answer some of his contentions.



Evolutionary progress

One step back, two steps forward?

Even as my blog has become an "extinct fossil" in the TTLB ecosystem (see sidebar), CM continues to evolve on the web in other ways. A reader advises me that a Google search for "Oscar Madison" produces this blog as the second, or even the first search result -- that is, before web references to The Odd Couple! Talk about measures of (self) importance!


Thursday, March 24, 2005


Athletic virtue

Part IV of V on steroid use in baseball

Here's another knock on steroid use. "It undermines our confidence in our sports heroes. We thought Mark McGuire was a hero but (if it turns out he indeed used steroids illegally), then he's just a cheater. We're disillusioned, our faith in our sacred institutions is shaken, and Mark McGuire must be punished for this."

Making heroes out of athletes goes back to ancient times, but the ancient Greeks and Romans were sophisticated enough to distinguish between athletic prowess and other virtues. It's an American thing to assume that all of the human virtues tend to go together and that, therefore, a great athlete is (or should be), in addition, a nice, kind, even-tempered person who lives a clean life and exercises good judgment about using the millions of dollars we pay him. (Or in the case of baseball Hall-of-Famer and addle-brained politician Jim Bunning, that the former star athlete would make a good congressman and Senator). We encapsulate this foolishness into the notion that a sports hero should be a "role model" to youth.

This is a neurotic belief system, because even people who cling to the "role model" idea know full well that it is false, and simply refuse to reckon with the contradictory facts. There is no earthly reason to assume that great athletic ability is correlated with any other virtue, and overwhelming evidence that it is not. Babe Ruth, while apparently big-hearted, was a wild partier who was viewed as so irresponsible that he was never seriously considered for a managing job after his retirement, which was a heartbreak to him. Ty Cobb was the great asshole of his day. Pete Rose is a gambling addict and a pathetic liar. Professional sports Halls of Fame are filled with many nice people, I'm sure, but also with the profligate, the substance abusers, the addictive gamblers, the spousal abusers, and many other sorts of rogue.

[Here I might add that among our many confusions on these issues of sports and morality, we are deeply confused even about the purpose of an institution like the Baseball Hall of Fame. Is it a museum of the history of on-the-field baseball performance, or is it an honor society for retired athletes who combine athletic performance and certain character virtues? Only the latter purpose provides any basis for excluding a ballplayer like Pete Rose.]

Why do we need sports "heroes" to have all these other virtues that make them "role models"? Is it because we pay them so much? That's ass backwards. Is it a "hoop dreams" syndrome: we want to reassure largely disenfranchised racial minorities that they have a stake in society because they, or one of their friends, relatives or neighbors has an outside shot at striking it rich in the big leagues? That's sick.

It's often said that sports heroes need to be role models because kids idolize them. That's confused too. I learned to love sports because my dad loved sports. Yeah, games are fun to play when you're a kid and have time and energy to play them, but the social meaning of sports is not hard-wired into kids' natures – it's acquired from adults. It is certainly childish to assume that athletic virtue goes hand in hand with other virtues – and therefore kids are more susceptible to that confusion. But the only thing stopping us from carefully explaining to our children that star athletes can be bad people – a fact of life that we somehow manage to accept and eventually explain to our children in the case of star actors – is our own childish and therefore neurotic refusal as adults to acknowledge that fact. It's the grownups who idolize the sports heroes, and our kids pick that up from us.

Why don't we just let ballplayers be ballplayers, and not load them up with all these phony -- and inconsistently applied -- moral character requirements? I take up that question in the next post...


Wednesday, March 23, 2005


Is steroid use morally wrong?

Part III of V on steroid use in baseball

Deterrence is never perfectly effective, and is often ineffective; and by logical necessity, steroid penalties will only be imposed when the deterrent effect of those penalties has failed in an individual case. We then consider making the penalties stiffer, even in the face of evidence that the deterrent purpose of the penalties is ineffective. Rather than seeking other preventive solutions, we keep the penalties as they are and simply shift te goal of the penalty, from deterrence to punishment of evil. Therefore, the rule breaker becomes evil, even though the original purpose of the rule may have been to protect the rule breaker from hurting himself. The demonization of the rule breaker serves a two-fold purpose – both to justify the imperfectly effective deterrent and to add the further deterrent of social stigma to the formal penalty of suspension, fines, jail, or whatever. This is the approach we've taken to use of illegal drugs, among other things. And steroids are just the latest example.

Here's where our thinking always goes off the rails. We need to build up a whole ideological superstructure about how steroid use is immoral. This is where you have discussions of "protecting the integrity of the game," "wiping out the records" of steroid users, and so forth.

Steroid use doesn't physically injure non-users in baseball (though perhaps it does indirectly in football and other full contact sports). Steroid use is self-destructive, which is different from evil.

The most obvious basis for claiming that steroid use is immoral is that it is "cheating," in the sense that steroid use breaks the rules to give the user a performance edge. But why is that immoral or evil? Athletes have looked for new ways to get an edge on their competitors throughout the history of sports. Often the rules will ban these tricks of the trade, transforming their continued use into cheating, but unless the competitive trick involves inflicting physical harm on other competitors, the bans are not justified on the ground that the behavior is inherently evil. Many rules are imposed simply for the aesthetic purpose of "restoring competitive balance" to the game. Pitching a scuffed baseball is not inherently "evil," but it is cheating, because it was banned by a rule intended to reduce the dominance of pitching in baseball games.

Perhaps steroid use is dishonorable or unvirtuous because it shortcuts the hard work which, we believe, "earns" the "reward" of athletic success. But that theory is so confused it's hard to know where to begin. Just consider:
(1) Barry Bonds, who is alleged to have used illegal performance enhancing substances, works harder at conditioning than almost anyone in the major leagues.

(2) Athletic prowess is to a large degree a natural endowment that is bestowed on people's bodies randomly, or at least not according to desert.

