the archives of f/k/a . . .

It’s not designated HR 1984, but the so-called Employee Free Choice Act (HR 800, S. 1041, 110th Congress) sure does have an aura of Orwellian rhetoric about it.

In his “The View from Here” column for the Schenectady Sunday Gazette, yesterday, Word Watcher and Hypocrisy Hound Carl Strock says he likes the name given to HR 800, because it “is almost exactly the opposite of the true purpose of the bill.” (”Employee fee choice? Not exactly,” Aug. 17, 2008). Although his columns are not available at the Gazette’s free website, Carl often summarizes them at his Strock Freestyle weblog, and he did just that in a posting called “Employee Free Choice?.” In the post, Carl asks:

. . . . If you’re a labor union and you lose 40 percent of the elections in which workers vote whether or not to have you represent them. And further, if you find it relatively easy to get unorganized workers to sign cards saying they want you to represent them, especially when you stand right over them and watch them sign what do you do?

He replies: “The answer is obvious: You promote a federal law to forbid elections and to accept signed cards instead.” Then, Carl wonders “And what do you name the proposed law?”:

That’s easy too. You don’t name it the “Election Suppression Act,” or, the “Strong-Arm Sign-Up Act.” You name it the “Employee Free Choice Act,” as any student of George Orwell could tell you.”

The bill has passed in the House, but seems stalled now in the Senate. When you see that all sorts of Democratic good-guys, including Barack Obama, are supporting EFCA, you might think that Carl Strock has surely gotten it wrong. However, here’s how Thomas at The Library of Congress summarizes HR 800:

“Amends the National Labor Relations Act to require the National Labor Relations Board to certify a bargaining representative without directing an election if a majority of the bargaining unit employees have authorized designation of the representative (card-check) and there is no other individual or labor organization currently certified or recognized as the exclusive representative of any of the employees in the unit.”

. . . The AFL/CIO is the primary proponent — and probably named — EFCA, and it argues that The Employee Free Choice Act would “level the playing field for workers and employers and help rebuild America’s middle class.” Indeed, the Labor Council says:

“It would restore workers’ freedom to choose a union by:

* Establishing stronger penalties for violation of employee rights when workers seek to form a union and during first-contract negotiations.
* Providing mediation and arbitration for first-contract disputes.
* Allowing employees to form unions by signing cards authorizing union representation.”

To be honest, the first two provisions above do seem like fairly benign ways to achieve the goal of giving workers Freedom to Choose. But, Carl Strock is absolutely correct when he says in his column that “you don’t need a Ph.D. in psychology to see what the result will be,” when you permit “signing a card handed to you by a possibly pushy or intimidating organizer” to count just as much as a secret ballot. As an example, Strock tells of a local experience back in 2001, when a union seeking to organize the warehouse workers at the regional Price Chopper grocery chain:

“readily got the approximately 225 signatures required to force an election, but by secret ballot only some 130 workers voted in favor of unionizing.”

What the unions don’t tell you, according to Strock, is that they already win about 60 percent of their organizing elections. Taking away the secret ballot in the hot-house atmosphere of an organizing campaign seems like a very un-American way to ensure Free Choice, although it surely will increase the win-loss stats of Big Labor. Indeed, when asked if he would “be outraged” if the situation were reversed and employers could defeat a union organizing drive by getting workers to sign no-union cards, Frank Natalie (President of Schenectady’s AFL-CIO affiliate), admitted, “Yes, I would.”

. . . .. bipartisan? . . .

It’s no secret that Big Labor is an important part of the base of the Democratic Party. But, the AFL-CIO boasts that EFCA is “supported by a bipartisan coalition in Congress.” Being a curious guy, I clicked through to see their lists of the bill’s co-sponsors. There are over 200 co-sponsors in the House, but going down the alphabetical list, I didn’t hit a Republican name until I got to #72. Fossella, Vito (R-NY-13), and the handful of additional GOP sponsors were clustered in a few Blue states with strong unions. On the list of 47 Senate co-sponsors, there were no Republicans, with the only non-Democratic sponsors being the two “Independents,” Joe Lieberman and Bernie Sanders.

The abuse of the word “bipartisan” had long been a pet peeve of mine. For me — and for Merriam-Webster, and Wordsmyth, and OneLook Dictionary — the adjective “bipartisan” means

• supported by both sides, and
• more specifically, “composed of, representing, or supported by two parties or factions, esp. two political parties.”

Sure, as the American Heritage Dictionary states, bipartisan means “supported by members of two parties,” but a true “bipartisan solution” requires actual support by both major parties, not overwhelming support by one, with a couple of the other party’s outliers somehow persuaded to go along.

Clearly, the Employee Free Choice Act is not bipartisan in any meaningful (honest) sense of the word. It is a creature of the Democratic Party, doing obeisance to Big Labor in an election season. Unless somehow persuaded that Strock’s analysis and my own are wrong, it is exactly the kind of wrong-headed issue that I would love to see Barack Obama oppose as a matter of principle — perhaps while supporting the bill’s other provisions. Of course, neither Carl nor I just dropped out of the clouds yesterday, so we’re not holding our breath. Nor, I bet, is George Orwell.

my chrysanthemum
faces the direction
she chooses

a hard choice–
round charcoal, nuggets
or white

… by Kobayashi Issa, translated by David G. Lanoue

. . . Uncool.

So far, the f/k/a Gang is not warming up to the new search engine cuil [pronounced "cool"], which went public on Monday. See “Former Employees of Google Prepare Rival Search Engine” (New York Times, July 28, 2008) Cuil says it is far more comprehensive than Google (indexing “all the internet” not just part of it), and that they’ll both protect the privacy of users and help you find more relevant results — by looking at the context of the searched term rather than just the popularity of the page where it is found, by giving you longer excerpts from the pages found, and by providing images to assist in your culling through the results.

Saul Hansell, of the NYT “Bits” weblog, had about the same reaction that I did on Monday:

I played with the site a fair bit when it turned on this morning. So far it doesn’t do much for me. My test of Ms. Patterson’s claim about the size of its search index was to type in the names of some not-so-famous high school and college friends. In half a dozen tries, Google consistently found more pages and put the more general and authoritative pages higher.

Many across the internet have had similar reactions in their reviews, including Tim Beyers of The Motley Fool, who wrote “Google is Cooler than Cuil” (July 29, 2008). The Guardian quotes a Techcrunch commentator: “If this wasn’t started by some ex-Googlers, nobody would give a hoot.” [update (Aug. 2, 2008) S. E. Kramer at Popular Mechanics has a lengthy review and says: "it's hard to see why anyone would use it as a backup engine, never mind as a primary one."]

Meanwhile, linguists have looked into Cuil’s claim that their name is derived from an old Irish word for “knowledge” and found it lacking. See Language Log and Language Hat. Language Log’s Mark Liberman notes: “There are two words `cuil’ that I know. One means `enmity’ or `bad attitude’ or `resentment’, . . . The other means `fly’.”

Others, such as Hanno Kaiser at the Antitrust Review weblog (see here and there) and Phillipp at Google Blogoscoped are having fun with the frequently misplaced photos that Cuil includes with their listings. (e.g., George Pataki for Bill Clinton, Martin Luther King, Jr., for Mahatma Gandhi) Some of the linked photos are rather bizarre and definitely funny. Don’t go asking for a date based on the image alone!

I’ve also noticed that if you right-click on a Cuil image, you don’t get referred to the original image Cuil has culled from the internet. Instead, you find the image on a cuilimg.com webpage. If you left-click on the result image, you are most often brought to a page that doesn’t even contain that image.

Thus, this photo of the street signs at the Schenectady intersection of Church and State Sts. (which I snapped myself) is included with many of the results when you Cuil-search “David Giacalone.”. But, the way Cuil has things arranged, you’d be hard-pressed to know that it originated here at f/k/a.

