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February 27, 2005

Looking at mountains

Here are some good pictures of Ben Nevis in Scotland, a beautiful mountain I've never seen before.

They reminded me of my favorite mountain, Pikes Peak, which I've run up four times and on whose summit I worked for two summers as an EMT.

The Deed of Paksenarrion

I've finished my 8th book of the year, although I'm still pretending not to count them. This one should really count as three books -- since it orginally was three books -- but the publisher has issued it as a single 1024-page book. I'll count it as just one.

This fantasy trilogy (packed into one volume) suffers from so many flaws that it should never have seen the light of day. Sane publishers usually refuse to publish stories about female warriors who aren't interested in sex. At all. Especially when the author never explains why. Paksenarrion, the sheepfarmer's daughter-turned-warrior hero, just "isn't interested in that kind of pleasure."

Huh? Elizabeth Moon has tried to replicate a few too many elements of The Lord of the Rings, without realizing that only Tolkien himself can get away with half the stuff he actually gets away with. The rule in fantasy publishing has always been: female warriors must always be demons between the sheets, because that's what readers want.

In this case, though, we all ought to be glad that the publisher fell asleep at the switch. This is actually a pretty damned good book. It starts slowly, just like Paksenarrion's life. She is, like I said, a sheepfarmer's daughter from a small town who doesn't want to marry the peasant boy from across the hedge that her father has chosen for her. So she does the sensible thing and runs away to join a mercenary army. The army is headed by Duke Phelan, whom everyone calls "the Duke" but who is probably not an actual duke. Got it? The Duke is a great military commander who runs a tight ship, and Paks (as everyone calls her) soon learns the fundamentals of fighting in the infantry. She also learns that she has a natural talent for it.

As the story continues, Paks learns more and more about fighting with different weapons, and about tactics and strategy. Her skills begin to be noticed, and she eventually finds herself accepted into an elite military training academy run by a religious sect that is sworn to protect and defend the innocent. But before Paks can master the challenges of paladin-school, she is captured by a group of evil subterranean elves, who torture her even more mentally than they do physically (which amounts to a hell of a lot of torture). Paks is rescued, but her scars have left her a coward, who can't continue her warrior studies. She's not even fit for employment as a shepherd, since she's even afraid of the sheep.

The rest of the story is about how Paks deals with her unexpected misfortunes. Poor Paks. We really care about her by now, mostly because we've followed her through so much, and because the book doesn't really pretend to try to develop any of the other characters. The amazing thing is, Paks is enough. She's one cool chick, even if she's not interested in any flirtatious foot-rubbing beneath the table in the tavern.

This book wins because it does two things well: swordfights, and the inner struggles of a likeable, if a bit naive, swordfighter. Sure, it's nice to have some romance, and a few good monsters too. But they're not necessary. Robert Jordan proved that all the romance and monsters and political intrigue won't save a story that doesn't have any good characters. Elizabeth Moon gives us Paksenarrion, and that's all we really need.

February 26, 2005

Bush gives "speech"

Daniel at Involuntary Blogslaughter has the text of the President's "speech in Brussels."

(The scary thing is, this is more accurate than an actual transcription.)

Why federal court?

I was skeptical that last week's legislation shifting some class-action lawsuits from state to federal court was really as consequential as the politicos on both sides of the aisle made it seem. Are the federal courts really so much more hostile to class-action plaintiffs than the state courts are? And if so, should it bother us?

I still don't have any answers, but after asking around at the law school, I do have some more information.

First, it's unclear whether removing class-action lawsuits from state to federal court actually favors defendants. Some studies have shown that win rates drop significantly when a case is removed from state to federal court on diversity grounds. See Clermont & Eisenberg, 83 Cornell L. Rev. 581 (1998). The question is, why? The difference might be due to increased costs for plaintiffs, or to less favorable procedural rules. It may be due to a case-selection bias -- the plaintiff's strongest cases are settled, and the weakest claims are removed. We can't tell from win rates alone whether federal court is actually more favorable to class-action defendants.

But let's assume for the moment that federal court makes a difference. The most troublesome explanation for this would be that the federal courts are populated with less sympathetic judges. "Less sympathetic" being in this case a euphemism for "politically slanted towards corporate defendants."

It does make some intuitive sense that the federal judiciary might be more hostile to class-action suits. Since the presidency has been held by republicans for most of the past thirty years, and since right-wing presidents can be expected to appoint judges whose rulings tend to favor big business, we might expect that the federal judiciary would be less indulgent of class-action plaintiffs than the state judiciary would be.

Do we really want to say that the federal judiciary is politicized? I don't want to say it. If any judges are going to be making decisions based on their political leanings, I'd rather it be an elected state judge who favors in-state plaintiffs and who can (theoretically) be given the boot, than a tenured-for-life Article III federal judge.