(3) Athletic success depends on a host of random factors having as much to do with opportunities and life circumstances as abilities. Therefore,

(4) Hard work is only loosely correlated with athletic success. Even among those whose opportunities allow them to pursue athletics, countless hard working athletes fail because they lack natural physical ability, and numerous successful athletes allow their natural physical abilities to make up for skimping on work and practice relative to their harder-working competitors.

(5) You could make an argument that someone willing to sacrifice his future health for current athletic success "deserves" that success as much as someone "blessed" with the right body and the right opportunities. The Faustian bargain arguably reflects at least as much determination and "sacrifice" as years of practice and training.
Looked at one way, steroid use reflects a perverted kind of virtue, but you have to wonder whether it's any more perverted than the family and societal forces that drive athletes to competitive obsession – starting with the sports dads and moms who get into screaming fights with other spectators' at their 8-year-old kids' games.


Tuesday, March 22, 2005


The National Pastime: Field of Dreams or Garden of Good and Evil?

Part II of V on steroid use in baseball

The House committee hearings on steroid use in Major League Baseball are probably mere Congressional gasbagging. Though Congress was not wrong to hold the hearings, since it seems clear that baseball is unable to fix its own problem, it's hard to imagine the steroid hearings leading to anything more than the brokering of a largely cosmetic deal between baseball officialdom and Congressional grandstanders, with the penalties for steroid use being tweaked slightly upward.

Yet I wish the hearings would have continued for many weeks. At least they would have had the virtue of distracting Congress from pursuing actual legislative tasks, such as Social Security privatization, "tort reform," confirmation of Bush judicial nominees, bankruptcy "reform" to help credit card companies, and interfering with the right to die. Oops, they did manage to slip in those last two.

The steroid hearings are also strangely interesting because they bring together two of my favorite aspects of American national neurosis: our excessive sentimentality and irrationality about our heroes, on the one hand, and our criminals on the other.

It's worth going back and asking why steroids are illegal. The good reason for banning steroids is that they raise a classic regulatory health problem. They pose a serious health risk to consumers (professional and wanna-be professional athletes), but those consumers have a powerful incentive to use them: they improve their chances for athletic success, and winning the approval, adulation and riches our society bestows on successful athletes.

The temptation to make the Faustian devil's bargain – trading long term values (one's soul in the Faust myth, one's future health in the steroid reality) for short term gain – is always powerful. (And not, I would add, always illegal. The entire Bush Administration approach to public policy – on energy, the environment, finance, the economy – seems to be based on yielding to the Faustian temptation.)

Steroids should be banned to protect athletes from themselves, and it may be that the optimal regulatory approach is to impose stiff deterrent penalties on the athletes themselves. If illegal steroid use gives athletes an edge in game performance, suspend them from playing in games. If steroid use has helped an athlete win higher salaries than his peers who refrained from steroid use, take some of that salary back.

But why do we have to build steroid use into some great morality play in which evil steroid cheaters undercut our virtuous baseball heroes and thus undermine the "integrity" of the game? More on that to follow...



The Mind of Congress

My friend L left this message on my answering machine this morning:
Q. What is going on with Congress and this Schiavo thing? Are they insane, or what? Have they lost their minds?
Yes, L, the majority of Congress have in fact lost their minds. I'll get around to blogging about that in more detail shortly, but I'm still dealing with Congress's mere neurosis over steroid use in baseball.

It turns out that I have a lot to say about steroid use in baseball. Please bear with me for the continuation of what turns out to be a multi-part series.


Monday, March 21, 2005



Part I of V on steroid use in baseball
"If they started in 1992 or 1993 illegally using steroids, wipe all of their records out. Take them away. They don't deserve them. Go ask Henry Aaron. Go ask the family of Roger Maris. Go ask all of the people that played without enhanced drugs if they would like their records compared with the current records."
-- Senator Jim Bunning (R-Kentucky), testifying at the House hearings on steroids in baseball.

The notion that a player's records should be "wiped out" reflects a deep confusion about what the baseball "records" mean. (This is so whether Bunning means "records" to refer simply to a player's totals in one or more statistical categories or to "the record" as in a league leading total for a season or an all time leading total in baseball history.)

Baseball records are a factual record of player performance that function as (1) an aid to memory, (2) a basis to compare the abilities of current players, and (3) a basis to compare the abilities of players across time.

Bunning seems to think that baseball records are some sort of honorary award, but such a function would be, at best, a distant fourth in terms of its importance and its fit with the logic of baseball records-keeping.

The "home run crown," for instance, is simply a phrase describing the fact of hitting the most home runs in a season. It's not an Olympic gold medal bestowed in an honorific ceremony. To be sure, Olympic medals are intended to go to the athlete who wins an event with the best time or distance or whatever, but the medal is not the time or distance achieved. This feature makes the decision to strip an athlete of a medal after the fact less bizarre than the idea of "wiping out" baseball records.

Baseball records record events and statistics that counted in games. The Yankees are not going to be stripped of runs created by Jason Giambi's hits, or of wins created by those runs. Even if Giambi (or McGwire or Bonds) are deemed to have "cheated" by taking illegal performance enhancing substances, they hit the home runs that they hit. To "wipe out their records" is in an important sense simply as bizarre as a decree to wipe out our memories of their play.

Bunning's objection about the unfairness of comparing the records of steroid users to players of his (1950s-60s) or earlier eras rings somewhat hollow, and indeed smacks of the bitter grousing that one hears from retired athletes across sports. Anyone with an ounce of historical sense knows that baseball statistics are a faulty basis for player comparisons over time. The game has changed dramatically during the time period in which such comparisons are made, and in ways that have direct impact on "the records."

Frank Baker, third baseman for the Philadelphia Athletics in the 1900s and 1910s, was one of the foremost home run hitters of the dead ball era but never hit more than 14 homers in a season. He certainly had reason to gripe about the bright, new tightly-wound and frequently changed baseballs of the 1920s that Babe Ruth hit out by the dozens.

