Thursday, December 29, 2005


Priors for Attempted Murder, Insanity, an ADA Disability

Joshua Joesephs’ record wasn’t spotless. Whose is? There was that attempted murder, but that was 15 years ago, and anyway he was acquitted by reason of insanity and spent 2 ½ years in the bin, taking the cure. Even a prior assault, on a police officer, had been expunged (whatever that means, it is clearly a point in his favor, as compared to non-expunged). So he didn’t mention those matters when he applied at Pacific Bell for a job as a service technician, installing and repairing phone lines in people's homes. Would you? But when the company found out they unlawfully fired him. Fortunately he was protected by the Americans with Disabilities Act, and the ninth circuit in San Francisco affirmed a $500,000 judgment for him.

"While PacBell's counsel testified that it was her 'belief' that someone who attempted to kill another person should not be in a service technician position," Judge Edward Leavy wrote for the majority, "PacBell introduced no evidence of a written company policy prohibiting employment of person who had committed violent acts.”

The company took the position that it was enough that Josh had tried to kill someone and would be in peoples homes unsupervised. Dissenting Judge Callahan noted that if Josh attacked someone while on the job, the potential liability of Pac Bell would be “obvious and sizable”. Josh’s lawyer said that Josh was no longer a threat because he was cured.

So there you have it. You just can’t discriminate against someone because you think they have a disability, such as being insane or dangerous. You need a written policy that you don’t hire in that instance, and you need to be able to prove that they are, in fact insane or dangerous, or perhaps both, currently. Also, you need to check with your lawyer about the questions on your employment application. It is illegal to ask if a person has been arrested, but OK to ask if he has been "convicted". But can you ask if he has been found not guilty by reason of insanity? Of course not, but it is fun to ask your lawyer to explain things like that.

If you are a homeowner, you probably didn’t know the phone company actually had anyone that would come in your home. I have always heard that their responsibility stops at the pole. Maybe that is not as dumb as I thought.

Monday, December 26, 2005


Complaints Shut Down Accelerated Education

Notwithstanding an outstanding record in improving high school athletes' grade point average, University High is closing at year end. A number of Miami area students had significantly improved their grades in the accelerated learning system, some graduating in as little as three weeks. The athletes were transferring from underperforming high schools in order to get the grades necessary for college eligibility. Moreover, the coaches of outstanding colleges, Tennessee, Auburn, and Florida to name a few, were finding the athletes well prepared to play ball.

The University High system uses a "packet" approach and gets its results without books or classes. The lack of educational accreditation has not been a problem for either the students or the coaches, or, for that matter for the NCAA and the college admission offices. Its founder, Stanley J. Simmons, was previously associated with a college level degree program that attained similar results in helping poor students. In that program an undisclosed misstep landed him in a federal prison camp for 10 months after pleading guilty to mail fraud. The use of the mails is of course an essential element in correspondence courses, placing this type of institution at what some consider an unfair disadvantage.

Two days after a NYT story on the University High "method", NCAA president Myles Brand denounced "diploma mill high schools". In a telephone interview with The Miami Herald, he noted that it was the colleges' responsibility to check out the students the NCAA had cleared. "You can't rely entirely on an outside agency to do that, whether it's the NCAA or otherwise." The NCAA establishes academic guidelines for athletes' eligibility through its clearinghouse, and it has allowed students to use correspondence school courses since 2000. The NCAA also shifted the power to determine which classes count as core courses to high school administrators, leaving the schools to determine their own legitimacy. "We're not the educational accreditation police," Diane Dickman, the NCAA's managing director for membership services, said in September. A committee has been formed.

The school accomplished a lot for the $399 tuition, packets included, and many a good ballplayer has been grateful. In a follow up article the NYT interviewed the present owner, a Mr. Kinney. In October 2002 a temp agency placed him at the school, and, exhibiting the kind of talent the school specializes in, was named its director within a week. He reported that all 28 high school football players he graduated were accepted by colleges, most on athletic scholarships. When Kinney, 27, learned of the NCAA clearing house, he applied and was approved within days. After that, he said, coaches and colleges inundated him with phone calls.

Saturday, December 24, 2005


FBI Invades Privacy Re Radioactive Materials

In yet another intrusion on privacy, it was revealed earlier this week that government agencies have deployed radiation detection equipment not only at ports and subway stations, but also around private property. Radiation alarms have been given to police and fire departments. Worn on the belt like a cell phone, the devices can detect high levels of radiation eminating from private property. A spokesman for the Justice Department claimed these were "passive operations" conducted in a manner "that protects US constitutional rights".