Monday night, like most first-time Cuil users, I did the vanity search of my own name, “David Giacalone.” The results were depressing. It took 14 pages before there was a direct link to this weblog, which is — let’s face it — the thing I’m best known for in cyberspace. On Tuesday, there was a link to f/k/a on the first Cuil page, but it gave no title for the posting, and showed mostly nonsense font for the text — not exactly likely to lead to a click-through. You then had to go many pages deeper into Cuil to find another link to f/k/a. Both Google and Yahoo! start right off with links to my homepage, when someone searches for “David Giacalone,” and Yahoo!’s second link is to our informative About page. A prominent Cuil result was to a site that said “No Profile has been submitted by David Giacalone.”

As the proprietor and author of this weblog, however, my concern with Cuil results goes much deeper than quibbling about misplaced and unidentifiable images, or over what happens when you search my name. If you come here often, you know that I have long been most amazed and grateful over our placement in Google and Yahoo! search results. (e.g., way back in May 2005, and just last May) For a wide variety of topics that mean the most to me, f/k/a lands at or near the top of the search results of the major search engines. As a result, my Stats Page tells me that this little weblog has had well over 100,000 visitors referred by Google in the past two years.

However, my browsing of topics at Cuil suggests that the flow of visitors will be greatly reduced if too many people switch from Google and Yahoo! to Cuil. And, because we often have quite detailed (and, yes, thoughtful and entertaining) pieces on topics that catch our fancy or our conscience, Prof. Yabut and Mama G. have concluded that the searching public will be the losers, if they switch from Googling to Cuil-ing.

For example:

• Baseball Haiku: Nowhere else on the web will you find as many “real” haiku about baseball as we’ve got here at f/k/a. Our baseball haiku page went up in April 2005 with dozens of haiku and senryu on the subject. We’ve also been telling you about the wonderful Baseball Haiku book for a year and a half — and posting much more of its contents than any other website (because so many of our Honored Guests are included in the book). If you Google “Baseball Haiku”, our baseball haiku page is the first result, and our first major post about the book is the second result. In contrast, if you Cuil-it, you will find page after page of links to vendors selling the Baseball Haiku book, but no link to f/k/a until page 9. And, that link doesn’t even go to any of the many pages with the term “baseball haiku” in the title, which focus solely on the topic.

sides chosen
the boy not chosen
lends me his glove

…….. by Ed Markowski - Baseball Haiku (2007); bottle rockets (7:1, 2005)

• “got breastmilk?” As we noted yesterday, the story of the “Got Milk?” folks going after the Alaskan breastfeeding advocate Barbara Holmes, who made a few “got breastmilk?” t-shirts, for trademark infringement has received a lot of blogispheric attention over the past week. If you Google /”got breastmilk?” alaska/ you’ll find nothing but links to relevant weblog posts (including ours) on the first page, and then many more after that. However, if you Cuil it, you will be steeped in links to WIC programs and advocacy groups, but not one of the measly 48 responses is about the trademark controversy. (One bonus from Cuil, however, was finding Barbara Holmes’ website.)

• Speed Limits and Gas Efficiency: This important and timely topic only pulls up four results at Cuil, none of which discusses the science or politics of the issue. On the other hand, Googling /speed limits and gas efficiency/ garners over 200.000 results, with the national policy discussion monopolizing the first page, which includes a link to a major post here at f/k/a.

• Obama Satire: Our post on The New Yorker cover is the 4th result today (it’s been higher) when you Google /Obama satire/. When I Cuil it, that posting does not appear on the first twelve pages of results (and I have no patience to keep clicking to see if it appears there at all). “Nuff said.

I could go on and on, but there would be little to gain from it. My biggest concern about the Cuil results I’ve seen so far is that it will be very hard for haiku fans to find the treasure trove of poems by each of our Honored Guest Poets. With Google or Yahoo!, searching the name of one of our poets will almost always bring their f/k/a Archives Page as one of the first few results (or at least on the first page). I tried lots of their names with Cuil, and could not find our archives pages listed at Cuil (although each of those pages has the poet’s name in its title), even when looking through a dozen pages of Cuil results. When there was an early link to f/k/a, it was often to a post that had no poetry and merely listed all 26 of our Honored Guests.

Like many others who have experimented this week with Cuil, I’m not sure what would draw me back. Rather than finding more relevant results than with Google or Yahoo!, I kept finding merchandisers and links to non-substantive mention of the issue searched, or to blog aggregators and not the posting in question. I’m going to spend my limited time with Mssrs. Google and Yahoo, and maybe head over to Cuil — with low expectations — if I strike out with the other two. Feel free to join me sticking with what works.

afterwords: (Aug. 2, 2008) Google says it has over 100,000 results for the query /Cuil responses/ and the post you are now reading has been #1 the past couple of days. The same query at Cuil has 26 results, only five of which are actually presented — none of which is this posting.

using his nose
the dog searches
the violets

… by Kobayashi Issa, translated by David G. Lanoue

one glass of wine
Google keeps asking
“Did you mean ____?”

stone sober
Cuil keeps saying
“no results were found”

.. by dagosan

. . Thank you, Judge Alvin K. Hellerstein . .

In a post at Overlawyered.com, I learned this morning that Judge Hellerstein, of the Manhattan federal district court, refused last Thursday to approve a legal fee of $7 million for representing four Pentagon workers’ families, because it “would reflect a very large windfall,” given that the firm’s “entire strategy seems to have been to coast on the work of others.” The decision was part of the In Re September 11 Litigation proceedings and the firm was Maryland’s Azrael, Gann & Franz.

See “Judge Overturns Accords in 4 Suits by 9/11 Victims” (New York Times, July 25, 2008); “Judge nixes ‘rich’ 9/11 deal” (New York Daily News, July 25, 2008); “Judge Blasts Md. Law Firm for Seeking ‘Windfall’ Fees in Sept. 11 Cases” (ABAJournalNews, July 25, 2008).

As Dan Slater reported at the WSJ Law Blog (July 25, 2008), “Here are some reasons why, according to Hellerstein:”

• “[Jonathan Azrael] did not function in a liaison capacity.”
• “Neither he nor any lawyer in his firm appeared, according to my memory, to argue any motion or present any pleading. He or another member of his firm attended most conferences, but rarely spoke.”
• “Although the description of his services contains self-flattering statements of his contributions to the common effort, they are all conclusory and I have no perception of any contributions on his part.”
• “Azrael’s entire strategy seems to have been to coast on the work of others, and to wait for last position before entering into any meaningful settlement discussions with respect to his clients. Azrael’s strategy made little contribution to the progress of the cases before me, or to the settlements that largely have resolved this litigation. . . And he sought, as well, to advantage his clients by leveraging on Motley Rice’s settlements.”

Bravo to Judge Hellerstein for refusing to automatically approve the Azrael fees and reminding the p/i bar of the principles to be applied to contingency fees. As we have long argued [at length, with many citations and links, in our essay "contingency fees: risk matters"]:

The reasonableness of a contingency fee in a particular case will depend on how much risk the lawyer assumed of working extensive hours and incurring expenses without adequate compensation, and how much skill and exertion it will take to perform the tasks involved. The validity of the fee arrangement will also depend on whether the client was adequately informed (given his or her level of sophistication and knowledge) of the relevant factors when negotiating the fee level with the lawyer. The necessary corollary is that applying a “standard” fee to each client [be it 25%, one-third, or more] without taking the degree of risk into account is unethical, because it will inevitably overcharge many clients. [For more detail, see our 4-part essay on the ethics of contingencies fees, including the importance of risk and the lawyer’s duties; and our post on related fiduciary duties.]

These principles are particularly relevant in the vast majority of personal injury cases that are not part of multi-plaintiff, very public litigation, but instead involve everyday cases with typical clients (e.g., car accidents, slip-n-falls, etc.) — the “bread and butter” of the typical p/i practice. Such cases are virtually never scrutinized by a judge and are ripe for over-reaching by lawyers and over-looking by disciplinary authorities.