I'd like to think that most all judges, state and federal, aren't overt politicos and don't decide more than a tiny fraction of their cases under the influence of their own political beliefs. I'm also sure that at the margin, a judge's political leanings do make a difference. (See, for example, criticism of Justices Thomas, Scalia, and all the rest except O'Connor in Johnson v. California, the racial-segregation-in-prison case.) The political leanings of the federal judiciary, though, seem to me unlikely to have any real impact on the outcome of most class-action lawsuits.

So I suppose my point is this: there's good reasons for believing that last week's legislation is not going to make a whole hell of a lot of difference. And if it does, the reasons for it are not likely to be ones that worry me a whole lot.

But, still...

Why does the corporate lobby seem so thrilled? And does passage of this legislation suggest that more pernicious legislation is on the way -- like a federally-mandated cap on noneconomic damages in malpractice suits?

With the kind of Congress we've got now, I never really stop worrying altogether.

February 25, 2005

"Spring" break

... is here at last.

Ahh, the sweet smell of freshly fallen snow, the satisfying crunch of crusty two-month-old ice underfoot, and the familiar facial numbness from facing into the sub-20 degree late February breezes of Southeast Michigan.

Spring Break!

I'm staying here for the week, since I'm not too bothered by cold weather. It's fun to ridicule, at the very least. At most, it builds character. But either way, I'm looking forward to a productive week that will hopefully include a few good blog posts.

For all of you Michigan people going to Cancun: don't let the warm weather soften you up too much. You'll still have a month and a half of this cold stuff waiting for you when you get back... *cackles evilly*

February 22, 2005

Short posts on Tuesdays

Because Tuesdays are so busy, I'll just send my readers here, so they may learn of the nefarious (non)activity of Utah's U.S. Attorney, Paul Warner. He seems to be hesitant to enforce federal law against a bunch of red-state hooligans who happen to also be state government officials.

(Oh, and the Supreme Court has agreed to hear the appeal of Oregon v. Ashcroft (now known, sadly, as Gonzales v. Oregon). Those dastardly feds are trying to enforce the federal Controlled Substances Act against a poor innocent blue state whose voters have legalized assisted suicide.)

Now I'm going to get some sleep. For some reason, I'm thinking I should be well-rested for my Federalism class tomorrow...

(EDIT -- The NYT provides some background on Gonzales v. Oregon.)

February 21, 2005


Mondays are busy... But not nearly busy enough.

You are Mayor Wilkins:

"Remember, fast and brutal. It's gonna be a whole new world come nightfall, don't want to weaken now. And boys? Let's watch the swearing."

What "Buffy" Character Are You?

(Via Julie Saltman.)

Schulz had it backwards

Charles Schulz is alleged to have said "I love mankind -- it's people I can't stand."

For me, it's the exact opposite.

Legal ethics blog

I hope the folks in my Legal Ethics course this semester will enjoy the Legal Ethics Forum, a new blog I found thanks to Brian Leiter.

February 20, 2005

Socialist novels?

Phersu links to this list from China Miéville of science fiction and fantasy novels that 'embed' politics 'of particular interest to socialists.'

I like SF and fantasy, and I'm a fan of Miéville's Perdido Street Station and The Scar. I'm interested in politics, too. But I'm not the slightest bit interested in a list of novels that share a certain kind of politics--socialist, agrarian, or whatever else.

I've liked Miéville's stories, which might reflect a socialist slant; I love Tolkien, who reflects elements of aristocracy, agrarianism, and Catholicism; I love Mark Helprin's Winter's Tale, even though the author is known to be a far-right wingnut.

Just give me a good story, and don't waste my time with lists of socialist books. I could use that time to learn to read French.

'Futile' treatment for incompetent patients

Dr. Bard-Parker has a thoughtful post about a 79-year-old patient with a terminal illness whom doctors at the Massachusetts General Hospital want to remove from life support against the wishes of her family.

Dr. Rangel has an equally thoughtful post about an infant in Texas born with a birth defect that requires prolonged ventilator support, leads to severe mental retardation, and is uniformly fatal before adulthood. Doctors at Texas Children's Hospital in Houston want to disconnect the infant from the ventilator against the wishes of his mother.

When it comes to the question of making treatment decisions for incompetent and terminally ill patients, Bard-Parker draws the reasonable distinction between initiating new treatment and withdrawing treatment in progress: "I have no problem with the withholding of aggressive or invasive therapies to patients that would not benefit from them or change the eventual outcome, despite family wishes[.] I also believe that families can and should make decisions about the withdrawal of care." This position corresponds with our intuition that families ought not to be able to compel physicians to provide futile treatment. It also acknowledges that the family is probably the best proxy for the patient when the decision concerns something that looks like "refusal" of treatment that doctors are already providing.

But does this make too much of the distinction? The patient at Mass. General has been in a hospital bed and on a ventilator since 1997. Her condition is incurable. Assuming that the patient is in fact not conscious and has no hope of ever regaining consciousness, the family's insistence that the patient be kept on the ventilator looks more like they are compelling the hospital to provide futile treatment. The physicians in the ICU must perform affirmative acts that they regard as futile -- something that the family could not require of surgeons if they insisted that a futile procedure be performed on the same patient.