Public outcry over threats to privacy and civil liberties caused the scrapping of the Pentagon's system for tracking terror suspects and Homeland Security's program for screening airline passengers. The same fate may await this program. The Council on American-Islamic Relations claimed that checking for radiation eminating from mosques and private homes constitutes a diminished set of rights for Muslims. The FBI insisted that it "does not target any group based on ethnicity, political or religious belief."

Those that wonder whether anyone should be able to conceal materials for a dirty or nuclear bomb should realize that these items are not the only possible source of detectible radiation. Many homes, particularly those in the mountains, can accumulate radon, a radioactive gas, in their basements. When such accumulations reach lethal levels, they might be detectible by these belt detectors provided to the police and firemen. So how would you like them knocking on your door on such a pretext?

Thursday, December 22, 2005


FEMA Faux Leases Satisfy All Constituencies

What do you do when the Katrina evacuees won't move out of their free hotel accomodatins? A judge extended the deadline to February 7, and the acting FEMA director promised to keep paying after that for at least two weeks after the occupant receives rental assistence, or is denied. The NYT gave the example of South Carolina, which has 200 apartments lined up, and has contracted Ginger Crocker and her team to go from motel to motel to get occupants to sign leases on them.

"The real problem is that many of these people have never lived in a place as nice as a hotel," Ms. Crocker said. "They have cable TV and a telephone and heating and air and maid service, and we're feeding them dinner every night. (There have been complaints that there are too many green beans, but we're working on it)." A free trolley runs by each hotel throughout the day to ferry evacuees to a help center where they can do things like apply for a loan and pick up a donated winter coat.

Ms. Crockers team has obtained 131 signed leases so far, many signed under protest, and only after being told they were under no obligation to actually move in. Since under the latest ruling, FEMA will continue to pay until the signers receive rental assistance, and that doesn't start until they move, and the goal for signed leases is nearing attainment, it looks like success all around.

Wednesday, December 21, 2005


No Plastic Reindeer Defense for Creationism

The establishment clause of the Constitution is in the news again, this time about the school board who decided students needed to consider intelligent design alongside Darwin's effort. In my December 9 entry, we saw that the addition of secular items such as a Frosty the snow man to a manger scene absolved the city of the "pushing" charge. So it seemed to be a good idea to add some secular stuff to the creationism idea, to knock off the pushing, so to speak. So with intelligent design we say "God, heavens no! It could just as well have been designed by a visiting alien or a time traveler." See? No one is pushing any particular designer. That seems plastic enough to me.

Didn't work. Humph, what do you do to get some consistency and predictability out of the courts today? Worse, the decision promises to have repercussions well beyond the limited jurisdiction of that court. Senator Rick Santorum, previously thought to be a go-to guy for the alien and time traveler crowd, said he was withdrawing his affiliation with the Thomas More Law Center, which defended the school board. He said he was troubled by testimony indicating that religion had motivated some board members to adopt the policy.

There are also indications that the ID folks may be in retreat on the alien business, since it is apparent that if God had intended aliens to be on earth, He would have put them here.

Sunday, December 18, 2005


The Economics of Executive Compensation - Chuckles Curve Explained

It is time to bring some simple concepts of economics to bear on the matter of executive compensation. To the uninitiated, CEO salaries may seem high. Remember the $188 million package Dick Grasso got last year for running the NYSE? But that’s Wall Street. The CEO of Goldman Sachs just got about $38 million this year. Out in the hustings plenty of CEOs are making do with $10 million or even less. And oh sure, there are critics. Discussing the proposal of the CEO of bankrupt Delphi to set aside $510 million for the top 600 or so executives while cutting workers base compensation from $25 an hour to $10, Ben Stein in today’s NYT said it put him in mind of a scene from an old gangster movie. There “a certain Abe "Kid Twist" Reles - ably portrayed by Peter Falk - is asked why he always wants more when he already has so much. "Don't ask questions," he shouts in response. "What've you got hands for, huh? Take!".

There might be some basis for criticism if these CEOs had anything to do with setting their own booty level, but all that is determined by the compensation committee of the board, and approved by the whole board, in strict reference to the principles of supply and demands. This will require a little economic reasoning, but like we say, this site provides a learning experience. Let’s take the example of a CEO at $14 million. The committee has actually made three determinations: first, that the CEO they can retain at that level is adequate to the task of running the corporation; second, that it would not be profitable to get anyone better by paying more; and third, it would be less profitable to try to get by with what they could get for less, say $12 million. This is a rigorous application of the now generally accepted “Chuckles Curve”.