So far, the only actual discussion of Judge Hellerstein’s decision in the “blawgisphere” has been in the Comment section of the posting “Judge Hellerstein Lambastes 9/11 Law Firm over Fee Request,” at the WSJ Law Blog (by Dan Slater, July 25, 2008). [but see July 29 update below] The WSJ comments contain many of the old excuses foisted on the public by p/i lawyers for their refusal to vary fees with the risk involved in a particular case. I will be keeping an eye peeled to see whether p/i lawyers and legal ethics experts will be mentioning, discussing and opining on Hellerstein’s action.

As in my post last December, “unconscionable silence over Graubard’s $42 million contingency fee,” re Graubard v. Miller, I’m afraid that the Contingency Fee Omerta rule will kick in (the One-Third-Third Rail), preventing and averting talk in public about the judge’s refusal to accept a 25% fee automatically [or even the 15% he was applying to other lawyers in the 9/11 Litigation]. Why? As I said in December:

Any discussion about the possible invalidity, unreasonableness, or unethical nature, due to inadequate risk [or work] in a particular case, of a [25% or] one-third or 40% fee charged to any particular client, presupposes that contingency fees are supposed to relate to the actual perceived risk in each separate case. It directly undermines the attitude of the p/i cartel that the existence of any risk justifies any percentage rate that is permitted in the jurisdiction, or any rate agreed-to by the client (absent, perhaps, actual fraud or felony on the lawyer’s part, or the extreme mental incompetence of the client). And, it particularly condemns the near-universal practice of presenting as a fait accompli a “standard” percentage rate to virtually every client — a rate that is usually the maximum permitted in the State absent special judicial consent to go higher.

This is another instance when I would love to be pleasantly surprised by my brethren at the Bar.

p.s. As I said in a comment at the WSJ Law Blog: This is not a “Tort Reform” issue (which limits the ability to sue or the amount of damages) as much as a Legal Ethics and Client’s Rights issue (assuring that the client gets all he deserves from the damages awarded, and the lawyer only takes what he deserves). If the Azrael firm succeeded in obtaining a larger award than other firms, it should be compensated by getting a fair percentage of that larger award, not by taking an unreasonably large share of it.

update (July 29, 2008):  When trying to find online discussion of this case yesterday, I missed Carolyn Elefant’s posting “Judge Overturns 9/11 Settlements” (Legal Blog Watch, July 25, 2008).  Carolyn questions Judge Hellerstein’s reasoning, saying:

  “Huh?  How can the lawyers have coasted on the work of others, if they managed to achieve settlements well in excess of similar cases?  The judge’s ruling seems internally inconsistent.  While I agree that it’s appropriate to cut contingency fees to reflect a firm’s reduced risk in bringing a case forward, any reduced risk that Azrael may have achieved while waiting to file its clients’ claims was counterbalanced by the extraordinary results that the firm obtained presumably as a result of holding out.  Why should the firm be penalized?”

My response to Carolyn is something like this:

 Risk is by far the primary factor in determining the reasonableness of a contingency fee.  By filing late in this 9/11 Proceeding, the Azrael firm removed at least three of the primary risks when taking a p/i case: Are we going to win a significant amount of money for the client? Will the “defendant” have deep enough pockets so that we can expect to collect? And, are we likely to have to do major amounts of work (motions, pleadings, trial prep, etc.) in order to prove our case and secure an award?

Therefore, if 25% was the maximum permitted in these cases, Azrael should have asked for a number significantly less than that from the start.  Even the 15% contingency fee allowed most of the other firms seems high, compared to the limited risk involved, but 15% should have been the ceiling.  Remember, the risk is what justifies asking for a fee that is significantly higher than a reasonable hourly rate.  (Which reminds me: Once you know you have a valid 9/11 plaintiff, with a healthy payout guaranteed, why is any fee other than an hourly or flat fee justified other than habit and the p/i bar’s refusal to offer clients the ethical option of different fee structures?)  When setting a reasonable hourly rate, the firm’s experience and superior skills certainly allows it to charge more than the hourly rate of less talented lawyers, but wouldn’t normally permit it to double the customary rate nor ask for a bonus the size of the one sought here.

In general with contingency fees, the ability to get a bigger award for you client is compensated by taking a fair share of the bigger award.  The lawyer is not the client’s partner in a business enterprise; he is a skilled worker helping the client to get a good result.

For example, if Azrael got twice as much for a particular client as most plaintiffs were getting — say $3.5 rather than $7 million — a 15% contingency fee would be $1,050,000, which is $525,000 more than the typical lawyer handling a comparable client [15% of the typical $3.5 million award is $525,000].

Isn’t half a million dollars enough of a skill-and-strategy bonus for this law firm for the amount of services performed and risk taken?  If, instead the firm takes 25% of the full $7 million, its $1,750,000 fee would be three times as much (well over a million dollars more) than the typical firm in this proceeding received for representing a comparable client.  That eats away an awful lot of the improved award accomplished for the client.  Who deserves that extra million dollars, the client whose injury is the whole basis of the enterprise, or the lawyer, who was taking very little risk and apparently did very little work?  In addition, we don’t even know if it was procrastination or some other unimpressive factor (the clients’ delay), rather than strategy that caused the late entry into this case.  There is nothing illogical or inconsistent with Judge Hellerstein saying both that the awards seem too large and the fees seem excessive.

Twice this past week, an otherwise-thoughtful person sent an email to me and dozens of other people, putting all of our names in the “To” field. Like many of you reading this now, neither Sender stopped to think that they were invading the privacy of recipients who did not want to share their email addresses with one or more of the other addressees — and who rightly want to make that choice for themselves. Even worse, because the Senders requested or expected the messages to be forwarded to many others, they set the stage for much broader privacy invasion and unwanted spamming. (In addition, one created a great risk of swamped In Boxes by asking responders to “Reply to All”).

After trying to diplomatically explain this problem to many correspondents over the past decade using return email, I’ve finally remembered that I have this little soapbox for exposing and explaining (kvetching and korrecting).

Summary: (explanations and instructions below):

• Sending Original Email: Do not send an email message to more than one person by putting their names in the “To” field (unless you are certain that each recipient has already shared his or her email address with every other recipient and will not forward their addresses to others). Instead, use the Bcc field [from "background carbon copy"]. Each recipient will receive a personally-addressed Bcc copy, with the email address shielded from the other recipients.
• Forwarding: If you are going to forward an email that has the addresses of prior recipients in it (the address is there, even if you only see the name on the To or Cc line), first remove all prior email addresses. [Yes, you can delete anything that you see in your email window, the same way you delete any text in a document.]

Lucky for all of us, Judith Kallos has thought about this netiquette problem, and hundreds thousands of others, and shares her knowledge with clear and lively prose, at NetManners.com, plus two weblogs [E-mail Etiquette Matters and the Business Etiquette Blog], as well as in several books. Her goal: “Using Technology to Communicate with Knowledge, Understanding and Courtesy!”

Therefore, rather than my turgidly judgmental preaching, here are some of Judith Kallos’s lessons for those who answer “yes” to the question: Do you forward emails with everyone’s email address in the To: field?

“Email Etiquette Info Courtesy of NetManners.com”

Her Essay “Courtesy #1” offers the minimal online basics you need to know “in order to be taken seriously in your online communications,” and advises:

(more…)

Like any normal American male, I often find myself both amused and appalled by the Fashion & Style Section of the New York Times. Appalled — and apprehensive over the state of our nation’s soul — was my main reaction to yesterday’s article titled “It’s Botox for you Dear Bridesmaids” (by Abby Ellin, July 24, 2008). In the piece, we meet bride-to-be Kacey Knauer, for whom “cosmetic interventions for herself and her entourage are as vital as the centerpieces or food.”

With help from an aesthetician, Kacey and many other women planning their weddings are now adding treatment plans for bridesmaids — “a quick chemical peel, say, or an injection of a wrinkle-filler,” or perhaps a series of Fraxel laser treatments over months [which "could set you back $1,200 a session"]. Over months? Yep:

“[Camille] Meyer of TriBeCa MedSpa suggests that a bride contact her the minute the question is popped. ‘ . . . If you have to do eight treatments, six weeks apart, that could take up to a year, she said.” And,

“It is no longer sufficient to hire a hairstylist and makeup artist to be on hand the day of. Instead, bridal parties are indulging in dermal fillers and tooth-whitening months before the Big Day.”