Prior to 1920, it was legal for pitchers to doctor the baseball with spit, vaseline, tobacco juice or sandpaper. Since 1920, that has constituted "cheating," though numerous pitchers prided themselves on getting away with such cheating, such as notorious spitballer, and Baseball Hall of Famer, Gaylord Perry.

In former times, Major League hitters used heavy bats with thick handles. Today, hitters have discovered that thinner handles and somewhat lighter bats generate more bat speed and more home runs. It's not inconceivable that MLB could place limits on the width ratio of bat handles to bat heads, such that the use of certain shapes of bat will become cheating.

Which raises another point: Major League Baseball has repeatedly manipulated rules and practices, often to create fewer or more runs, always to create fan interest. The ball has been changed, ballpark fences have been moved in and out, grass has been changed to turf and back, the pitching mound has been lowered, the strike zone has been raised, lowered, expanded and contracted. Teams have changed cities, and expansion has led to twice as many Major League clubs now as there were 50 years ago. All of these features affect player performance and "records."

And of course, the athletes themselves change. Most experts agree that the athletic ability of today's players is on the whole significantly greater than it was many years ago, due to improved diet, conditioning and coaching regimens.

Bunning now makes a shibboleth out of Roger Maris's 61 home runs, but he pitched in the AL that season and should remember that many people both among baseball fandom and officialdom did not want Maris to break Babe Ruth's record. And when he did, Major League Baseball, in its wisdom, decreed that Maris's home run "record" would have an asterisk in the "official record books" to signify that his 61 home runs surpassed Ruth's 60 homers only in a qualified sense: Maris hit his 61 in the modern 162 game season, whereas Ruth played in an era of 154 game seasons.

A few years ago, that asterisk was properly given up as idiocy. I think it would be further idiocy to put asterisks next to Mark McGwire's 70 home runs, or Barry Bonds' 73, or any accomplishments by players found to have used illegal steroids, let alone to "wipe out" those records.

Don't get me wrong. I think steroids should be banned from baseball -- because they are a serious health hazard -- and the powerful incentives for players to use them need to be offset by heavy deterrent penalties. But the penalties should be prospective – lengthy suspensions and stiff financial penalties.

Wiping out records – that's just Orwellian. We're capable of distinguishing Babe Ruth's 60 homers from Frank Baker's 14 and from Roger Maris's 61; and we're able to cabin today's records as stemming from an era of bloated offensive statistics, driven in part by the use of illegal steroids. We don't need your damn asterisks, and we don't need your damn "wiping out" of records to tell us how to place Giambi's or McGwire's or Bonds's records in context. You guys screwed up, but the records, they're for us fans. Don't mess with our heads.


Sunday, March 20, 2005


An apology

At my age, I was about as sure as one can ever can be about such things that I would never again in my life have the feeling of a 13 year old exposed for having committed a foolish prank. But I just had an eye-opening flashback to seventh grade, when my friend and I were called down to the principal's office for using actual hard liquor as a prop in the western saloon scene in a seventh grade class play.

Check out N.Z. Bear's comment (on Marginal Utility, here and on the TTLB blog), explaining why he has suspended CM and MU from the ecosystem. Here is the gist of it:
Yes, it is possible to “game the system” when bloggers collude. ... The Ecosystem has existed in one form or another for well over two years. This stunt is nothing new: it has been done before, and it will be done again. In the end, there is no technical solution to guarantee cheating cannot occur: but what is guaranteed is that there are plenty of people watching the Ecosystem who will let me know if they see someone attempting to game the system. In the end, it is the community itself that assures a fair playing field, not my code.

I put a great deal of effort into the Ecosystem, and attempt to provide as accurate a guage of weblog’s popularity as is possible to the entire blogging community. If you bothered to read The Truth Laid Bear, you would know that there are no “Ecosystem(‘s) programmers” – there is just me. You’d also know that I’m getting married in just a few weeks, and not surprisingly, don’t really have time for this right now.

Bottom line: both Marginal Utility and The Columnist Manifesto are now banned from the Ecosystem. If you are willing to apologize for the inconvenience caused to both myself and those who value the Ecosystem as a resource, I’ll consider removing the suspension sometime down the line, probably after my wedding. Let me know your decision.
NZ is right of course. I am sorry. He provides this service to people who value it, my prank was a time-wasting irritation, and it was not even original. But what makes me feel most like a 13-year old is NZ's measured, mature response. Not "I will hunt you down in the blogosphere and kill you," but an eye-rolling sigh, an explanation and a request for an apology. What a mensch!

NZ, I apologize. Don't worry about restoring me to the ecosystem. Congratulations on your upcoming wedding.




The TTLB ecosystem has hunted down this blog, as well as Marginal Utility and expelled us from the ecosystem!
This blog was not found or has been suspended from the Ecosystem.
So says TTLB. Note too how my sidebar now refers to me as a " " in the TTLB ecosystem. couldn't they have inserted something cute like "extinct fossil"?

Anyway, I guess (1) we had it coming, and 2) you have to have a lot more technical ability than I do to outwit cyberspace.


Saturday, March 19, 2005


My video store is cool

Coincidence? I think not...

I made two trips to my video store tonight. The first was to return Mr. 3000, and rent Around the Bend. Mr. 3000 was great, by the way -- much better than I expected, probably the most enjoyable baseball movie I've ever seen (with the possible exception of Eight Men Out). Most baseball movies look very hokey because they get actors who look like they've never swung a bat in their lives or who use pitching motions imitated from some old Bugs Bunny episode. Among its other virtues, Mr. 3000 was realistic down to the spitting and sunflower-seed-chewing.

Around the Bend was so bad I stopped watching after 15 minutes -- a cloying example of the "quirky family comedy-melodrama" that makes the common mistake of that genre of expecting you to care about some weird people's stupid sh*t before giving you a good reason to like any of them. It's too bad, because the movie co-starred Christopher Walken, whom I really like. Also, I'm trying to confirm a possible "urban legend" about Walken, that he -- a trained dancer -- works in at least a couple of dance steps into every movie part he does. He didn't dance in the first 15 minutes, and I didn't feel like fast forwarding.