Full disclosure: I am a graduate economist, and have stayed very close with my circle of economist buddies. In that circle I am affectionately known as “Chuckles”. Economists are a lot more warm and fuzzy than you might think. Anyway, when I invented the executive compensation algorithm it was inevitable that it would become known as the “Chuckles Curve”. This tool is a refinement of the standard supply and demand curves, and proves that the optimum CEO salary occurs when the incremental dollar of salary is exactly equal to the incremental dollar of corporate profit. Think about it. If you could get $2 more profit by paying $1 more salary, wouldn’t you do it? And if $1 more salary is only going to get you $.50, you cut back, right?

The CC has broader application, as seen in the Delphi situation. The $510 million of those executives is just what is needed to keep them from jumping ship. Having run the company into bankruptcy, they know the mistakes, such as paying $25 an hour to people only worth $10, and are best situated to correct them. Undoubtedly with this experience all 600 could find jobs with higher pay in an afternoon. If that was true of the workers, they wouldn’t be worth just $10. Supply and demand, see?

That should put to rest those critics who argue that CEOs really use their power to set their own compensation by putting their buddies on the board, sitting on each other’s boards and donating to each other’s charities and seeing to it that board compensation and perks are “adequate”. Malarky. If that were so, those guys would be no better than a bunch of pirates.

Saturday, December 17, 2005


Watch Your Sweet Talk

You can go to the M&M Candies web site and order the sweet little tablets with your own message on them! You can say a lot in 2 lines, 8 characters each, so you can see why they couldn't let folks run wild. This great idea got lawyered up a tad with a few restrictions: No product names, business names,celebrity names, specific sports teams, major events, landmarks, religious or political phrases, or names of schools or institutions. Well, there goes Merry Christmas, but it had 9 characters anyway. And don't try slipping Merry Xmas by! And of course, nothing "otherwise inappropriate".

Hard finding the permitted message? Mars offers helpful examples: Instead of "American Fan Co.", try "Time to be cool". Or substitute for "Mount St Helen", "Thar She Blows!" or for "Johns Hopkins", "Marry a doctor".

Hmmm. Hard to see what the lawyers would find objectionable about "Mount St Helens" and they are usually better with words. Maybe this came from the guys who were going to have to fill all the orders? Well, mission accomplished!

Wednesday, December 14, 2005


Mice Receive Human Brain Transplant – Ethical Questions Abound

Salk Institute researchers have injected 100,000 human embryonic stem cells into each of a number of 14 day old mouse embryos, which were subsequently born with human cells making up part of their brain. The director of the Stanford Center for Biomedical Ethics said “The worry is if you humanize them too much you cross certain boundaries”, but he didn’t think they were there yet. The NYT report indicated that researchers were beginning to bump up against what bioethicists call the “yuck factor”. It said some experts envision the possibility of a human mind trapped in an animal head.

There is also the question of the treatment of these partly human mice. How many human cells does it take to make enough of a human to where ending its life becomes a homicide? At one time the common law denied this protection to a fetus until it was “quick”, i.e. developed to the point where it moves within the womb. This obviously is not acceptable today to a significant portion of our society, which considers human life present well before 100,000 cells have accumulated. It is also apparent that, given the life span of the mouse, this human element is never going to get beyond the terrible twos. This would explain the surprising finding that the humanized mice seemed dumber than normal mice.

None of the mice would comment for this blog.

Tuesday, December 13, 2005


You're Doing A Heck Of A Job, Woody!

FEMA is now receiving management assistance from the New York class action lawyers and Louisiana Federal judge Stanwood R. Duval Jr. President Bush has not been to New Orleans for over two months, and when Laura visited there yesterday she encouraged evacuees to “try to settle where they are, and make the best of what they have right now.” It is unclear whether she meant for the hotel residents to be settle until January 7, the previous FEMA move out deadline, or February 7, the new deadline ordered by Stanwood ("Woody" to President Bush) Duval. For those who have not been keeping track, FEMA originally set December 1 as the cutoff date for government paid hotel rooms . After a fuss about the two week notice, the dates were revised to December 15 or January 7, depending upon what state you were staying in. However, FEMA had some difficulty with the question “why?”, so a week later evened it up to January 7 regardless of location.

In an interview Monday with NBC News, President Bush denied that racism had anything to do with the federal response. Many of the area residents are of French extraction, or “coonass” in the vernacular. For those that don’t get around much, the Encyclopedia of Cajun Culture notes the term is of uncertain origin, and of varying degrees of popularity among coonasses, adding that “Cajuns who dislike the term have been known to correct well-meaning outsiders who use the epithet.” You just don’t want that to happen.