Dr. Rangel points out that the physicians in both Massachusetts and in Texas have good reason to believe that continued treatment will only cause the patients to suffer. Should a doctor be compelled by the family to prolong suffering, if they cannot be compelled to 'initiate' suffering?

Dr. Rangel asks:

Is the system broken? Too often I hear about court decisions that dismiss the opinions of medical professionals and allow terminal patients to continue to suffer. Probate courts appear to be far less responsive to the continued suffering of terminal patients with incurable conditions than they are to the demands of patient families no matter how irrational or disconnected they are from considering what is best for the patient. Why is this the case?
Dr. Rangel identifies one reason: fear of euthanasia. Judges might feel (reasonably) that they are not in the best position to have an intimate knowledge of the situation, and might decide (again, reasonably) to "play it safe" by requiring that treatments continue.

But Rangel is surely right that this approach can lead to patient suffering. That's why legislatures have good reason to provide protocols that relieve the judge of the need to make case-by-case decisions about withdrawing medical treatment. The Texas Advance Directives Act (link to pdf file here) seems like the right approach. The law requires hospitals who want to withdraw treatment against the wishes of the family to obtain an ethics committee consult, undergo a waiting period, and attempt to transfer the patient to another facility who will abide by the wishes of the family. In this case, a judge will most often only have to decide whether there is a reasonable expectation that an extension of the waiting period will make it possible to identify a facility that will accept the transfer of the patient.

I don't think Dr. Bard-Parker needs to fear an American version of the Groningen Protocol, but I also think Dr. Rangel exaggerates the "faux standard of care" imposed by the courts. Fortunately, I think most families and physicians will be able to come to some kind of consensus regarding futile treatment. When they cannot, legislatures and courts together can fashion sensible rules to deal with the dispute. This doesn't mean they always will, only that they are capable of it if the rest of us hold them to high enough standards.

February 19, 2005

America's pork problem

Audit Faults U.S. for Its Spending on Port Defense

Since they all say they're committed to making our country safer, I wonder who in the Bush administration is going to take responsibility for this?

After examining four separate rounds of port grants, the inspector general found that the department appeared to be intentionally distributing the money as widely as possible, instead of focusing it on the biggest ports or other locations that intelligence reports suggested were most likely to be future targets.


The audit results appear to support criticism voiced last September by Senator Frank Lautenberg, Democrat of New Jersey, who complained in a letter to President Bush that the methods used to grant the awards did not make sense.

"Your administration awarded port security grants in the states of Oklahoma, Kentucky, New Hampshire and Tennessee," Mr. Lautenberg wrote. "While there may be some form of maritime facilities in these locations, I question whether, of the nation's 361 maritime ports, these locations are truly the front lines on the war on terror."

Looks like it'll take more than just terrorist attacks to cure America of its fondness for pork.

An exciting weekend so far

Wandering through the open reserve section of the law library, I saw a copy of Bosk's Forgive and Remember.

Can't really think of why a book on how surgical residency programs deal with errors would be on open reserve in the law library. But there it was.

February 18, 2005


Prof. Bainbridge has announced that he'll be deleting trackbacks to other bloggers' posts that don't link to his post in return, on the grounds that it's rude. I agree.

Sending trackback pings without including a link to the same blog in your post violates the mutual-backscratching rule of blogging etiquette. The trackback pings send readers of Bainbridge's post to the pinging post, but the pinging post sends no readers to Bainbridge. That's not polite, especially when Bainbridge might never choose to link to the pinging post in the first place.

It's nice when a blog with heavy readership like Bainbridge's sends a few of its readers your way (if only through a trackback link), even when linking to Bainbridge in your post might not be able to send an equal number of readers back to Bainbridge in return (due to a smaller readership).

I say, don't take advantage of a system that inherently benefits smaller blogs. If you ping, then link.

February 17, 2005

Class-action lawsuits

I'm not sure whether shifting more class-action lawsuits to federal court (via Howard Bashman) is really as bad as some Democrats are portraying it.

The idea is that state courts are much more likely than federal courts to award huge damage awards to class-action plaintiffs. Although there have been some recent examples of large awards in tobacco lawsuits, for example, I'm not sure why plaintiffs would be systematically disadvantaged in federal court. Maybe if the federal cases were decided by judges while the state courts used juries--but I don't know whether this is the case. Maybe the procedural rules are more favorable for defendants in federal court, because they give the judges more discretion, and federal judges just love big business. But this seems weird. I can't see juror bias being a whole lot different between the two court systems, either.

My skeptical half thinks that this legislation might be more effective as a way for members of Congress to build their pro-business bona fides (or pro-average consumer bona fides) than it is as a substantive piece of tort reform. This is, of course, the first piece of Bush's reform agenda to make it through Congress, which suggests it may be the least consequential.