The second trip to the video store was to return Around the Bend.

They're always playing one of their movies at my video store, and on the first trip it was Don't Look Back, the classic Bob Dylan concert-road movie that is worth seeing for many reasons, not the least of which is to see that prematurely gnarly, twangy voice emerging from that fresh-faced Jewish kid.

When I returned later that evening they were watching Wayne's World. I joked that there was no discernable theme governing the Don't Look Back-Wayne's World double bill, but then the video-barista behind the counter explained:
Well, that's what I thought, until I realized that that folk singer Donovan appears in Don't Look Back, and his daughter is Ione Skye, who has a bit part in Wayne's World as Rob Lowe's girlfriend.

As if that isn't enough, one of the main supporting characters in Mr. 3000, the hero's rival, is named "T-Rex Pennebaker." Check out the name of the director of Don't Look Back: D. A. Pennebaker. How Twilight Zone is that?


Friday, March 18, 2005


Baseball stories

Curt Shilling
[to reporters last year]: There is rampant steroid use in baseball.
[before Congress]: There is very little steroid use in baseball.

Jose Canseco
[in his book Juiced]: Steroids are not dangerous and should not be illegal.
[before Congress]: Steroids are dangerous and should be banned.

Rafael Palmeiro
As reported by ESPN, back in 2002 when Raffy first signed up to become a spokesman for Viagra:
After his agent says Palmiero doesn't suffer from erectile dysfunction, Palmiero issues a contradictory statement: "The truth is, I, like many others, do have occasional problems. I do, when needed, take Viagra."



Baseball Highlights: Testimony from the Steroids Hearings

[Proceedings before the Committee on Government Reform, United States House of Representatives. The witness: Rafael Palmiero, First baseman, Baltimore Orioles.]
HOUSE MEMBER: Mr. Palmiero, have you ever used steroids?

PALMIERO: No, Congressman, I have never used illegal steroids.

HOUSE MEMBER: Never used illegal steroids. Have you ever used performance enhancing drugs of any kind?

PALMIERO: Er.... can you please say what you mean by "performance enhancing"?


Thursday, March 17, 2005



Project Bozzo came to an end when Marginal Utility reached "large mammal" status and became the 130-somethingth ranked blog in the TTLB ecosystem. I topped out at "adorable rodent," or as the TTLB ecosystem puts it, "I'm a adorable rodent." (Couldn't this sophisticated web search enterprise have created some code that would change it to "I'm an adorable rodent"?)

Anyway, since links counted by TTLB expire over time, there will be an inevitable reversal of the evolutionary climb absent some effort to refresh the links. Bozzo has already slipped back to "maruading marsupial." Any day now I will find my self reduced to "slithering reptile" or "crawly amphibian."

I'm reminded of Flowers for Algernon ("Charley," in the movie version), the sci-fi story in which a developmentally disabled man takes some medication that raises his IQ to Mensa levels. His hot mensa-level doctor falls in love with him. Only the medicine wears off, and he pathetically slips back to his former low-IQ self.

I suppose all of you who adored me because I was an adorable rodent won't love me anymore...


Oh, what the heck. Here's one more just for old time's sake:
Bozzo bozzo bozzo bozzo bozzo bozzo bozzo bozzo bozzo bozzo Bozzo bozzo bozzo bozzo bozzo bozzo bozzo bozzo bozzobozzoAssuredly, a frivolous use of time. But, it was fun looking at the Early Bozzo archives. Now, alas, it's back to drudgery.



Annals of Broadway Innovation

From today's New York Times:
Long considered one of the most innovative Broadway production houses, with a string of hits in the 1990s including "Guys and Dolls," "Hamlet" and "The Who's Tommy," [Dodger Theatricals, Ltd.] are facing a financial crunch.
Hey, I've got a great new script for you! It's called "Cats"...


Wednesday, March 16, 2005


A stand for principle

During my little health care crisis last week, I seriously considered bringing my cell phone into the classroom. This momentous decision was occasioned by perceived medical necessity. I was essentially on "telephone standby" with my treating health care professionals, who were going to call me – on my cell phone – either to make an appointment for an office visit that day or else advise me that they would simply phone in a prescription to my pharmacy. For various reasons I don't care to explain, I felt there was some degree of urgency in receiving this call, which did not come as the start time for my hour-long class approached. If I were to miss the call, I'd be unable to return the resulting voice mail message until the lunch hour, increasing the likelihood that I would not complete my medical business that day.

How simple it would be to announce to my students at the start of class that there was a chance I would receive an urgent phone call during the class. I would explain that the circumstances were somewhat unique and unlikely to recur. It would be a one time thing, interrupting class for no more than a brief moment. I would make a charming, self-deprecating joke. If the call were to come, I would say excuse me, hurry from the room, and be back before the students would even have a chance to surf to eBay.

But would it be a one time thing? Once I broke the cell phone barrier, what other "urgent" calls would I need to take during class? And could I, with any moral authority, demand that my students turn off their own cell phones in class? Might I be embarking on a slippery slope?

I find cell phones to be a regrettable technology. Their convenience is undeniable – nothing beats whipping out the ol' cell when you "have to" make a quick call, and I have no nostalgia whatever for the panic-riddled detour down city streets searching desperately for a pay phone in order to make a grace-saving call to your waiting date, only to find that the phone on the first block is ripped out, the phone on the second block is out of order, the phone on the third block eats your quarter(s) and the phone on the fourth block – all out of your way – works, but you've run out of change, so you run two more blocks to the corner store where they don't give you change, so you pick out a pack of gum, but you realize it costs 81 cents with tax, which won't yield enough change for the phone....