Asked what on earth authorized him to adjust the deadline, the Clinton appointee noted the anxiety the vacillations had caused, including the “very real fear” of being without shelter on Christmas [that is a quote, he said Christmas, not “holidays”]. He said he based his authority on the law establishing FEMA, which requires the government to ease suffering and damage caused by natural disasters. In a possibly related development, Google reported that the most popular search last night was for the laws setting up the various federal agencies.

Howard O. Godnick, a partner in the firm that filed the action, said he would monitor the situation and go for another extension if necessary. To those unfamiliar with our legal system and wondering how long poor people can continue to count on the help of the Bar, you will be relieved to know that these cases are generally handled on a contingency basis, and the lawyer fee can be 25 to 33% of the amount recovered. FEMA is still working off its original grant from Congress of $62.3 billion, and more than half is still sitting in its account, waiting for a purpose. So something in the neighborhood of $20 billion could be purposed to secure legal assistance where necessary. That should put your mind at ease, even if you don’t like hotels.

Monday, December 12, 2005


China, Wal-Mart, Huge Engines Of Job Creation

In our November 29 post, Senator Schumer and I took China and Wal-Mart to task for charging prices that are too low. Now it turns out they are HELPING every American by creating thousands of jobs. The reason you didn't know this before is that Sam was slow to create a PR department, befuddledly thinking running a highly efficient distribution system was enough. For heavens sake, Sam, welcome to the spin century. You can't leave unanswered accusations like those from Wake Up Wall-Mart, a union supported group, which say you violate religious values with your low wages. The "Where would Jesus shop?" campaign could be a tough one. Their TV commercial is "Should people of faith shop at Wal-Mart?".

You can't just blame the unions. It is their job to complain about wages, no matter how high or low they are. I once asked my dad, an airline pilot, how he could go on strike when he was already paid so much more than bus drivers. You learn not to challenge union people. He used to make me sit at the table until I ate my cold overcooked brussel sprouts, or until I cried, whatever came first. When I got too old for convincing crying, I had to sit there until my mother started crying. At the time I didn't know that was a primary union weapon, making you sit at the table until you felt like crying.

So now Wal-Mart has a campaign style war room to respond to these tactics. They are stressing that Wal-Mart is a major engine of job growth, creating over 100,000 new jobs a year. This is a little lower caliber spin than we have grown to expect from government and entities of that size, but heck, they are just getting going and they have a lot of ground to cover. Their web site now boldly challenges the "growing misperception" that they have a policy prohibiting employees (associates) from wishing people "Merry Christmas". They can say "Happy Hanukkah, Happy Kwanzaa, Happy Three Kings’ Day, Merry Christmas" or whatever they want. As for where Jesus would shop, surely there is promise in the loaves and fishes story.

The job creation position seems solid. Everyone knows that when a competing retailer shuts down, Wal-Mart has to put on more help. With China the effect is harder to explain, and their war room doesn't seem to be focused on it. Clearly China is not getting the credit it deserves. Think about it. When Senator Chuck and I complained about them keeping interest rates too low, we should have considered the effect on jobs. Low rates mean more borrowing for everything from corporate takeovers to consumer purchases, all of which keep the economy moving. And creates jobs. Just ask your investment banker.

Friday, December 09, 2005


Judge Alito Proves Unreliable With Plastic Reindeer Rule

The conservative Christian movement to put Christ back into Christmas thinks it has a new champion, Supreme Court nominee Judge Samuel A. Alito Jr. Conservative groups are unleashing a wave of ads, radio commercials, and email salvos praising his consistent support of religious expression. One commercial says he has "ruled against the ACLU's attempt to scrub away our religious heritage."

Certainly Christmas should be saved, but before we shift our allegiance from Rudolph and the other groups who have been the mainstay in the past, perhaps we should take a closer look at the Judge’s actual cases. This will involve a little jurisprudence, but hey, this site is supposed to provide a learning experience. First, the establishment clause. “Congress shall make no law respecting an establishment of religion…” Sure, it says “Congress”, but in 1947 it was discovered that the due process clause of the 14th amendment makes the establishment clause applicable to the states and all its little sub entities as well . So all those local Christmas displays were suddenly a real problem. We can all agree we can’t have every little town going around establishing a religion. That would be OK with a lot of folks if it was the one true religion, but you can’t count on that, so... no establishing.