February 16, 2005

Educating doctors

Dr. Centor responds, more graciously than I would have, to an email defending drug reps.

The substance of the emailer's argument is that without drug salesmen to help doctors stay up-to-date, physicians would be incapable of keeping abreast of the latest drug information.

Technically, the drug reps are right when they claim to be educating physicians. This is exactly why they ought to get the heave-ho. If they were merely selling, and not educating, they'd be much less dangerous. Education is powerful stuff, but it's not always a good thing.

We like to think of education as an unvarnished good, because we confuse education with the mere acquisition of knowledge. Education certainly includes the acquisition of new facts, but it also involves ranking these facts, using these facts, and identifying which of these facts are more important than others. All of this involves judgment, which is in turn dependent upon values.

This is why education is valuable, and why it's dangerous. We trust people who have been educated in medical school and residency to practice medicine not merely because they've learned some facts and skills about anatomy and physiology, but also because they've learned to make judgments about these facts and skills that are consistent with the values we believe a physician should have. We would not say that an equally knowledgeable person who was taught his medicine in a school of Exquisitely Slow and Creative Torture had been educated to be a doctor.

If this is true, and if it's true that drug reps really are educating physicians, is this a good thing? Do we want our physicians taught by representatives of Big Pharma? Do we think this kind of education is best for our patients? Big Pharma teaches facts about drugs, but as Dr. Centor suggests, they also teach other things: the newer drug is better; any drug is usually better than no drug; most patient complaints should result in a drug prescription. These aren't necessarily the values of a good physician.

If it's true, as Dr. Centor claims, that our current system of CME isn't working, he's also correct that the solutions should come from the state medical societies and the medical schools. Not the drug reps.

February 14, 2005

Senator Salazar

I thought I'd get around to answering a question that a friend asked me about a week or so ago: what up with the new Democratic senator from Colorado, Ken Salazar?

Salazar, you might not remember, embarrassed himself by voting to confirm Alberto Gonzales as Attorney General. Right out of the gate, he's lined himself up with democrats like Joe Lieberman. This is not a good sign.

I'm really disappointed in Salazar, and I don't understand why he felt the need to support Gonzales. Salazar was a moderate state attorney general back in Colorado, but I would have thought this experience would leave him less well-disposed to someone like Gonzales.

It might be that Salazar voted for Gonzales because Gonzales was a Latino. If so, I'm even more disappointed. That kind of shallow adherence to cheap identity politics isn't good for anyone.

Perhaps Salazar just made a (costly) rookie mistake. Somehow, though, I don't think Mike Miles (Salazar's opponent in the primaries) would have made the same mistake. If Salazar didn't make a mistake, if his vote is a real indication of what kind of Democrat he is likely to be, then the Democratic Senatorial Campaign Committee's snubbing of Miles in the primaries looks even worse now then it did then.

The DSCC's argument was that Miles had no chance of winning, and the important thing was to put Democrats in the senate. Allowing the Democratic voters in Colorado to actually chose their candidate was, apparently, unimportant to the DSCC. If the DSCC hadn't been so quick to endorse Salazar, who knows if Miles could have won the primary election? And even if Miles had won the primary and lost the general election, it would have been no great loss, at least as far as the Gonzales vote is concerned.

It might in fact turn out that having Salazar in the senate is a good thing for the Democrats. But after the Gonzales vote, that issue is still not settled.

"I feel the earth, move...."

I had the greatest experience in Jurisdiction today: a singing valentine.

A bunch of law students, all of whom sang really well, barged into Room 120 and belted out a bunch of awesome acapella tunes for a few people in the class. One of them, shockingly, was me.

The little paper valentine's day card that came with the song was signed "your secret admirers." I know it couldn't have been my greatest H-dogg ever, because she's not very secret.

So I'm left wondering who my secret admirers could be. What have I done that's worthy of admiration? I can't prescribe pain-killers for anyone, so that can't be it... Ah, yes. They must be fans of my blog. :)

You guys are the greatest! Thank you.

February 13, 2005

A Ward Churchill post for Mom

I got an email from my mom today. "Why haven't you blogged about Ward Churchill?"

The answer, of course, is that I cannot blog about everything. So many others, from Brian Leiter to Prof. Bainbridge and Eugene Volokh have already said what needs saying. Which is, of course, that Churchill should not be fired because of his "little Eichmanns" article.

Sometimes, though, the better part of wisdom is simply not to argue with your mother. So I'll say three things about Ward Churchill:

1. Dave Kopel's column for the Rocky Mountain News (via Volokh) purports to evaluate the Colorado news media's coverage of the Churchill story. But by what criteria? He never tells us, but it's obvious from his column that for Kopel, "good Churchill coverage" pretty much equals "reporting about various bad things that Churchill may have done at any time in his life, whether it's related to the current controversy or not."