But what about the down sides? What about the deplorable environmental effects by thousands of 100-foot cell phone transmitters, sending out electromagnetic waves that are responsible for massive bird kills? What about the brain cancer risks that the cell phone companies, in their contracts, say don't exist but nevertheless you are warned, so use the cell phone at your own risk?

What about the deplorable effect on manners – people talking in waiting areas more than twice as loudly as they would if their interlocutor were seated next to them? People interrupting their conversation with you, their meal with you, their sexual intercourse with you, because they have to take the call, the call that somehow never had to be taken in the old days when the phone didn't travel about on the person?

What about the nervous inability to be quiet with oneself for a moment, the cell phone conversation becoming a placeholder for nervous fidgeting, like the cigarette?

What about the unbearable self importance? I am so important, I must communicate with my office from the doctor's office waiting room, the airport departure lounge, the rental car shuttle? When the truth of the matter is that NO CONVERSATION OF ANY PROFESSIONAL IMPORTANCE EVER TAKES PLACE ON A CELL PHONE in a public place? Because, important professional matters are typical confidential, so that any business matters that can safely be broadcast to everyone in a 10 yard radius in a crowded waiting area – as self important as they may seem – are not really important in any objective sense.

Which brings me back to my classroom. What would I have done in the days before cell phones with this waiting call? Would I have hunted down a 50-yard telephone extension cord and brought a phone into class? Don't be absurd. Would I have directed the call to the law school receptionist and asked him to interrupt my class with a signal that my very important call had come through? No, getting the call during class would not have been important enough for that. Ah.

So the truth is that technology creates its own sense of urgency. Before there were telephones in cars for ordinary folks, important phone calls could wait until you got out of your car to the office with the phone. But now, it's somehow vital that you have your cell phone on so you can be reached in your car -- or your classroom.

No, I decided. That will not do. I will not carry a cell phone into my class.

And, by the way, the call didn't come in, and I have lived to tell about it.



Summers' Premiership Collapses in No Confidence Vote

Harvard trustees to form new government

This headline is just a joke, which you'd realize is VERY FUNNY if you knew the mechanics of parliamentary government.

Actually, the Harvard faculty's "vo no co" (vote of no confidence) in University President Larry Summers, cool as it may be, also has a kind of pompous, self-important edge to it.

Why not just say, "Harvard Professors, in Straw Poll, Say Their Boss An Asshole."


Tuesday, March 15, 2005


Social Security Saved by Supersizing?

Has the fast food/junk food industry quietly solved our Social Security problem?

If we can just find a way to make it to, say, 2045 with the Social Security system intact, the Social Security trust fund should experience a major rebound as current 20-somethings and youger hit retirement age. After a lifetime of funding Social Security with payroll taxes during their productive years, they will die off in late middle age -- just before they start collecting their checks -- from heart disease, obesity-related ailments, and other maladies caused by their steady diet of high fat fast food and junk food crammed with transfatty acids and high fructose corn syrup.

I don't know who thought that one up, but it's diabolically clever.


Monday, March 14, 2005


Dating insights from world renowned social scientists

What do Jeremy Freese and Karl Marx know that the rest of us should know?

World famous yet still youthful social scientist Jeremy Freese recently offered this insight into "romantic success":
in Heterosexual World, ... boys and girls are handed different roadmaps marking out the alternative routes to romantic success. Roughly, at least, the prevailing picture still seems to be that, if you are a woman, you can either (1) Be Attractive or (2) Be Amenable, where (2) can take on a variety of different meanings depending on the socio-cultural-lifecoursical situation. Meanwhile, for men, you can either (1) Be Attractive or (2) Be Accomplished.
160 years previously, at a stage of his career only slightly less advanced than Jeremy's, up-and-coming social scientist Karl Marx, wrote this:
That which is for me through the medium of money – that for which I can pay (i.e., which money can buy) – that am I, the possessor of the money. The extent of the power of money is the extent of my power.... I am ugly, but I can buy for myself the most beautiful of women. Therefore I am not ugly, for the effect of ugliness – it’s deterrent power – is nullified by money. [Marx, Economic and Philosophic Manuscripts of 1844]
To summarize the "road maps" for male romantic success:
Freese: (1) be attractive or (2) be accomplished.
Marx: (1) be attractive or (2) be wealthy.
Wealth being the primary form of accomplishment in Marx's heyday-of-industrial-capitalism milieu, they're pretty much saying the same thing.

Freese's neo-Marxian post was an extended riff on the problem of male shortness, in which accomplishment (for Marx, wealth) compensates for lack of physical stature.

How tall was Karl Marx? According to the Spartacus website, Marx was
of medium height, broad-shouldered, powerful in build, and vigorous in his movements. His forehead was high and finely shaped, his hair thick and pitch-black, his gaze piercing.
Other than perhaps "hair thick and pitch-black," they could have been describing Professor Freese. One can't help but wonder: is this a question of "great minds think alike," or is there in particular a common perspective among minds similarly housed behind shapely foreheads and carried vigorously on broad, powerful shoulders, gazing out at the world from medium height?


Sunday, March 13, 2005


Some musings about universal health care

One of the great disappointments of the 2004 elections is that, while John Kerry would have taken another presidential whack at universal health care, George Bush will keep his promise to pursue a health care policy of "if it don't help my friends, don't fix it."

I recognize health care is a complex issue, and one of the complexities is how to measure the quality of health care. I couldn't tell you whether the health care I'm getting now is better or worse than what I was getting in the good old days, whenever those were. What I can say is that dealing with HMOs is often very frustrating, and that I don't often feel not well cared for from a customer service point of view. When it's your own health that's involved, it's hard not to take that far more personally than, say, lousy service at your auto mechanic. Still, bad customer care is not always the same as bad health care.

My guess is that, when push comes to shove, the main popular resistance to universal health care (opposition in public opinion, as to opposed to opposition from the private health insurance lobby) boils down to inegalitarianism. Sure, there's a lot of rhetoric about being able to choose your own doctor, and avoiding bureaucracy in getting treatment, but the predominance of "managed care" in our current system is making those aspirations a thing of the past even in the absence of a universal health care policy. The real underlying objection is the strong belief that people with more money deserve better health care.