So when is that manger scene or menorah “establishing”? It turns out to be when the display pushes one religion over another, or over secular holiday joy. “Pushing” was elucidated in a line of cases ending with Allegheny County v. ACLU, the 1989 decision applying the "plastic reindeer rule" of Lynch v. Donnelly. If all you have in your display is a manger, that’s clearly pushing. However, you can cleanse the scene of push by throwing in secular stuff like a Christmas (Holiday?) tree, a Santa, or a plastic reindeer. Thus the name of the rule. That evidences that you go both ways.

OK, we are ready for ACLU v. Schundler, Judge Alito’s third circuit review of Jersey City’s display. The city had for many years put up a display of a manger and a Christmas tree. The district court saw pushing and issued an injunction, which the appeal court upheld. The city then added large plastic figures of Santa Claus and Frosty the Snowman, a red sled, and Kwanzaa symbols on a tree. A bit of overkill, but by then they were probably sick of the whole thing. Judge Alito said the first injunction was correct, but ruled that the added stuff had satisfied the plastic reindeer rule and the display was now OK. So there you have it. His reliance on the plastic additions is troubling, as it looks like the judge wasn’t all that solid on the defense of Christmas. If he was, you would think he would have gone for the pure manger scene.

There is no question where the public stands. In a Gallup poll, 88% of the respondents thought it was a good idea to wish people "Merry Christmas" even at the risk of offending the ACLU. House Speaker J. Dennis Hastert has changed the name of the chamber's "holiday tree" back to "Christmas tree". [No word yet on "American fries"]. The American Family Association is urging a boycott of Target stores for omitting the word "Christmas" from their ads. Stung by the attack, a Target spokeswoman claimed there was "no trend or intent to ban the use of Christmas" in holiday advertising. Wal-Mart is under attack for the way its web site handles searches for "Christmas", and there are reports of greeters not wishing shoppers "Merry Christmas". An unnamed and ungendered spokesperson admitted that the "greeting issue" was a relief from the usual focus on wages and benefits. Their web site does clarify the "growing misperception" regarding this: "Wal-Mart would like to clarify that it has no policy that prohibits an associate from wishing customers “Merry Christmas.”

Sunday, December 04, 2005


Turkey Nothing To Sneeze At

An amino acid which the body cannot produce on its own is found in abundance in turkey. One of the breakdown products of tryptophan, one of the 20 amino acids, has been found to surpress the immune response, making it effective against autoimmune disorders, and probably as a treatment for allergies. The study also found that eating a lot of turkey makes you happy and sleepy. The study was completed before Thanksgiving, so it is more groundbreaking than it now seems.

Dr. Steinman offered an evolutionary or intelligent design explanation for the surpressed immunity. When people are starving, the body turns off the immune system to preserve essential functions in the brain and heart. This helps the starving person survive until dinner. This also explains how we evolved (designed) the practice of having Thanksgiving dinner at noon rather than in the evening, preserving immunity from all those relatives.

Asked whether this meant people should eat a lot of turkey, he said "it probably won't help unless you are starving to death." So there are some advantages to delaying the dinner until evening.

Saturday, December 03, 2005


Screwdriver Is Theory, Not A Fact

You have heard the mantra, righty tighty, lefty loosey. All over this country, students in Shop 100 are being taught to BELIEVE that a turn of the screwdriver is a turn of the screw. Not that it is a theory, mind you, but a fact.

The scientific evidence for this is not only scanty and full of holes, but the common man can see that there has to be some invisible force, or plan, involved in what we commonly observe in fasteners. Let's look at the tip of the screwdriver, saving the screw for later. Most people are familiar with Heisenberg's uncertainly principle. Clear back in 1925 Werner demonstrated that when you are dealing with atoms and stuff, you just can't tell. Of course, you say, that is a theory too, but it is built on Niels Bohr's atom, a nucleus with little electrons twirling around in "special" orbits, but mostly open space. We learned that in high school.

So, common sense tells you that with all that open space on the tip of the screwdriver, and on the screw too, turning is going to be a sometimes thing. Good catch, Werner! Turning to the turn of the screw, Henry James certainly demonstrates, with the help of Miss (sic) Jessel, that something really spooky is going on.
Not to mention Schrodinger's Cat, a theory that rests on the unlikely prospect of stuffing a live cat in a box and not being able to tell if it is dead or alive. That is after it is in the box. Before that you can tell. Trust me.

If you still have any doubts about the screwdriver, let's go on your own experience. Of all those times you used a screwdriver, did the screw always turn?

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