2. Despite his nods to the value of open discourse, Anthony Rickey doesn't seem to really understand it. For Anthony, it seems, the test of the value of discourse is not, in the end, its openness, but rather its acceptability to the majority:

After all, if the ostensible purpose for academic freedom is that it benefits the public, isn't there some interest in convincing the public that they're receiving value?

Here, of course, lies the rub. Whatever the intrinsic value of knowledge, most of those who support universities focus upon their instrumental benefits: college education helps in getting a job, providing for doctors and other skilled professionals, or developing nifty new bits of technology. These goals aren't particularly furthered through subsidies towards those who would demonize the dead. Indeed, humanities departments--which tend to be much more politically polarized--do not always inspire such universal good feeling.

I agree with Anthony that the reason we ought to defend academic freedom is that we believe that it will benefit the public. I disagree with Anthony's belief that the best test for what constitutes a public benefit is always a plebiscite.

Sometimes, majorities can be horribly and catastrophically wrong. Academic freedom is valuable because it insulates dissenting voices, which are sometimes necessary to protect the majority from themselves, or to protect minorities. We decide ex ante that professorial opining will be protected in order to spare ourselves the impossible task of identifying, without the benefit of hindsight or omniscience, which dissenting voices will turn out to be helpful and which will not.

3. I never voted for Bill Owens. I probably never will.

February 11, 2005

The COX-2 wars

Via Kevin, M.D., this juicy account of the Vioxx vs. Celebrex war reveals a profound difference of opinion on the question of how malleable doctors' prescribing habits really are.

Merck believed that doctors could be influenced, and they were willing to pay to do it. The doctors, on the other hand, all seem to be singing a different tune.

-- Dr. Roy Altman (selected by Merck to run a clinical trial involving Vioxx, to which the drug company contributed $25,000):

He also said his involvement in the trial did not affect his prescribing.
-- Dr. Robert Ettlinger (subject of a Merck memo urging that he be "kept busy" with clinical trials and describing him as "neutralized"):
The physician said in an interview that he was "absolutely shocked" that he had been singled out for attention, saying he regularly gave speeches for many drug companies. Such work never affected the drugs he prescribed, including Vioxx or Celebrex, he said.
-- Dr. Keith Feder (founder of a nonprofit foundation that accepted a $25,000 grant from Merck, which according to a Merck representative would give a "return on investment" of "51 percent share of [the] COX-2 market in 2000"):
In an interview, Dr. Feder confirmed that the foundation had received money from both Searle and Merck, but said that the grants helped support a continuing medical education program and were not intended to influence his prescribing habits and did not do so.
-- Dr. Max Hamburger (asked drug companies to subsidize retreats for a physician group during which the physicians would put together guidelines on what drugs to prescribe):
In an interview, Dr. Hamburger said that his group solicited funds from a large number of pharmaceutical companies to support its educational meetings and that payments from those drug makers did not influence the medications prescribed.
If there are physicians out there who actually admit that their prescribing habits were influenced by drug company largesse, no New York Times reporters have found any yet.

Lynne Stewart aided terrorism?

I wasn't on the jury, so I won't second-guess their verdict. But I'm trying to put my finger on the reasons why Lynne Stewart's conviction bothers me.

Stewart was the lawyer who represented the "blind sheik" Omar Abdel Rahman. She apparently violated prison rules intended to prevent Abdel Rahman from communicating with his followers from prison -- for example, she read a statement from the sheik withdrawing his support for a cease-fire in Egypt to a reporter in Cairo. The government charged her with providing material aid to terrorism, while Ms. Stewart insisted that she was fulfulling her professional obligation to provide her client with zealous representation.

On one hand, I understand the importance of preventing terrorists like Sheik Abdel Rahman from inciting violence from prison. I can see how Stewart's violation of the rules could result in serious harm (although in this case it did not). Perhaps I'd be a lot more comfortable with the verdict if Stewart had been charged with something like endangering public safety by violating these rules.

I guess one of the things that bothers me is that Stewart's behavior doesn't obviously amount to "aiding and abetting terrorism." (By the way, I hope the charge was really of aiding "terrorists.") If someone can be guilty of aiding and abetting every time they do something that may conceivably benefit a terrorist, than it's not clear to me why virtually every American citizen shouldn't be convicted. I'm not sure why anyone in government who's ever done anything that might help terrorist recruitment (most of Bush's team) shouldn't be thrown in jail.

When our political climate allows John Ashcroft to sit before the Senate Judiciary Committee and, without being savagely rebuked, imply that anyone who doesn't support the Patriot Act is flirting with treason, we ought to worry when defense lawyers are convicted of aiding and abetting terrorism. Especially when no one alleges that any actual terrorist acts resulted from this supposed aiding and abetting.

I don't suggest that Stewart ought to escape punishment for violating the no-communication rules applied to Abdel Rahman. But I'm worried that her conviction for aiding terrorism is a little too much.