The gut level opposition to universal health care is a fear that a universal system will raise the health care floor, while lowering the level of care available to those better off. This fear is not at all irrational – assuming that high quality health care is a scarce good, people with more money will only have guaranteed access to it in a health care market. If health care were distributed in a more needs-based, rather than means-based way, this guarantee (more money equals better health care) is eroded.

Why this should lead to objections from the great middle class rather than, say, the few percent of Americans who benefit from the Bush tax cuts, is as great a mystery as why many of those same folks vote for Bush and in essence place a stamp of approval on his tax cuts for the wealthy. We can speculate and say either that (1) a large percentage of folks in, say, the 35th income percentile on up are exceedingly optimistic about their chances of winning the lottery one day; or (2) many middle class Americans place themselves above the health care tipping point – the level of health care quality at which a decline would be experienced as more resources go to less financially well off Americans. It's a rational fear made irrational by a total lack of information about the two most relevant data – where is my health care quality on the spectrum of health care in the U.S., and where is the tipping point?

It's interesting (and I admit, wholly unoriginal) to think about the underlying justice issue. On some level, this aspect of universal health care is a smaller piece of a larger social contract that guarantees the value of financial wealth. Wealth means superior access to the good things in life, and a financial system of wealth means that those good things must be for sale in a market. Good health and a longer life are "good things." To offer good health and longer life on an egalitarian basis, irrespective of wealth, diminishes wealth somewhat. Any social good distributed on an egalitarian, rather than market basis, becomes something that "money can't buy" and thus reduces the purchasing power of financial wealth.

What's the point of being rich if you can't get better health care? What's the point of being middle class if you can't get better health care than poor people? There are probably only two versions of health care distribution that our society can tolerate: the plane and the boat. Our current system is probably like a commercial jet liner: first class for the rich, coach for the middle class insured, and the poor just can't afford to fly. Universal health care will be, at best, an early 20th century ocean liner: 1st class, 2d class and steerage.


Saturday, March 12, 2005


My brush with the health care system, part III: Privacy Protection

This stuff didn't come up yesterday, but my HMO encounter brought to mind another of my pet peeves with managed care.

Rather than give us broad ranging health care reform, our Congress gave us a box of bandaids in the form of HIPPA, the Health Insurance Portability and Accountability Act of 1996. HIPPA's best provisions make it easier to carry your health insurance from job to job, without of course redressing the underlying ridiculousness of using the haphazard patchwork of employment benefits as a substitute for a universal health insurance system.

HIPPA also has a number of privacy provisions. The need for health care privacy certainly seems increasingly pressing in the "information age," when (a) all of our health records are now going onto computer systems which raises the specter of all of your ailments becoming available to former Attorney General Ashcroft at the push of a button*; and (b) there is a growing market for increasingly private information by insurance companies, credit reporting companies and god knows who else. My great fear, as I have said before, is that MBNA America Bank will find a way to put together my medical records, my credit card bills and my highly personalized answers to "security questions" (mother's maiden name, name of first dog) to clone me. Then they will sell me stuff and collect the bills by dealing directly with my clone.

Anyway, I digress. I don't know exactly how HIPPA's privacy provisions actually help me (I should really learn about that one of these days), unless you consider it a boon to your privacy that now every doctor's office and pharmacy has to give you a big honkin' "privacy form" explaining (rather opaquely) your rights and the various but limited ways they are allowed to use your health information, as well as a form that you have to sign saying that you received the privacy form.

Unfortunately, this impressive display of concern for privacy is somewhat offset by the fact that the HMO reception desk is actually run with all the privacy protection of a deli counter. A crowd of patients are standing alongside you being helped by other receptionists, or waiting behind you close enough to be within earshot. The "privacy screens" (if any! My current HMO has none) afford less privacy than the purely ceremonial ones sometimes placed between urinals. The receptionist then asks a series of questions eliciting highly confidential information and then finds a way to blurt out at least some of it out as if she were relaying a sandwich order to the guy at the cold cut slicer. For instance:
RECEPTIONIST: What is your current address?

PATIENT: [It's the same as it has been the last six years, and the same as it's been each and every one of the 14 times I've been here in that time frame.] 123 Main Street, Anywhere USA.

RECEPTIONIST: Social security number?

PATIENT: [Glancing around nervously at nearby patients.] Er... 123-45-6789.

RECEPTIONIST: Date of birth?

PATIENT: [Trying to lower voice a bit more] January 1, 1967.
Having completed the colloquy that enables at least half a dozen bystanders to commit identity theft on you, the receptionist gets to the heart of the matter.
RECEPTIONIST: What are you seeing the doctor about today?

PATIENT: Ummmm.... [inaudible mumble].

RECEPTIONIST: I'm sorry could you speak up?

PATIENT: [In as discreet a whisper as possible.] Genital warts.

RECEPTIONIST: [In full voice]: Genital warts? Okay. [Typing your answer into the computer] Gen – it – tal ... WARTS. Here is a form advising you of your privacy rights, and another form for you to sign saying that we've given you the privacy form. Please take a seat along the wall, and the nurse will be with you shortly.
Here's the funny thing. The receptionist already has all the identity theft information on her computer – for some bizarre reason, they always seem to have to re-enter it every time. And as to the "why are you here" information, the receptionist has no need to know. The couple of instances in which I've said, "I'd rather wait and discuss it with the doctor or nurse practitioner," they've said okay. That works on the phone too. Try it some time. Indeed, next time I'm asked why I'm there at the clinic, I'm going to say, "I'd rather not discuss it here at the deli counter."

*I know that Alberto Gonzalez is now the Attorney General, but somehow it's easier to imagine Ashcroft having the prurient interest to push that button -- Gonzalez being too busy finding loopholes in the Geneva Convention.