Okay, I admit that I’m a little bit touchy about this subject, and have been since certain female relatives strongly suggested that my brother and I needed to get haircuts for our sister’s wedding back in 1971. We both declined and were said by some to have “ruined your sister’s wedding photos.” [see their proffered proof at the head and foot of this posting] That little incident, combined with my natural distaste for ostentatious expenditures of money in the vain hope of creating a “perfect wedding” for the bride, plus many tales of chubby or pimply cousins left out of bridal parties, make me shudder to know that:

• “Dr. Fardad Forouzanpour, a cosmetic surgeon in Beverly Hills, Calif., said his business has increased more than 40 percent since he began offering what he calls Bridal Beauty Buffets in 2006.” And,
• “In the last two years, bridal party tuneups have increased roughly 25 percent, estimated Susie Ellis, the president of SpaFinder.com, a site that lists 4,500 spas worldwide.”

Even worse, it’s the over-30 brides (and grooms) — who simply should have better priorities — who are leading this new trend, as they are most likely to have wrinkly girlfriends and mothers. Happily, the NYT article informs us :

• “But for every accommodating pal, there’s another who feels going under the knife is beyond the duty of bridesmaid. Becky Lee, 39, a Manhattan photographer, declined when a friend asked her — and five other attendants — to have their breasts enhanced.” And,
• “A bride’s request that you whiten your grayish teeth can strain a relationship.”

Of course, the Times writer has cogent advice: “And how does a bride break it to a mother-in-law that she’d love her crow’s feet to be frozen into submission? Very delicately.” You can draw your own conclusions about this new trend in wedding-party beautification. Sadly, it looks like neither Issa nor I will be invited to be best man, or to give away a bride, at any posh weddings this year.

shielding a wrinkled
face…
paper fan of Edo

comparing my wrinkles
with the pickled plums…
first winter rain

looking up, wrinkles
looking down, wrinkles…
a cold night

tired of walking
my wrinkled arm
the flea jumps

lightning flash–
no way to hide
the wrinkles

entwined
by the maiden flower…
my wrinkled foot

the night spent looking
at my wrinkled hands…
autumn rain

………….. by Kobayashi Issa, translated by David G. Lanoue

rain on
my bald spot –
recalling dry-scalp Aprils

. . . . . david giacalone - Magnapoets JF
poem - Haiku Harvest (Spring 2006, Vol. 6 No. 1)

wedding rehearsal
she models her new
cup size

ceremony over
the bride unveils
her tattoo

… by roberta beary - Simply Haiku (Winter 2005)

hazy harvest moon
the face I met
when our skin was smooth

………. by David Giacalone - The Heron’s Nest (Vol. IX: 4, Dec. 2007)
- Happy 60th Anniversary to Mama and Papa Giacalone -

. . . . . . .

Everywhere I Look
by Roberta Beary

products promise me younger looking skin now that sixty
is the new forty in a world where no one grows old
movie stars with wrinkles look so last century

purple bouquet
it looked so good
in the store

- haibun from Frogpond, Vol. 31:2 (Spring/Summer 2008) -

. . . . . .

junk drawer
under a pile of tangled laces
our wedding portrait

…………. by ed markowski

Linda & Brian marry (April, 1971), without an aesthetician intervention. Naturally, the bride did not need one.

It’s been three years since I posted this quote — in a piece called “counsellor or mercenary?” — from Sol Linowitz’s book The Betrayed Profession (Scribners, 1999; the passage is also found in the June 1999 issue of DCBA Brief):

“Elihu Root . . . put the matter more simply: ‘About half the practice of a decent lawyer,’ he once said, ‘consists in telling would-be clients that they are damned fools and should stop.’

“Today there are too few lawyers who see it as part of their function to tell clients (especially new clients) that they are damned fools and should stop: Any such statement would interfere with the marketing program. The public pays, because the rule of law is diminished.“

Later in the same chapter, titled “Living the Law,” Linowitz notes:

“The doctrine that professionalism means respect for the client’s ‘autonomy’ and commands doing whatever the client wants is, after all, most convenient. Nobody ever lost a client by doing exactly what the fellow wanted, but much lucrative legal work has been sacrificed by lawyers who regretfully told prospective clients that this was something they were not willing to do.”

Sol’s words and quotations came to mind today, when I saw the Law.com article “Law Firms Held Liable for Fees in ‘Tissue of Lies’ Patent Suit” (New York Law Journal, July 23, 2008). Anthony Lin’s piece begins:

“A federal judge has ordered a patent holder and his lawyers to pay attorney fees for bringing an infringement suit based on ‘nothing more than a tissue of lies’.

Irving Bauer had sued Romag Fasteners Inc., a manufacturer of magnetic snap closures for handbags, for infringing a 1996 patent on a new type of closure he claimed to have invented.

Last week, in Advanced Magnetic Closures Inc. v. Rome Fastener Sales Corp., 98 Civ. 7766, Judge Paul A. Crotty of the Southern District of New York invalidated Irving Bauer’s patent (for magnetic snap closures for handbags), finding that Bauer’s testimony about his inventorship “bore clear indicia of fabrication,” and adding that he was “convinced beyond a shadow of a doubt” that Bauer was no inventor.

Here’s the part of the article that most interested me:

“The judge held New York law firm Abelman, Frayne & Schwab, which initially represented Bauer in his suit against Romag, jointly and severally liable for Romag’s attorney fees after Feb. 11, 2006. That was the earliest date, the judge said, Abelman Frayne should have realized expert testimony the firm planned to use to support Bauer’s claim had been contradicted by testing.

‘By persisting with this claim to trial, Abelman counsel played a central role in so unreasonably and unnecessarily multiplying the proceedings so as to give rise to bad faith litigation,’ the judge said.

Bauer replaced the Abelman firm in August 2007 with David Jaroslawicz of Jaroslawicz & Jaros. The judge held Mr. Jaroslawicz jointly and severally liable for Romag’s costs after Oct. 5, 2007, finding he also should have been aware of the deficiencies of Bauer’s claims.”

Romag’s lawyer, Norman Zivin of Cooper & Dunham in New York, said he had previously requested around $1.2 million in attorney fees, though he said the judge would likely modify that amount.

Judge Crotty’s willingness to hold the lawyers responsible for their opponents’ fees is a welcome change from my last direct experience with frivolousness petitions in 1990 (see my war story for some of the facts). At that time, I specifically asked that opposing counsel be liable for fees after bringing a frivolous claim against my client (which was contrary to the existing police vehicle accident report and their own client’s guilty plea to vehicular manslaughter), and then continuing to maintain the claim for four years, despite expert reports and legal memoranda making it clear they had no valid basis for a claim. [Remember, "frivolous" does not simply mean without merit, it means "without a reasonable basis in fact or law." See, e.g., Model Rule 3.1]

At the time, opposing counsel were outraged that I would ask that they be held responsible. The judge granted my motion for fees, saying that commencing the action was “irresponsible and frivolous,” and the failure to discontinue it compounded their bad faith. Nonetheless, he directed that the client corporation and individual pay our fees and costs, without even mentioning my request concerning their lawyers.

Root and Linowitz are clearly right: It is the lawyer’s job to say no when a client wants to press a frivolous claim, or when the lawyer is tempted sua sponte to make a baseless claim in order to curry favor with a client. The mere fact that saying no might lose you a client, or anger one, is not a good enough reason to go along. Lawyers are gatekeepers, with important responsibilities to the courts and the public. Seeing that Bauer’s lawyers might have to pay $1 million in fees should have a major deterrent effect on the rest of the Bar. It should.