February 10, 2005

Overheard at the law school

You know you're in law school when you're walking through the snack bar and overhear the following snippet of conversation:

"...and you know that 'manslaughter' is just 'man's laughter'..."

I'd never thought of that.

February 09, 2005

State senator has brilliant insight

I got an email a few days ago from Ken Gordon, the Colorado State Senate majority leader (I'm on his listserve). He's got a fantastic idea to help wean those upper-income suburbanites off the government dole.

One of my favorite criticisms of many of the folks who live in the suburbs and vote Republican is that they demand subsidies from the government that they aren't willing to pay for.

One example of this is transportation. Let's say a guy has a job downtown, but he doesn't like the city life, so he decides to buy a big old house 35 miles away in some brand-new suburb. Now he has to drive his SUV seventy miles round trip to work each day. Which is fine, except that he immediately starts complaining about highway congestion. It's as if he was completely unaware that this is one of the consequences of his free decision to buy a house way out in the 'burbs.

What's worse, he seems to think it's the government's job to fix his transportation problem. Often these suburbanites are the loudest supporters of huge highway-widening projects funded by state and federal revenues, and they see no contradiction between their support for highway projects and their opposition to urban mass transit.

The point is not that suburbanites are often ideologically inconsistent--that should surprise no one, because most all of us are inconsistent from time to time. The point, rather, is that the real costs of moving to the suburbs and living the commuter lifestyle aren't accurately reflected in the prices these people pay.

Regardless of what you think about the virtues or vices of suburban sprawl, the fact is that it's subsidized by the government. Transportation is just one example. Another example, at least in dry states like Colorado, is water.

Douglas County, just south of Denver, is one of America's living museums of upper-income suburban sprawl. It's a real David Brooks kind of place. Anyway, Douglas County's subdivisions have to depend upon non-renewable underground aquifers for their water supply, and these aquifers are drying up.

Sen. Gordon tells us in his email of his meeting with a geologist about the future of the aquifer:

He told us that the water level is dropping about an inch a day. That works out to about 30 feet a year. He showed us diagrams of the thickness of various aquifers in the Denver Basin. He was careful to not give any particular time for when the water will be gone, but it seemed to me that someone who bought a house in Douglas County today, with a 30 year mortgage, might be making house payments longer than they are taking showers.unless we start thinking, planning and investing.

There is water in Colorado for these houses, but it will cost money to buy the rights and get it to Douglas County. A water expert told me that a current estimate is $32,000 per house. In places where some infrastructure is already in place, it will be less. But right now people who are buying houses are getting an unreasonably low price because they are not paying for the costs of infrastructure and water rights that will be needed to replace their current water supply.

Usually in the West, when an aquifer runs dry because some developer has put a subdivision on top of it, the government will bail out the residents with some huge water-diversion project, like a pipeline, canal, or dam. The bill is charged to the taxpayers generally.

Sen. Gordon not only sees the problem, he also sees a possible solution:

I have carried legislation in the past that would have required the seller of a new home whose water supply is a depleting aquifer to tell the buyer. Last year the proposal passed the Senate and was killed in the House Agriculture committee, chaired at the time by Diane Hoppe, who voted against it. The Home Builders and the Realtors had concerns about my bill.
It's easy to see how daunting the task of weaning the suburbanites off of subsidies is going to be. Even requiring that they disclose their future need for big water projects is a tough sell, let alone making them actually pay for these projects themselves. But we've got to start somewhere.

I'm sure there would be problems with actually determining which houses are supplied by aquifers that are being depleted, and of specifying what kind of disclosure is required. But surely these pale in comparison with the problems posed by our current practice of pretending that private homebuying decisions have no consequences for the general public.

3 out of 1,000,000,000

Following up on this post, a reader sends a link to this story about a Swedish investigation into the safety of Red Bull energy drink.

Apparently, three otherwise healthy people in Sweden have keeled over dead shortly after drinking Red Bull. Two of the victims had mixed Red Bull with vodka; the other had just completed a "heavy workout at the gym."

This "outbreak" of Red Bull-related deaths doesn't seem to have stimulated much interest outside of Sweden (insert obligatory bad pun apology here). The UK isn't planning any investigations, and the U.S. FDA has been a bit preoccupied with statins and COX-2 inhibitors. There may be other nations as concerned as Sweden, but I haven't heard of any.

In the overall scheme of health risks, I don't think we have much to worry about from Red Bull. Over 1 billion cans were purchased worldwide last year, and I imagine quite a few of them were consumed just after exercise, or with alcohol. Meanwhile, most of us in the industrialized world keep dying of heart disease, cancer, and car crashes.

Besides, a trusted source informs me that Red Bull effectively kills the taste of vodka. Surely that's worth the risk.

February 08, 2005

My ass is sore; it must be Tuesday

Tuesdays are grueling. Here in this little bubble protecting me from the real world, usually referred to as law school, Tuesdays are a grueling exercise in endurance.