* * *


Evidence 101

One of the subjects I teach is Evidence, so I though I would use my expertise to shed some light on the recent development in the Michael Jackson trial. Apparently, I should revise my course curriculum to include this principle: none of the other rules of Evidence will matter in your case if you client shows up for his trial wearing pajamas.

Nate at Tornado Watch wittily evokes the O.J. Simpson case with this comment on Jackson's:
This trial is ridiculous. All that is missing at this point is for Michael's entourage to go cruising slowly down the 403 [sic] with a squadron of police cars in pursuit, while on-lookers flock the side of the highway to hold up signs with witty catch phrases[.]
As an Evidence professor, I have to point out that the infamous "low speed chase" resulting in O.J. Simpson's arrest occurred "the 405" (Interstate 405). Is Nate making a clever evidence pun here, a reference to Federal Rule of Evidence 403, which allows exclusion of evidence whose probative value is substantially outweighed by a high risk of unfair prejudice? I.e., the Jackson defense team is "cruising" for unfair prejudice -- in hope of a mistrial? Such a strategy could well to put Jackson on highway 101 straight up to San Quentin State Penitentiary.


Friday, March 11, 2005


My brush with the health care system, part II: A trip to the pharmacy

As I said in my last post, getting the prescription on the basis of, essentially, a self-diagnosis, was a very new experience for me that struck me as cutting edge health care. But the pharmacy where my prescription was called in was very old fashioned. It's a small family-run independent pharmacy, right in my neighborhood. The medications are kept in a sort of demi-wall of lengthwise wooden drawers, each marked with the first few letters of some medication, in alphabetical sequence. It was so damn cute, I could hardly stand it – I determined on the spot to get all my prescriptions filled there from now on.

They had the prescription, but hadn't filled it when I walked up to the pharmacy counter, so I saw them do it. Well, sort of. Like any pharmacy, they work behind a desk with a privacy screen so you can't actually see them put the pills in the bottle. At this pharmacy, I was able to see them pull out the drawer with my drug, which is more than you see at most pharmacies, where the whole process is hidden by privacy screens or partitions.

The tradition of hiding the pharmacy process is kind of strange when you think about it. Most of us probably know what the process looks like, having seen it in stock footage on local news broadcasts. They take the pills out of a large container and put them in a small one, sticking a label on it with your name, the drug's name, dosage, etc. It's not like they grind up the powders themselves back there with a mortar and pestle and roll pills the way they did 100 years ago. What is it exactly we're not supposed to see? Will the medicine seem ineffectual to us if we knew that the prescription was not specially made to order for us by a team of trained scientists and delivered by diplomatic courier direct to the pharmacy? Will we think it's candy, or a placebo, just because it looks like it comes from a candy or bulk food bin?

I realize that open kitchens in restaurants are more the exception than the rule, but that just encourages bad practices, doesn't it? What are those pharmacists doing back their – spitting into our drugs? (Or worse... you Fight Club fans know what I mean, don't you?)

Anyway, I could tell that they had the pill bottle filled in about two minutes. But for some reason, I waited and waited. The pharmacist and his assistant asked for my prescription drug card, hovered over a computer, typed, swore, asked for my prescription drug card again, typed some more, laughed. Several more minutes went by. Then I heard a computer printer – an old one. Perhaps a dot matrix printer. (Can you still get ink for those?) It printed. And printed. I think I waited 15 to 20 minutes in all, so the time for getting my prescription filled consisted of 10-15% pharmacology (transferring the proper number of pills from the candy bin to the pill bottle and labelling the pill bottle) and 85-90% health care bureaucracy.

What was the document they gave from that interminable print job? Why, the HIPPA privacy notice, of course.



My brush with the health care system, part I: Triage

I relearn an important lesson about managed care: the squeaky wheel gets the grease.

I was sick today and had to deal with my HMO.

Maybe it was always true, but it is certainly true now, under managed care: when your pain doesn't impress them, make it their pain. One would like to think that you could just say what your symptoms are and then get the correct amount of attention. I have no problem with triage. When I have a medical problem I need treated without an appointment, if my problem can wait, then fit me in later after the more urgent cases.

But you get the feeling that under our current system of managed care, the triage system bases its decisions only in part on your medical condition, and in part on your willingness to fight over the phone.

The problem begins with the phone tree itself. Any time you call a clinic, there seem to be two levels of non-medically-trained people that managed care interposes between you and a trained health care practitioner. There's a general receptionist and an appointments coordinator. They seem to have received training in how to sound all medical and professional over the phone, and when they ask why you want to see the doctor, you naturally want to tell them. This can be a mistake, because it feeds the misperception that they will be impressed by your situation and help find a way to get you treated quickly. In fact, their real job is to put you off until the next opening with your regular doctor, in about six weeks.

Question: "did your medical receptionist course teach you whether the large pulsating welt that developed on my arm in the past three hours could safely wait six weeks?"

You will often have to demand to speak to the "duty nurse" at least twice in order to get a person with actual health-care training (as opposed to health care management training) on the phone. Then things start to happen.

In my case, when I described the symptoms to the nurse, together with my own self-diagnosis, she agreed that it should be dealt with today. She was going to talk with the doctor and get back to me.

Two hours later I called again. The nurse said, "the doctor and I were just about to discuss your situation, when he got a phone call. I'll get right back to you."

An hour and fifteen minutes later, I called again. The nurse said, "we're taking these one at a time, and we haven't gotten to yours yet." I said, in a not unfriendly, but firm way, "look it's pretty clear what these symptoms are, and they're getting worse by the hour."

At that point, I decided to proceed on two separate tracks. I got in my car and headed off to urgent care walk-in clinic. On my way, the cell phone rang. It was the nurse. Based on the information I had previously given her over the telephone, which she relayed to the doctor, the doctor had gone ahead and phoned in a prescription for me. End of story.