The sole poem that I posted three years ago today gives me another idea for deterring cases like Bauer-Romaq:

in the misty day
no window can be seen…
a prison

 

……. by Kobayashi ISSA, translated by D.G. Lanoue

This one from one year ago today suggests another party we might want to intervene when confronted with such a “tissue of lies:”

thunder . . .
little leaguers chatter
silenced

……………………. by Randy Brooks - Baseball Haiku (2007)

These don’t seem to be related in law or fact, but are worth reprising from July 23, 2007:

mountain butterfly
from her boulder
to mine

moonrise . . .
cattle single file through
the narrow pasture gate

early morning cool
men in hard hats gather
on the last patch of grass

tongue out
the boy guides a new airplane
round and round

……………………. by Randy Brooks
“early morning cool” - the loose thread: rma 2001; Modern Haiku XXXII:1;
“moonrise . . .” - the loose thread: rma 2001; tundra 2
“mountain butterfly” - a glimpse of red: RMA 2000; Modern Haiku XXXI:2

Our mention last month of an upcoming FTC Debt Settlement Workshop attracted some “comment spam” from NetDebt, a for-profit company that “negotiates” with creditors in an attempt to reduce your overall debt. NetDebt calls itself a “100% online debt settlement solution” and emphasizes the participation of lawyers in providing its services (nonetheless, you apparently never meet your lawyers). They claim that “In some cases, your total debt will be cut in half.”

I first heard of NetDebt on June 9th, when they tried to plant a link from f/k/a to their affiliated weblog, in order to increase NetDebt’s online profile. When the Comment showed up for “moderation,” my response was: “I just looked at your ‘NetDebt’ web site and have many questions about your services — especially the fees. Until I get a chance to review it more fully, I do not want a link from this weblog to yours, and have removed your URL.”

Having now looked more deeply into NetDebt, I want to present my continuing concerns about their fees — which are 15% of the amount of debt you bring to their program (regardless of results or the number of creditors it must deal with), plus a “small” monthly service fee of $50.

For example, the so-called “flat” 15 % fee would be $1500 if you have $10,000 of debt in the program; $3000 for $20,000 of debt; $6000 in fees for a $40,000 debt load. The $50 monthly service fee quickly adds up, too, and would add another $2700, if you stay in their program the full 54 months.)

Although many debt negotiators make no mention of the cost of their services at their websites, it appears that similar percentage-based fees have become common among debt settlement firms. (See, for example here and there) update (July 25, 2008): As discussed below, in response to this posting, Charles Phelan has written an extensive”History of Debt Settlement Fees” at The ZipDebt Blog (July 25, 2008).

Despite the traditional lawyer reluctance to talk about excessive fees, I hope that legal ethics counsel or professors, other lawyers, and consumer advocates will help us determine if or when such fees are “reasonable” or appropriate for lawyers to charge. At a time when many in the legal profession are promoting the use of “alternative” and “value-based” fees instead of hourly billing — while offering so little guidance on how to make the switch in an ethically-responsible manner — it would be especially useful to hear what standards or criteria they believe should be applied to prevent excessive fees under our professional and fiduciary principles. My assumption is that “what the market may bear” is not an appropriate test for protecting consumers — especially unsophisticated ones in dire economic straits — from unreasonably high legal fees.

There are many voices on the internet warning about “debt settlement scams” and the money wasted due to the high fees. [For example, this post at the ZipDebt Blog, and this article.] An article from SmartMoney.com, “Debt Settlement Could Cost More Than You Think” (June 20, 2007), gives an excellent summary. SmartMoney says, “Debt settlement is, in fact, a perfectly legal solution for consumers who are in deep and seeking an alternative to bankruptcy. But having a debt-settlement company do the legwork for you is fraught with risk, not to mention outrageous fees.”

Still, unless the purveyors are engaged in actual fraud or deception, regulators can’t do much about non-lawyers charging excessive fees for a questionable service that exploits desperate people, beyond providing information and warnings. However, the legal profession can hold lawyers to a higher standard and should require lawyers engaged in debt settlement to charge only reasonable fees. As with many similar easy-money schemes, my guess is that the services would not be offered by members of the Bar, if only a fair price could be charged.

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Sen. John Warner (R-VA) . . . . . . . . . . .

. . . . . . . . . . . . . Sen. Barack Obama (D-IL)

If you’ve read our Efficient Driving Pledge back in April, you know the f/k/a Gang is celebrating the news that influential Republican Senator John Warner of Virginia “suggested Thursday that Congress might want to consider reimposing a national speed limit to save gasoline and possibly ease fuel prices.” See “Senator asks if nation’s drivers should slow down” (Washington Post/AP, July 4, 2008) The AP story continues:

“Sen. John Warner, R-Va., asked Energy Secretary Samuel Bodman to look into what speed limit would provide optimum gasoline efficiency given current technology. He said he wants to know if the administration might support efforts in Congress to require a lower speed limit.”

“. . . ‘The department’s Web site says that fuel efficiency decreases rapidly when traveling faster than 60 mph. Every additional 5 mph over that threshold is estimated to cost motorists “essentially an additional 30 cents per gallon in fuel costs,’ Warner said in his letter, citing the DOE data.”

On the other hand/thumb, if you’re a regular reader here, you must know that we are bemoaning and regretting the reaction of “our candidate” Barack Obama to Sen. Warner’s suggestion. As reported in the Detroit Free Press, “Speed limit idea said to save gas” (July 3, 2008):

“Presumptive Democratic presidential nominee Barack Obama’s spokesman said the Democrat would leave setting speed limits to the states and focus instead on renewable energy and improved efficiency.”

Barack took the correct and courageous stand against the summer gas-tax holiday during the Democratic primaries (see our prior post). But, his alleged cop-out on speed limits has left me with whiplash, wondering how many more of Sen. Obama’s principles will be sacrificed in his bid to win “blue collar” voters. Speed limits are no more an issue to be left for the states to decide than the Iraq war was an issue solely for federal politicians back when Barack was a State Senator speaking out on the war.

Michigan state Rep. Aldo Vagnozzi of Farmington Hills, recognizes the national scope of the problem. According to yesterday’s Free Press, he “introduced a resolution calling on Congress to reinstitute the national 55-m.p.h. speed limit implemented during the 1970s oil crisis.” At his website, Vagnozzi argues that:

“At a time when Michigan residents are stretching their dollars as far as they can to make ends meet, skyrocketing gas prices are only making matters worse,” Vagnozzi said. “By simply lowering the speed limit and slowing down on the road, we can increase fuel efficiency, decrease our gas consumption and provide consumers some relief at the pump.”

Most of today’s vehicles reach optimum fuel efficiency between 45 mph and 55 mph. For every mile-per-hour faster than 55 that a vehicle travels, fuel efficiency drops by about 1 percent. Efficiency drops off at a faster rate above 65 mph.

Lowering the national speed limit to 55 mph would:

* Save consumers money at the pump by increasing fuel efficiency, requiring them to buy less gas;
* Save lives by reducing the incidence and severity of traffic accidents;
* Reduce our dependence on foreign oil by reducing demand;
* Cut vehicle emissions by 10 percent.

Our fuel-savings post in April reiterated the lament:

“I hate to be cynical, but I don’t think there’s any chance that the American public — or their courageous leaders — will go along with lowering speed limits to 55 mph in order to save billions of gallons of oil a year.” This is another time when I would love to see one of my predictions proven wrong.

Perhaps leaders like Warner and Vagnozzi will indeed prove me wrong. But, they will need lots of support from other legislators and government officials to make fuel-efficient speed limits a reality. You still have time, Barack, to explain what your spokesperson really meant.

In April we opined: If politicians and the public were serious about achieving fuel economy — in order to save money and save Earth from greenhouse gases — they would start enforcing our speed limit laws and rollback the highway speed limit to 55 mph.

We continue to believe that the most effective, and surely the quickest, way to reduce our nation’s fuel consumption is to enforce the laws already on the books. For those who rather not click through, here are excerpts from our discussion on that topic:

A 2005 survey by the Governors Highway Safety Association confirmed what we already knew: almost every state allows drivers to regularly and significantly exceed the speed limit before they are stopped — and “Nearly all respondents reported a public perception that there exists a cushion above a posted speed limit in which officers will not cite offenders.

