Friday, September 11, 2009

September 11 and Terrorism

Here is my previous post on terrorism and the likely future suspects. In my humble opinion, American Muslims do not generally represent a serious threat to any state's security. Every group, however, has radicals, and we ought to focus on the methods governments should use to monitor perceived radicals. In short, balancing civil liberties with security is the real debate.

May God bless all the victims of 9/11, including their surviving families, and post-9/11 hate crime victims.

Thursday, September 10, 2009

Joe Wilson, Republican from South Carolina

First, Governor Sanford, now Joe Wilson. South Carolina can't seem to elect decent representatives. During President Obama's recent speech, Republican Joe Wilson yelled, "You lie!" Below is my letter to Mr. Wilson's office, asking him to resign. Feel free to copy and send to joe.wilson@mail.house.gov

Mr. Wilson:

Your conduct at President Obama's recent speech was unacceptable. You are dealing with the President of the United States of America, not a pitcher at a baseball game. Your heckling was boorish and showed disrespect to our Commander in Chief. Your apology is insufficient.

Please resign immediately. The great state of South Carolina has already suffered so much. It deserves new faces and credible reputations to represent its residents.

Law and Justice as Two Separate Concepts

Do you believe the law and justice go hand in hand? If so, get your drink of choice, sit down, and prepared to be shell-shocked. Unquestionably the most stunning piece I have read in recent memory:

http://www.newyorker.com/reporting/2009/09/07/090907fa_fact_grann?currentPage=all

("Trial by Fire," by David Grann)

I am completely numb after reading it. My friend Samantha S. says, "the law is not about 'justice'--it is about application of rules. It isn't perfect, but it is all we have."

Follow-up here. From the New Yorker's comments section: "The most telling irony... what the State of Texas listed as the cause of death for Cameron Todd Willingham: homicide. One fact they absolutely got right."

More here on public defenders, Gideon, and access to justice.

Bonus: how much does it cost to execute someone? Answer is here.

Wednesday, September 9, 2009

Extra-judicial Bonds

Once in a while, I come across an interesting comment on internet message boards. The following comment, from seamusmcdermott, is about our justice system:

This case highlights a problem in the justice system. Judges, prosecutors and police fraternize with one another and form extrajudicial bonds. These bonds reach into the courtroom with undue frequency, resulting in a system that leans unfairly towards the prosecution's case.

Judges need to be beyond such influences, but they aren't. Go to any courthouse (Hall of Justice?) in the Bay Area and visit the cafeteria. You'll see what I'm talking about. This isn't discussed much because people are largely unaware of it, or don't care, or WANT people convicted, even if they didn't commit the crime for which they are charged.

Stuff like this was behind the case recently where DNA evidence exculpated 55 death row inmates in Illinois. And the prosecutors STILL wanted to execute them, even though the DNA evidence clearly showed them to be innocent. Crazy, huh? And prosecutors are protected from civil action in these cases.

Mark Cuban and Unpaid Internships

I'm a huge fan of Mark Cuban. If reincarnation exists, I'd like to be reincarnated as him. Mr. Cuban recently blogged about unpaid internships and the maze of regulations involved in creating a legal unpaid intern position. See here. My response is below:

Mark’s HR representative is mostly correct. I handle labor and employment cases in California, and I tell my clients never to hire an [unpaid] intern unless they go through an authorized college program. Overall, as a business owner as well as a plaintiffs' employment lawyer, I see both the pro-business and pro-employee sides of employment issues.

Mr. Cuban and the minimum wage supporters are both correct. Mr. Cuban is correct in stating that potential employees have lost an opportunity because of the law’s expansive liability. The min-wage group is also correct when it contends that unpaid internships favor affluent and middle-class children who can afford to work without pay for some time. One can hold both positions without any contradiction.

Mr. Cuban, however, weakens his argument by refusing to acknowledge that internships favor more affluent kids. It is true that a poor kid from the ghetto could work two or three jobs–something Mr. Cuban did–and use public transportation to get valuable experience, but the overwhelming majority of the participants would not fall into the aforementioned category.

Mr. Cuban contends that it is not impossible for poor kids to participate and benefit from unpaid internships. Again, true, but when the overwhelming majority of unpaid interns are not poor kids or are supported by parents, it should be clear that unpaid internships tend to discriminate against poorer students, adults, and teenagers.

What is the solution? We need to revamp our entire educational system. Most education in America is no better than government-subsidized babysitting. When you compare American high school graduates with high school graduates from India, Pakistan, Iran, Israel, Norway, etc., the differences are stunning. Many international students specialize in a particular area and are familiar with a particular field when they graduate high school or college. American schools, in contrast, refuse to track students, equating “tracking” with stigmatizing. Other countries have no such qualms, which results in a less egalitarian, but more workforce-ready society.