I have mixed feelings about this story. I actually like my doctor, who is a practitioner in the new mode of patient empowerment -- tell the patient what you know, and give advice, rather than hiding the ball and being overbearing. It was certainly convenient to have the prescription phoned in based on what amounted to a description of symptoms mixed with a self-diagnosis that sounded right to the professionals on the other end of the line. And yet, as I popped my pills, I had a bit of disquiet in the back of my mind... shouldn't he at least have looked at me?


Wednesday, March 09, 2005


The verdict of history: a prediction

Wherein I prove that I can say something nice about President Bush

He was good to his friends.



The Visa / MBNA-America Bankruptcy Reform Act of 2005

Why not allow – nay, require – legislation to bear the names of its corporate sponsors?

The latest feather in the Bush Administration's cap is the new bankruptcy bill, which passed the Senate and is expected to breeze through the House. Given the Orwellian name, "Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, President Bush can't wait to sign it. (Clinton killed a similar bill in the final days of his presidency.)

The main feature of the bill is that many consumers who have gotten in over their heads with credit card debt will no longer be able to cancel that debt in bankruptcy under the Chapter 7 "fresh start" provision, but will instead have to get a "repayment plan," under Chapter 13, spending potentially the rest of their lives paying it off. The rhetoric of the bankruptcy "reform" bill's Republican backers is full of talk of "personal responsibility," which is all well and good until you observe that they defeated a Democratic amendment to close this loophole (as summarized by the Daily Kos):

Laws inspired by the Enron debacle may hold the officers of a corporation personally liable for the deceptive financial practices, and ensuing disasters, of their corporation. However -- luckily for prospective corporate criminals -- there are in the United States a handful of states, such as Utah, where you may stash your assets in a "protected trust" and render them untouchable by bankruptcy laws -- and you don't have to be a resident of those states to take advantage of those laws.

The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, while purporting to strengthen bankruptcy laws against abuse, specifically provides exemptions for those asset protection trusts.
I've previously joked about proposed privatization of the federal government in which naming rights for United States landmarks would go to corporate donors – e.g., the MBNA American White House.

A more serious proposal is to have corporate naming rights for legislation. Not to allow corporate naming rights, but to require it – as a disclosure device. Consider that
the main lobbying forces for the bill – a coalition that included Visa, MasterCard, the American Bankers Association, MBNA America, Capital One, Citicorp, the Ford Motor Credit Company and the General Motors Acceptance Corporation – spent more than $40 million in political fund-raising efforts and many millions more on lobbying efforts since 1989... [NY Times]
Isn't it only fair that we know whom to thank for all this great new "consumer protection"?


Monday, March 07, 2005


The Script Doctor

Why didn't they call me?

Not that anyone has ever told me I "have to" see Something's Gotta Give, but I had decided not to see it, and had successfully missed it in theatres and fended it off as a home DVD rental suggestion. Then, I caught it while surfing cable, and my curiosity got the better of me -- I watched 20 minutes or so.

Something's Gotta Give is a feel-good movie for the baby boom vanguard, people just hitting 60, and I'm guessing that the original working title for the project was Somebody's Gotta Sleep with Me. I can totally sympathize the need for reassurance that sex continues to be a part of one's life even as one approaches retirement, though I'm not sure I would choose Jack Nicholson and Dianne Keaton as the vessels for carrying that message. More importantly, I think the script could have used some work.

Here's the story line:
Harry Sanborn (Jack Nicholson) is a perennial playboy with a libido much younger than his years. During what was to have been a romantic weekend with his latest infatuation, Marin (Amanda Peet), at her mother's Hamptons beach house, Harry develops chest pains. He winds up being nursed by Marin's reluctant mother, Erica Barry (Diane Keeton) – a successful, divorced New York playwright. In the process, Harry develops more heart pangs – the romantic kind – for Erica, an age appropriate woman whom he finds beguiling.

However, when Harry hesitates, his charming thirty-something doctor (Keanu Reeves) steps in and starts to pursue Erica. And Harry, who has always had the world on a string, starts to find his life unraveling.
Needless to say, hilarity ensues. The Nicholson/ Amanda Peet thing is sort of a barfworthy strain on our credulity, while the Reeves/ Keeton thing is more plausible -- or it would be, if they had cast an actor in the Keanu Reeves part. (While watching Reeves make googoo eyes at Keaton, I kept thinking, "C'mon, Keanu, sell those lines! Sell those lines.")

But the whole thing could have been much improved with the following changes, that are designed to make the movie resonate much more powerfully with the baby-boomer late 50-seomthing demographic:
Harry Sanborn, while recovering from a heart attack, meets Marin, the attractive wife of his thirty-something cardiologist (Keanu Reeves). Marin, angry at her doctor husband (Reeves) for his numerous affairs, indulges her twisted psychology by having a clandestine and ambivalent affair with Harry, which meets the unlikely pair's baser needs while causing them shame and distaste. When friends of Harry, determined to introduce the 60-something bachelor to age appropriate single women, try set him up with successful, divorced playwright Erica Barry -- who turns out to be Marin's mother! -- Marin warns Harry: "If you date my mother, I will destroy you!" Claiming that he is just going through the motions to get his friends off his back, Harry assures Marin that he'll have one bad date with Erica and then never see her again.

But when Harry and Erica fall for each other, and go out on more dates, Marin flies into a rage. She and her husband whisk Erica away to ... Marin, California, where they strong arm Erica into betrothal to another age appropriate man. Harry, in desparation, races across the country in his sports car, culminating in a hilarious wrong-way drive across the Golden Gate Bridge. He finds the church where Erica and her hubby-to-be are about to say "I do" and begins pounding on the church's plate glass windows, shouting "Erica! Err-rrric--cccaaa!" Erica looks up, sighs "Harry!" and the two of them flee the church, running hand in hand to catch a nearby bus. On the bus, Harry has another heart attack, but Erica gives life saving CPR. The movie ends with the couple sitting in the back of the bus, looking happy and yet uncertain...
Oh, and I'd cast Dustin Hoffman in the Nicholson role.


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