The range most often reported was 5-10 miles per hour above the posted limit. “ NewsMax.com, AP, “Survey: Most States Allow Speed Cushion,” June 13, 2005; Survey Executive Summary). One news report noted:

“Authorities patrolling U.S. highways tend to give motorists a cushion of up to 10 miles per hour above the speed limit before pulling them over, says a survey by a group of state traffic safety officials. The group found that 42 states allow drivers to regularly exceed the speed limit before they are stopped. [Editor’s Note: only 47 states responded to this survey; at least one of the non-responders — New York — clearly also has the speed cushion.]

. . . “Law enforcement needs to be given the political will to enforce speed limits and the public must get the message that speeding will not be tolerated,” said [Jim Champagne, chairman of the Governors Highway Safety Association].

“[And, yes, speed both costs and kills:] A study released in 1999 by the Insurance Institute for Highway Safety estimated an increase in deaths on interstates and freeways of about 15 percent in the 24 states that had raised their speed limit in late 1995 and 1996.”

 

A pledge from our political leaders to achieve energy independence from foreign oil barons and monarchs (despite the personal sacrifice required of all Americans) would be particularly appropriate today, July 4th. I’m listening, Sen. Obama — please renew my faith in your idealism and commitment to do (and say) the right thing. Join with Sen. Warner and let us see some of your across-the-aisle cooperation and leadership.

more resources (May 3, 2008): For a lot of information and inspiration (and some great bumper stickers) zoom over to iDrive55.org - the Drive 55 Conservation Project.

By the way: With the help of the Cruise Control lever, I kept my promise to abide by the 65-mpg speed limit on the New York State Thruway last week, while traveling over 700 miles to and from the Chautauqua Institution. Yes, I was passed a lot. More important, I achieved my best fuel efficiency ever. In fact, for a 200-mile all-Thruway segment of the return trip, my 2000 Mazda Protege, which was rated by the government at 30 mpg for highway travel, averaged over 35 miles per gallon. [And, yes, I would be happy to drive 55, if that becomes the law of the land or of our state.]

update (July 21, 2008): The lead editorial in today’s Schenectady Daily Gazette is headlined: “Large gas discounts available for motorists’ taking.” It points out the instant large “discounts” drivers can achieve merely by slowing down, and opines: “Unfortunately, even with gas selling at over $4 per gallon, they won’t do it; and few politicians have been willing to stick their necks out and say the obvious: that government should reduce the national speed limit, the way it did when there were gas shortages and skyrocketing prices in the 1970s, and enforce it.”

Sometimes, it’s really hard to avoid cynicism over phony politicians, greedy special interest groups, and — let’s be frank — the spoiled, self-absorbed American public. Case in point: the so-called safety law that goes into effect in California tomorrow, July 1, 2008, relating to the use of cell phones while driving. See Cal. Vehicle Code, Division 11, Chapter 12, Article 1, Section 23123; Cal. DMV: Wireless Telephone Laws FAQs.

Summary: Unless you are using the phone to make an emergency call to the police, a doctor, or other emergency service provider, no hand-hand cell phone may be used by the driver of a vehicle after July 1, 2008, in California. Also, drivers under 18 (who apparently have much less political clout than their elders) are quite annoyed, as they may not use any cell phone while driving, except for emergencies.

Which leaves this old cynic asking:

What were these guys thinking (or trying to achieve or avoid), when they decided to permit the continued use of hands-free devices while driving? They had to know what study after study has demonstrated: hands-free car phoning is just as dangerous as the hand-held variety, because the problem is mainly one of distraction (and “inattention blindness“), and not the number of hands on the wheel. DWP — driving while phoning — leaves the driver as incapacitated as does DUI, with slower reaction times, longer stopping distances, and poorer judgment. Plus, allowing hands-free calls is very likely to increase the amount of DWP. See., e.g., “Industry Pushes Headsets In Cars, Agency Sees Danger Hands-Free Cellphones May Be No Safer Than Hand-Held” (The Wall Street Journal, July 19, 2004); “Hands-Free Cell Phone Use Takes a Hit”  Cars.com, June 9, 2005, orig. pub. in Detroit News); “Cell Phone Users Drive Like Old Folks” (Univ. of Utah Press Release, Feb. 1, 2005).

afterwords (July 1, 2008): Many thanks to Scott Greenfield at Simple Justice for pointing to this post and adding his customary incite-full insights. See “Driving with Cellphones — the Anti View” (July 1, 2008) In addition to rejecting slippery slope arguments, Scott declares: “I (like David) fail to see any necessity in using a cellphone while driving that justifies any increased risk to any other human being under any circumstances. Want to call? Pull over. It’s that simple.”

update (Jan. 14, 2009): See our post with the good news: “bravo: NSC wants to ban all phoning while driving.”

J. Craig Williams explained the situation pithily at his weblog earlier this month (May It Please the Court, “Driving While Talking: California’s Newest Crime,” June 11, 2008):

“No more driving with one hand on the wheel, one hand on the cell phone and your mind somewhere else.

“Well, you’ll still be able to have your mind somewhere else, just not with one hand on the cell phone.”

As I said in a Comment at Craig’s weblog: “It is disappointing to see that California has adopted the unprincipled compromise of allowing hands-free phoning (in order to make believe the politicians are serous about safety) . . . Indeed, allowing hands-free DWP merely makes it possible for irresponsible drivers to find something else to do with the extra hand.”

When you look at their law enforcement scheme, the seriousness of the California cell-phone driving laws is further in doubt: The fines are relatively small ($25 for the first offense and $50 for subsequent convictions); no points will be taken off your license; and the Highway Patrol has announced that they won’t be pulling people over for merely using hand-held cell phones, although the law permits them to do so. See “Drivers, retailers prepare for state law on cell phones” (Marin Independent-Journal, June 23, 2008). Experience in other States, such as New York — where scofflaws predominate — makes it clear that immediate, strict enforcement is essential, to have a significant chance of achieving a serious level of compliance. When it comes to DWP, a safety-conscious Governor needs to be a Terminator, not a feel-good Kindergarten Cop.

update (11 PM, June 30,2008): I just learned that Washington State also bans the use of hand-held cell phones while driving as of July 1st. Here’s a good quote from an AP article:

But traffic-safety advocates say the new laws will have little impact.

“Laws like Washington’s probably will have a big effect on making people feel good about passing a law but zero effect on highway safety,” said Russ Rader, a spokesman for the Virginia-based Insurance Institute for Highway Safety.

However, the new laws could have a big effect on businesses that sell headsets and related projects.

Admittedly, I’m a little obsessed by this topic (which teaches us so much about the state of the American psyche and its politics), and have been writing against DWP for a long time. It was, in fact, the topic of both my very first piece of paid internet punditry: a March 2000 “Advocate This!” column for the now-defunct Prairielaw.com, entitled “Shut Up and Drive” (opening image), and a major op/ed piece written for the Schenectady Sunday Gazette (”Car-phone ban is easy way out,” May 20, 2001), at the time when New York’s then-Governor George Pataki had proposed to ban hand-held car phones.

Because I am greatly disappointed that the trend-setting largest state in the Union is heading down the same sham-safety road as New York, New Jersey and D.C., and because neither of these gems is available currently online, I’m going to indulge my editor’s prerogative and quote major excerpts from each piece below the fold.

In the Prairielaw piece, I expressed the hope that politicians would reject the “easy compromise” of banning only hand-held phoning by drivers, which would let them avoid a larger confrontation with the telecommunications industry and with cell-phone-addicted voters. My argument then is still valid and been validated by many studies: Banning hand-held phones will do nothing to lessen the inherent distraction caused by a mobile telephone conversation. For example, I argued in 2000:

“Studies show no safety advantage using hands-free phones. Banning hand-held phones may in fact make the problem worse by encouraging more car phone calling. Judging from its many ads for hands-free devices, the car phone industry might actually favor a ban on hand-held devices, as it would force millions to buy new models to make billions of additional phone calls from their cars.”