America’s biggest problem (and positive) is its idealism and the idea that all students must be educated through college. Other countries actively weed out under-performers from colleges and even high schools. A more selective educational system will not go over very well in egalitarian-minded America until we realize we are failing our children in an increasingly globalized economy. The Bill and Melinda Gates Foundation is doing some wonderful things with charter schools, but it’s not enough. Teachers’ unions–which represent teachers, i.e., government workers, not children–are very powerful and will resist any educational overhaul.

Ultimately, if you want to blame someone for our unfair economic system, which favors rich kids and penalizes poorer kids, blame the American educational system and the teachers’ unions. An American high school diploma and college degree mean nothing these days. Think about why our degrees and diplomas have become worthless in proving workforce readiness. (Hint: it isn’t because of Mark Cuban.) Think about why employers want to see people work on the job before hiring them as employees. Think about whether an unpaid internship is useful in determining whether an employee and employer may find each other mutually beneficial. Ask yourself, “Does a person’s willingness to work for free indicate dedication and long-term interest?” Also, remember that no one is saying that the intern’s unpaid status should be permanent or long-term–I think Mr. Cuban is saying that an unpaid internship is a short-term “trial” period to determine whether a particular project or worker is capable of generating revenue for both the employee and the employer. In any case, don’t blame Mr. Cuban for trying to find hard workers. He’s just a realist, not a blood-sucking capitalist.

[This post has been slightly modified since its original publication.]

Tuesday, September 8, 2009

My Experience as a Lawyer

From what I see, people either distrust corporations or the government. If you tell me which you distrust more, I can probably tell you whether you're a Republican or Democrat.

But if we set aside politics, the first problem with laws is that small businesses--an essential part of our economy--get entangled in regulations that should be designed only for major corporations.

The second problem is that these small businesses--many of them immigrant-owned--don't have litigation budgets or cannot afford to pay a lawyer in advance to comply with every technical law. It just seems unfair that Mr. Cambodian Donut Shop Owner has to learn about some technical violation only when he gets served with a lawsuit and has to go lawyer-hunting.

The third problem is that government doesn't do enough to help these small businesses, even as it taxes them heavily and relies on revenue from them.

The fourth problem--and why change is so difficult--is that major corporations essentially control much of the legislation (when they're not writing it) and heavily influence Congress.

Overall, there are many laws we ought to have, but not if they also apply to small businesses. It's a shame we don't impose minimum revenue requirements on small businesses before subjecting them to thousands of pages of hard-to-understand laws.

Monday, September 7, 2009

Thought Experiment: Utilitarianism

I am borrowing the following hypothetical from Slawek W.:

John invents a cure for cancer. It is a pill, very easily made, in fact, one could make it with ingredients found in every household. He successfully demonstrates the effectiveness of this cure on several volunteers, after which he announces to the world that he has no intention of ever releasing any information about this cure. He further announces that the instructions to produce this cure have been implanted somewhere in his body in a soluble capsule which will completely dissolve in a week along with the instructions.

Let's suppose that a surgical search for this implant would end John's life.

Let's further suppose that there is absolutely no way that you can reason with John to change his mind, and you cannot reverse engineer the cure by studying the cured patients.

Now, the general population is asked what the best course of action is in this situation. John has the knowledge to eradicate cancer forever but he has no intention of sharing this information for whatever reason. Also, there is no way to forcefully retrieve this information without causing John's death in the process.

What would you propose should be done and why? Would it matter if John was your 16 years old son?

__________

My exchange with Slawek is below:

Me: I am going to assume your scenario refers to all cancers, not just one strain of cancer. Why am I getting visions of Howard Roark and his architecture plans? Actually, that's the problem with your scenario: we're not talking about architecture--we're talking about someone unreasonably withholding vital information that we know will save millions of lives. Again, the key tipping point is the fact that we know that John has the cure for cancer. Thus, this isn't like torture, where we must question the validity of the information or whether the source has the information. Here, we know the cure for cancer exists within this man and will save millions of lives. At some point, shouldn't individual liberty give way to assured benefits for all of humankind--assuming all other avenues have been exhausted completely? Your situation is extremely complex because we are taking a human life, so we are not discussing liberty per se, but a man's life. My answer? I don't know.

Slawek: You needlessly see a dilemma here. Let me simplify this for you: John is your 16 year old son. Are you still unsure of what course of action is to be taken?