Why? I sit on my ass for a minimum of five (5) hours every Tuesday: one hour each for Jurisdiction, Bioethics, and Federalism. Two hours for Legal Ethics. On some unhappy Tuesdays (today was one of these) I have to go to lunch meetings which usually last about an hour. That makes six (6) hours with my butt in a chair. Plus whatever time I must spend sitting down to prepare for tomorrow's classes.

I know, I know. All of you out there working construction jobs must surely pity me. And with good reason! Why, your aching arms, legs, neck, stomach, and feet can distract you from any soreness in your butt. As a law student, these luxuries are denied me. I feel my aching ass acutely.

My advice to all of you hard workers out there: count your blessings that you're not in law school.

February 06, 2005

Technically correct. Esthetically abhorrent.

One of the most awkward sentences that I've read in law school appears at the end of 103(a) of the Patent Act: "Patentability shall not be negatived by the manner in which the invention was made."


Uggh. Today, I again encountered the word again, this time in an otherwise excellent article by Walter Gellhorn, Contracts and Public Policy, 35 Colum. L. Rev. 679 (1935):

But when the legislature selected only one sanction to enforce compliance with what it regarded as the public interest, the courts at once came face to face with the problem whether the selection of one negatived the desirability of also using the other.

Gellhorn is otherwise an excellent (and sarcastic) writer, so I'll assume he was smoking crack when he used the word "negative" as a transitive verb.

Technically, it's a correct usage. Esthetically, it's a disaster. Kind of like high heels. The women who wear them always walk funny.

Choosing Howard Dean

David Brooks "congratulates" the Democrats on their nearly-certain choice of Howard Dean to chair the DNC, and blames Dean's mystifying ascendancy on what what he calls the "university town elite."

Howard Dean may not be as liberal as he appeared in the primaries, but in 1,001 ways - from his secularism to his stridency - he embodies the newly dominant educated class, which is large, self-contained and assertive.

Thanks to this newly dominant group, the Democrats are sure to carry Berkeley for decades to come.

Many Republicans besides Brooks, including Tom DeLay, seem to share this opinion of Dean:
"After 10 years, you wonder if Democrats are running out of ways to say no," said Representative Tom DeLay of Texas, the House majority leader. "But then again, if they make Howard Dean the party chairman, I guess you could scream it."

Stupidity, the saying goes, is continuing to do the same thing over and over while expecting a different result. Despite this Republican hooting from the sidelines, the Democrats are making a smart choice in the wake of yet another national electoral defeat at the hands of George W. Bush. The reasons are below the fold.

Applied to the Democrats, it would be stupid for them to continue to follow the lead of the party's entrenched leaders in Washington, many of whom are now opposing Howard Dean for many of the reasons Brooks mentions. What results have these leaders produced? Cave-ins on tax cuts. Cave-ins on the invasion of foreign countries. Too little resistance to the worst of the abuses in the "war on terror."

Most importantly, what electoral results have the entrenched Democratic leaders produced? A second term for one of the most radically right-wing presidents ever, and virtually unprecedented Republican control of all three branches of the national government.

You can't argue with results. The national Democratic leadership hasn't produced many (any?) good ones. The "centrist" Democrats--i.e. those who claim credit for Clinton and paint his Presidency as a golden age for the Democrats--are as responsible for the successes of George W. Bush as Karl Rove is. Their eagerness to move to the "center" (i.e., rightward) shares responsibility with Rove's audacity and aggressiveness for creating a climate wherein Bush's radicalism seems reasonable. Howard Dean only looks like an extremist in an environment completely dominated by the extreme right wing.

Anyone who scours our recent history for signs of Democratic life finds two small successes--one of them due in large part to Howard Dean, and the other something that Dean has vowed to encourage and support.

The first success is the mobilization of individual donors and voters. The Dean campaign showed the Democrats how to raise staggering amounts of money in small sums from many people, and energized the grass-roots of the party after years of condescending neglect from the Clintonistas. Brooks chooses to dismiss these small donors as the "university-town elite," but that's disingenuous. It was thanks in large part to the energy of Howard Dean's primary campaign that the national campaign was even close.

The second success is the election of Democrats to important state and local office. Many "red states" like Colorado are actually less red now than they were before the 2004 elections. Democratic candidates at this level didn't get elected by parroting the message of the party elite in Washington; they kept the focus on local issues and convinced voters that their ideas were superior to their Republican opponents.

Given these failures at the national level and successes at the state level, it's not surprising that the state Democratic Party chairs would like a bit of recognition. More than that, the state chairs have powerful arguments for why they should have more control of money and resources within the party. Howard Dean has campaigned for exactly this, and as a result he is likely to be the next chairman of the national party. (See this article, via Will Baude.)

It's interesting that Tom DeLay isn't the only House Leader dissing Howard Dean. Nancy Pelosi is too, championing Tim Roemer (wtf?) instead. Pelosi's been one of the more vigorous opponents of Bush's policies, but she's wrong about Howard Dean. Despite what the Republicans are saying, the Democrats are doing the smart thing.