Sorry to say, that prediction has come true in car and car-phone happy California. See, e.g., “Hands-free law boosts headset sales” (Marketplace Report, npr, June 23, 2008); “Top Brands Leverage Hands-Free Cell Phone Laws” (OnLineMediaDaily, June 23, 2008); “Merchants see hot sales for hands-free devices” (Marin Independent-Journal, June 23, 2008)

Actually, the problem is far worse than it seemed just a decade ago. Back then, cell-phoning was something that most drivers only did occasionally and quickly. Now, a large segment of the American driving public are chronic phoners, making long, serial phone calls. By 2005, Americans chalked up a billion minutes a day chatting while driving, and the numbers have surely climbed dramatically since then, as many drivers have grown to view DWP as natural and their birthright. The trend is further exacerbated by all of those auto manufacturers that are now intensely advertising hands-free devices pre-installed in their vehicles, and cell-phone service providers offering plans with virtually unlimited calling time.

And, note: “A recently completed study points to a separate potential danger: Even truly hands-free phones can be time-consuming to dial. It found that headset users with voice-activated dialing took an average of 37 seconds to dial their calls versus 20 seconds for those who picked up the phone and punched the buttons.” Also, “[T]he Swedish National Road Administration installed cameras in 40 cars and found that drivers wearing headsets drove faster than drivers holding their phones. Braking time slowed by as much 45% for cellphone users, with no improvement for those wearing headsets.” See Agency Sees Danger above.

It is the intensity of the distraction — you have to process interactive communication without visual clues — and the duration of the calls that make DWP far more dangerous than the strawman comparative activities often pointed to by car-phone advocates, such as eating a hamburger, switching the radio channel or CD track, or even putting on mascara. Of course, as I noted in 2000,

“The reality, however, is that politicians don’t need more data on car phoning, they need more backbone.”

In 2004, National Highway Traffic Safety Administration’s administrator Jeffrey Runge said “The thing that disturbs me is that we have states and local municipalities making rules that basically give hands-free phones a free pass as being safe. That’s not good policy.” In addition, my Gazette op/ed piece argued:

“Even more worrisome, passage of this legislation will almost certainly preclude additional car-phone bans for many years to come. I can already hear the lobbyists and their legislative mouthpieces decrying the unfairness of any additional ban, because of the good faith ‘investment’ of their customers and companies in the ‘legislatively-approved’ hands-free devices.

” . . . This is clearly an instance where having no law is better than having a bad law.”

updates (July 1, 2008): See/hear coverage from npr’s Morning Edition, “California Driving: Footloose and Hands-Free” (July 1, 2008), which does a surprisingly poor job of explaining what is different about DWP, and notes (as did the LA Times today) that “It’s unclear whether the law will be uniformly enforced across the state.” Meanwhile, the Washington Post’s TechCrunch weblog suggests that “the real deterrent is public opinion” not the $20 fine, and concludes:

“There’s just one problem - some studies have shown that talking on hands-free devices are just as dangerous as talking on cell phones regularly.

“And of course one result of the new law will be that people who talk on their cell phones while driving now have to keep a lookout for the police, too, distracting them even more.”

Besides warning folks to “watch out for motorists fiddling with headsets,” an editorial headlined “Driving while phoning” [nice turn of phrase] in today’s Los Angeles Times makes a few points worth repeating:

“The cellphone restriction will prove worthy if accidents decline.

“It would be unfortunate if a majority of drivers responded by getting too comfortable with their new headsets and taking one more step toward turning their cars into mobile offices. As traffic worsens and people spend more time on the freeway, we look for ways to make the lost time productive. But driving while phoning or, more dangerously, while texting — oddly still perfectly legal for adult drivers — endangers lives and slows traffic even further.

“That leaves this safer solution . . . : Just turn off the phone until you turn off the engine. “

Want to know who’s to blame for California’s mostly-farcical hands-free cellphone safety law? The Mercury News says today that it’s Palo Alto’s Democratic State Senator Joe Simitian, a 55-year-old Boalt Hall law graduate, who has been pushing for it since 2001. At his legislative website, Simitian describes his professional background as “attorney, businessman and city planner.” (He has both a law degree and a masters in city planning from U. Cal. Berkeley.) Simitian clearly hopes to saves lives with his hands-free cell phone law, and I do not fault his motives. His site points to an article from MSNBC, “Hands-free phones are lifesavers, study says” (by Mike Stuckey, May 13, 2008) that describes a controversial study that predicts a savings of 300 lives a year in California from banning hand-held DWP. The study was by Jed Kolko, a fellow at the nonpartisan Public Policy Institute of California. The articles notes:

Most of those lives will be saved when the roads are wet or the weather is bad, said Kolko . . .

To a lesser effect, the laws reduce fatalities during rush hour, he said. “They don’t seem to have an effect on fatalities in good driving conditions.”

The f/k/a Gang was pleased to learn that Sen. Simitian has a new bill pending [SB 28] that would ban text messaging and e-mailing while driving. See “Legislation Outlaws Text Messaging While Driving” (KCBS.com, June 20, 2008). Of course, if he wants to get even more serious about saving lives and preventing accidents, we hope he will start working today on a total DWP ban in California.

Please click on the “more” link below to continue reading excerpts from my prior attempts to explain why a hand-held-only ban is “phony safety legislation,” that is not only dangerous, but actually worse than no ban at all.

in the middle
of the distraction –
an interruption

…………………. by dagosan

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Some of my more optimism-oriented friends seem at times to confuse their own good faith, open minds, and generosity of heart with the general condition of their fellow Americans. As a result, they thought I was being far too cynical after the Iowa presidential primaries. Like much of the media, they were thrilled to say that the Iowa results demonstrated that whites would vote for Barack Obama. My more-guarded reaction was something like:

“Iowa had a great outcome, but it tells us little about how whites will vote in states that traditionally have had more racial strife — especially those that have large numbers of Black residents or are suffering from economic distress.”

Sad to say, many subsequent primaries did appear to indicate that many whites (and perhaps many Hispanics, too) will find it very hard to vote for a Black man — especially if they can find any issue that allows them to rationalize their vote.

Frankly, I have at times worried that my own pessimism on this topic might be skewed by my childhood revulsion and embarrassment over the bigotry that was voiced and acted upon (can you say “white flight”?) all around the blue-collar neighborhoods where I grew up. I’ve also worried that my gloomy view about lingering American racism might be amplified by an elitist need to feel morally superior to others. Nonetheless, I’m fairly sure both of those impulses are reasonably under control.

Unless there have been words or actions demonstrating racism, I will give every human being the benefit of the doubt. I do, however, believe that some demographic groups include significantly more overt racists — those who act on it — than other groups do.

This is, of course, one of those topics upon which I would love to be proven wrong. However, two recent articles seem to suggest that there are indeed many Americans who might not vote for Barack Obama solely on the basis of his being African-American. See

• Susan Estrich’s column of June 11, 2008, “The Other Forty Percent.” Estrich says if you ask the question the right way ["do you have family or friends who are racists?'], you learn that “17 percent of white voters say that their family, friends and co-workers would not vote for an African-American and 26 percent more just aren’t sure. Not sure if your best friends are racist? Nice. That totals up to more than 40 percent — more than four in 10.”

• Yesterday’s Washington Post piece, “3 in 10 Americans Admit to Race Bias: Survey Shows Age, Too, May Affect Election Views” (June 22, 2008), which starts “As Sen. Barack Obama opens his campaign as the first African American on a major party presidential ticket, nearly half of all Americans say race relations in the country are in bad shape and three in 10 acknowledge feelings of racial prejudice, according to a new Washington Post-ABC News poll.”

