Archive for the ‘The Big Picture’ Category

Utilitarianism Invades the Window Seat

How little money matters compared to philosophical principle! Who cares if you end up refunding the fares of all passengers (as United did), or if you have to pay fees to lawyers to participate in hearings in multiple state, federal and local venues (as United likely will), or face legal action by the person you caused to be dragged off the plane with a bloody face (as United is). Only by maintaining your monopoly of violence undefiled can you assure that proper philosophy prevails in your friendly skies.

“The Administrative State”: Nothing Less Than Our Civilization

We have enshrined these activities in programs that we shield from political interference, or establishing implementing regulations through a notice-and-comment process that makes them hard to undo. We set our courts to guard these activities through various enforcement mechanisms. And we empower government attorneys and regulators with various degrees of autonomy to prevent interference, including presidential interference, with their actions. To be sure, nothing can be set in immovable stone. Even the Constitution may be amended. But he administrative state is not supposed to be easily movable. It is, after all, our civilization we are protecting.

A Most Telling Consent Decree

At this writing, we don’t know whether the proposed consent decree between the City of Baltimore and the U.S. Department of Justice will ever be approved and go into force. But its 215 pages are worth a read. Sometimes it’s not so much what a document says as what it presupposes that is most telling.

Beyond Big Steel: A Search for Purpose

For a hellish week in October 1948, not breathing that air was not an option. An atmospheric inversion had trapped the emissions from the steel plant and the zinc works in this little pocket of the Monongahela valley, and people started to get sick and die, especially downhill from Mr. Uhriniak’s house. A contemporary map that plots nurse visits tells the story: higher up and further away was safer.

A Litigator Ponders the Election

The clog can be as simple as an explanation of behavior or motives that might be possible but just doesn’t seem likely. Sometimes it’s starker: an inconsistency that is never explained away, or, when the issue is sanctions against your client, an acknowledgment of wrongdoing that does not seem sincere enough. In the weeks leading up to the trial or hearing, you keep expecting that the client, properly though ethically prepared, will be able to explain the contradiction better, or will not only acknowledge an undeniable misdeed but do so in a way that demonstrates contrition, insight, and a determination to do better. If you were scripting it, you might find a way to knock that explanation or that contrite speech out of the park. But there are rules against actually putting words in your client’s mouth, and anyway, the clients who could best use being scripted this manner are always the least educable; even if you tried to train them, they would still tell the story their own inadequate way. And then judges and juries give you that expression.

Lessons of the Levees

New Orleans had to be rebuilt, of course. It was too important commercially, socially, and artistically, not to rebuild – and the dynamism and new blood evident in many formerly devastated areas, including the infamous Lower Ninth Ward, which I visited on my trip, demonstrate the value wrought by the commitment not to let New Orleans die. The city must thrive again, and can only do so in the zone the levees protect. But in a larger sense levees are a state of mind and of being we need to question. They create safety at a heavy price, safety that will not always prove reliable, and they defer failure until catastrophic events, giving rise to a false sense of permanence before the reckoning comes.

Is Unconventional Obligatory? Freedom of Expression vs. Equal Protection Before the Footlights

The coming fight is over one particular form of unconventional casting, placing white actors in non-white roles. Acceptance of non-white actors in white roles is fairly widespread. However, there is a resistance when the traffic runs the other way. It is argued that this is “appropriation” of the ability of oppressed and silenced minorities to tell their own stories and contravention of the wishes of authors, and that it unfairly curtails the already limited career opportunities of minority performers. I know of no test cases yet, but it looks likely some disappointed white actor will bring one sometime soon. And when that actor’s suit is brought, I predict the right of theatrical employers to discriminate will be upheld.

Here’s To Party Elites

When candidates complain that this system is “rigged,” what they generally mean is that the will of the voters is tempered or overridden altogether by the will of the party elders. But is that a bug or a feature? I’m here to argue it’s a feature.

“Partner” and Other Big Firm Euphemisms

One learns that “[c]ompensation adjustments are being used in most firms to deal with underperforming partners…” That phrase “deal with” makes it sound as if “underperformance” were some form of misbehavior that the headmaster will need to address. Okay, so we know Altman Weil are really only talking about cutting people’s pay. But it can get worse. We learn that “chronic underperformers are being counseled out of their firms.” Don’t slip and fall in all that euphemism.

Constitutional Rights Under Assault in Apple Encryption Fight

Assuming that the equivalency of our cellphones and ourselves is near-complete now, and that it will come even fuller soon, are we willing to allow phones to be treated as if they were separate from ourselves when it comes to our limited but precious privilege against self-incrimination? The DOJ’s paradigm is that cellphones are like documents or things external to ourselves, things which may lawfully be seized and searched, given probable cause, even to incriminate us. But is that really different from saying that one’s brain could be seized and searched? Back in the days when “telephone” meant a communications device that lived on a desk, yes, it was different. Now, when “phone” means a computer into which we pour so much of ourselves (and which happens to include voice communications among its myriad of functions), the difference grows harder and harder to maintain with a straight face.