February 05, 2005

High-tech food

The Ulterior Epicure comments on the popularity of chefs-slash-"food technicians" like Spain's Adria Ferran and Chicago's Homaro Cantu. These guys' kitchens look more like laboratories, and they don't hesitate to impose their own will on the food they prepare.

Is this what I want from a top-of-the-line chef?

My agrarian sensibilities tell me no. If I want high-tech food, I'll just go get myself a tube of Pringles. Or Spam. If I want to eat out, a meal at McDonald's demonstrates just as well the power of modern technology to reconstitute basic food products into previously unthought-of and alien forms, flavors, and textures. I don't need no stinkin' Adria Ferran for that.

And yet... One of the things I love about the great chefs is their ability to give me unlooked-for surprises. As in, "Wow! I didn't know a pear could taste like that!" All great chefs impose themselves on their food, but somehow there seems to be a difference between Thomas Keller and a food technician working in the laboratories of Procter & Gamble. Both undoubtedly "intervene" in their food, but the former takes his cue from the food itself, while the latter forces his food into some ideal that originated in a marketing study. Big difference.

I'm curious about Cantu and Ferran. Are they more like Charlie Trotter or more like KFC? Maybe the Ulterior Epicure will investigate further, and will let me know.

Medical student debt

The Mad House Madman has a great post about the magnitude of medical student debt.

The bottom line: it's staggering. Even at the historically low interest rates we've experienced over the past few years, the payments required to service this kind of debt are huge. And as the Madman notes, these payments will get a whole lot bigger as interest rates begin to climb.

I posted a piece about a month ago about what I think is one of the major reasons for this ballooning debt: the failure of state governments to check the skyrocketing tuition rates of public medical schools.

I'm looking forward to the next post in the series, which promises to discuss the effects of debt on the decisions medical school graduates make. I suspect it will come down to this: new physicians must chase after money much harder than they would have had to absent the debt. In an age where health care costs are preventing many citizens from obtaining basic care, the last thing we need is a new generation of doctors who are desperate for more money. Sadly, that seems to be exactly what we'll get.

February 04, 2005


Thursday's announcement by the NIH that it will "request" that scientists who receive funding from the public agency to post their research on a freely-accessible website seems to have pleased no one. Is this an example of gutless policymaking, or a courageous refusal to give in to either side's extremists? Perhaps only NIH Director Elias Zerhouni knows for sure.

Regardless, it's more likely that NIH-funded scientists will respond to this request from Zerhouni than that big pharmaceutical corporations will comply with their trade association's request that they post the results of all clinical trials of their drugs on the internet. In the case of the individual scientists, any scepticism we may have about their likelihood of compliance is mere speculation. In the case of the big drugmakers, scepticism is demanded by their track record.

Last August, Glaxo SmithKline settled a lawsuit brought by Eliot Spitzer charging that it had suppressed unfavorable research data about the links between its antidepressant drug Paxil and suicidal thoughts in adolescents. The lawsuit drew attention to the distorting effects of the selective release of favorable data from drug company-funded clinical trials. The International Committee of Medical Journal Editors decided that they would not publish the results of trials that were not publicly registered at the time they were launched, and pressure mounted for Congress to mandate that all clinical trials be registered.

Big Pharma responded by announcing a new -- and entirely voluntary -- program for posting information about all "hypothesis-testing" clinical trials to an existing government site at www.clinicaltrials.gov. The information posted to the site would go well beyond the current requirements that companies post information about clinical trials involving treatments for diseases that are serious or life-threatening.

The problem is, the pharmaceutical industry isn't complying with the current mandatory reporting requirements for clinicaltrials.gov. On June 7, 2004 (before the Paxil scandal became news), Rep. Henry Waxman of the House Committee on Government Reform sent a letter (pdf) to the president of PhRMA describing the failure of the drug industry to post required information. The letter pointed out that FDA officials were concerned with the low rate of industry participation despite repeatedly sending notices describing the exact requirements of the law.

Even if PhRMA has a plausible argument for why drug firms were not required to post more often on the clinicaltrials.gov website, their reluctance to provide any more information than was absolutely required suggests that they might not choose to voluntarily comply with a request to post more data.

Requests can sometimes get the job done. This just might not be one of those times.

Just playing

I'm fiddling around with my stylesheet, so the blog might look kind of strange over the next day or two.

Please do not panic. I'm trying not to.

February 02, 2005

Urgent bulletin

I was going to post a long thing tonight on Bob Woodward's second book chronicling the wars of George W. Bush, Plan of Attack. Plans have changed.

This is an urgent bulletin. Everyone should pay close attention. The information I'm about to share may not actually save your life, but it can make your life a hell of a lot more fun.

As soon as possible, you need to try whirlyball.

The pictures on the linked site, I think, say it all.