Me: Yes, because I cannot envision a scenario where my son would withhold life-sustaining medicine from the public when threatened with death. The more likely scenario is that I would represent him and demand billions of dollars in exchange for the cure. Private property is not always sacred--that's why we allow condemnation proceedings, as long as the government pays proper compensation.

Your hypothetical is complex because we're not talking about property, but about guaranteed results affecting human lives. Your scenario is an offshoot of the age-old question of whether you would shoot one person to save a thousand. When I first saw that question, I thought two things: 1) I wouldn't personally shoot anyone; 2) it wouldn't matter anyway, because someone cruel enough to offer that kind of Catch-22 choice would probably kill everyone regardless of my decision. So, what's my answer to your hypothetical? There is no good answer. That's my answer.

Slawek:
Let me further constrain this scenario: nobody cruel or crazy can do anything to John. Whatever you decide will be done. What do you decide should be done?

If you have a solid foundation of morals and virtues, which is applied to every single individual in the same way then the answer is simple: nothing should be done. You cannot decide to deprive a man of his life (his property) for another man's benefit, unless you agree that another man can deprive you of yours. To agree to this is to reject your life.

If you cannot decide what you would do in this situation then your moral foundation is convoluted and contradictory. The test of your morality is the ability to apply it to every situation without making concessions or creating exceptions for certain situations. Whatever applies to another man, applies in the same way to you.

What if the subject in question would be me? The answer is clear unless you lack the basic instinct of the will to live.

Me:
It isn't that simple, because under your scenario, all options lead to at least one guaranteed death. Overall, I do believe a person may act so unreasonably as to forfeit his right to live; however, your scenario is complex, because John isn't interfering in another person's life. He's holding back progress, but that's not interference per se--it's unreasonable unselfishness. Thus, the simplified question is whether unreasonable unselfishness may result in a justified loss of life. I will give you the lawyer's answer: "It depends."

Slawek:
Your analysis is wrong. One option leads to murder, the other option leaves everything unchanged. The scenario is anything but complex. It poses simple questions: would you have your son killed to help millions of people? would you want people to kill you to help millions of people?

My answer is simple: no. I would not have anyone killed for the benefit of another man. no exceptions.

I could have also thrown in that your other son is dying of cancer which would really have made for an awkward scenario. The right answer in that case would have been the same: you don't take one man's property (life) to benefit another.

Me: Do you agree that not doing something may result in death? Here, not sharing the cure will result in either a) the guaranteed deaths of millions of people; or b) the guaranteed death of one person. Again, there is no dispute that all options lead to at least one death where action or inaction is the proximate cause of the death(s). Thus, to label one option"murder" and another "the refusal to sustain life" is splitting hairs. Overall, the question is whether unreasonable selfishness may cause a man to forfeit his right to life when his death will save millions of lives.

Let me throw the question back to you: would you shoot Hitler if you had the chance?

Slawek: Doing nothing does not result in anyone's death, it leaves the situation unchanged. Not helping someone is not the same thing as hurting them. It is not hair splitting, these are entirely different things.

The intentional murder of a person is an entirely different affair from not helping someone. You prosecute a man for murder, you don't prosecute a doctor who was on vacation when a man died of a heart attack.

Also, are you metaphorically comparing Hitler, a man who directed the murder of millions of innocent people, to John who did absolutely nothing?"

You can only decide to kill John for the benefit of other if you accept the premise that his life does not belong to him. By accepting this, you must also accept that your life does not belong to you. There cannot be a functioning society based on this premise.

Me: There is a difference between someone who lacks the power to save lives and someone who voluntarily refuses to save lives based on irrational and unreasonable selfishness.

In any case, if you wanted to prove a point about universal healthcare, you've used an ineffective hypothetical. The real issues with universal healthcare are cost control and levels of coverage, not a mad scientist's unreasonable refusal to save lives.

Slawek: Irrational and unreasonable? We'll never come to a conclusion if you start injecting subjectivity into this. Don't you find it irrational and unreasonably selfish for a heart surgeon to go on a 6 month vacation? He could be saving lives instead. How irrational and unreasonably selfish of him.

This has got nothing to do with universal health care. Not a single thing. I wanted for people who care to read it to realize that their moral framework is flawed and weak. It is in fact so weak that everyone that read this note would refuse to answer. Not give the wrong answer, mind you, but simply refuse to answer. You were intrigued enough to try to find flaws in the scenario, but still, you didn't answer. You've done every single thing not to answer so far.

You won't decide what to do in John's case because you'd see a contradiction in your actions. You don't want to kill John, but you do want millions of people to be saved from a terminal disease. But why do you just not say: kill John?

Bonus: more thought-provoking questions here.