Estrich figures more than 40% of the population may refuse to vote for a black person, if four out of ten are willing to admit to a pollster that their friends and relatives are racist. She notes that this means Obama may “have to win the votes of every person or even 5 out of 6 of them who might consider voting for you. That’s too little room for disagreement. It’s why high negatives are such a problem.”

Estrich is, nonetheless, hopeful that:

“At the end of the day, for better and for worse, what most voters care about is themselves, their own lives and their families. Obama’s challenge is not to convince them to change their minds about race, or racism, but to put themselves first.”

I’m not convinced that the number of voters who want a Whites Only White House is 40% or more. [Many in the survey may have meant that some of those close to them are racists, not all.] But, I am sure that there are significant numbers who hold that view — enough to make Obama’s election an uphill fight in the actual voting booth, despite polls showing him even or ahead now. Those race haters — like many extremists and ideologues — will often vote against their personal financial interests on matters of principle (no matter how foul or misguided the principle may be).

By the way: Unlike pollsters and pundits who cheerily say that it is always better to have more people active in politics, I would be very pleased if the bigots and haters would stay home on election day.

I’m sure my Optimist Friends will point me to the conclusions in the Post-ABC News poll, which found: “At the same time, there is an overwhelming public openness to the idea of electing an African American to the presidency. In a Post-ABC News poll last month, nearly nine in 10 whites said they would be comfortable with a black president. While fewer whites, about two-thirds, said they would be “entirely comfortable” with it . . . ” Even those numbers suggest that a black Barack Obama will have a harder time getting elected than a white Obama would.

I have no idea how to change the hearts and minds of racists. My hope is that enough whites will vote for Obama to put him in the White House. When that happens, and the sky doesn’t fall during the Obama Administration, perhaps the Whites Only bunch will start to come around. Until then, I say:

This is not the America in which I want to live:

  . . . . . . .

- Let’s hope that time will cure the disease of American racism, and that it is not so rampant that it will significantly affect the 2008 Presidential Election. –

Many others have expressed their sadness over the death yesterday of NBC’s Tim Russert. I can’t match the eloquence, emotion or personal anecdotes offered by Tim’s many friends and colleagues. But, I must say that I will miss Tim Russert on Sunday mornings. His skill, preparation and persistence helped millions of Americans to be better informed about our nation’s politics — without shrillness or bias and with a straight-forward, common touch. See “Tim Russert, host of ‘Meet the Press,’ dies of a heart attack at age 58″ (Buffalo News, June 13, 2008); “Tim Russert, 58, NBC’s Face of Politics, Dies” (New York Times, June 14, 2008); “Obituary: Journalist Revitalized Washington Talk Shows” (Washington Post, June 14, 2008); “An Appreciation of Tim Russert” (Charlie Rose, June 13, 2008, includes videos with Charlie interviewing Russert).

WaPo columnist David Broder says this morning, “What the television audience did not know was how generous Tim was in his personal relationships. Family came first, but he took the time for friendships, and he nourished them. That is why his death yesterday leaves such a large void in this community.” (”The Many Gifts of Tim Russert,” Washington Post, June 14, 2008) Like Tim, I am 58 years old. His premature death reminds me to live each day more fully — with passion and commitment to family, friends, and excellence. And, to keep my punditry “pointed but polite.” update (June 15, 2008): Tom Brokaw moderates a special edition of Meet the Press, Remembering Tim Russert.

the blooming cockscomb
dies
standing up

one dies out
two die out…
lanterns for the dead

planting a pine too
for after I die…
evening cool

……… by Kobayashi Issa, translated by David G. Lanoue

[Forest Lawn Cemetery, Buffalo, NY]

 

poem: David Giacalone
photo: Arthur Giacalone

- orig. pub. Simply Haiku, Modern Haiga, Autumn 2008 -

• lawyers with “standard” contingency fees
• real estate agents charging the “standard commission”
• used car dealers offering the “standard warranty”

After shopping last week for a “pre-owned vehicle,” I’ve just added Used Car Dealers here in New York State to my list of sellers who use the word “standard” (1) to avoid negotiating with consumers and competing with other sellers, and (2) to imply that the State requires that they offer only the particular option that is being proffered to the consumer on a take-it-or-leave it basis. The word “standard” is employed to convince the consumer that the deal being offered is fair and written in stone.

It’s no secret that lawyers, real estate agents and used car salesmen are consistently rated among the least respected or least trusted professions. See, e.g., here, and here, there and there; and this cartoon. In my opinion, the standard-deal ploy alone goes a long way to justify the poor reputations.

This posting will focus on the “standard used car warranty” issue. We’ve discussed the first two culprits on the list in prior posts:

• lawyers offering only the “standard contingency fee” in personal injury cases, rather than basing their fee on the level of risk being assumed by the lawyer, as required under ethics standards — see, e.g., our four-part essay on contingency fees
• realtors requiring that you pay the local “standard commission” when selling a house and taking other steps to stifle innovation and competition — see our post “realtors and legislators are selling you out” (Oct. 21, 2005); and the American Antitrust Institute Symposium on Competition in the Residential Real Estate Brokerage Industry (2005). But, note a very recent, positive antitrust outcome: “Justice Dept. Announces Settlement NAR: Settlement Will Result in More Choices, Better Services and Lower Commission Rates For Consumers” (U.S. Department of Justice, Press Release, May 27, 2008). The settlement is discussed by the AAI, in “DOJ-NAR Real Estate Settlement a Milestone for Consumers, But…” (May 27, 2008); and by Consumer Law & Policy Blog (May 29, 2008); and Antitrust Review (May 27, 2008)

While p/i lawyers apply the word “standard” to what is actually the maximum contingency fee percentage permitted in their jurisdiction, used car dealers (in New York State, and probably other states with similar laws) use the term “standard” to describe what is really the minimum warranty periods and terms required by the State, and often to suggest that the State won’t let them offer longer warranties.

Disclaimer: Before I begin this discussion, I want to make clear that I did not start out last week to do an investigation of used car warranty practices. Quite simply, I needed to purchase an inexpensive, reliable, fuel-efficient vehicle — which meant that I’d be buying an older used car, probably with lots of mileage on the odometer. In addition, having no professional or personal experience with Lemon Laws ,or buying used cars from dealers in New York State, I only had a vague recollection that there was some kind of state-mandated warranty.

On the other hand, the very first time I saw a Buyers Guide in a used car window last week, I flashed back to a prior life of mine: Thirty years ago, I was an Assistant to the Director in the Federal Trade Commission’s Bureau of Consumer Protection, and one duty was to review the staff’s findings and recommendations in the Commission’s Used Car Rule investigation. In that role, I was (to my knowledge) the very first person to suggest that the FTC require all used car dealers to say in writing, and show it prominently in the window of each car by checking a box, whether the dealer was giving a warranty with the vehicle or selling it “As Is.” That might have gotten my old Consumer and Competition Advocate juices flowing. [At the time, I told my boss Albert Kramer the idea came to me while waiting to play tennis on a Saturday morning, and Al -- who typically worked 7-day a week -- liked the idea so much he said I should play tennis more often.]

Now that I have had a chance to look at the relevant NYS law and FTC regulation, I realize that many of the dozen dealerships I stopped at last week were in blatant violation of the rules for displaying the warranty information. I am not going to discuss that problem, but hope the NYS Attorney General’s office will start monitoring compliance more closely.

New York State has a Used Car Lemon Law Consumer Bill of Rights (General Business Law, section 198-b. Sale or Lease of Used Motor Vehicles). Under the Bill of Rights, a consumer must be given a written warranty, covering a list of specific systems and items, if he or she purchases or leases a used car sold for (or valued in the lease at) “more than one thousand five hundred dollars . . . from anyone selling or leasing three or more used cars a year.” In addition (emphasis added):

b. Written Warranty required; terms.

1. No dealer shall sell or lease a used motor vehicle to a consumer without giving the consumer a written warranty which shall at minimum apply for the following terms:

(a) If the used motor vehicle has thirty-six thousand miles or less, the warranty shall be at minimum ninety days or four thousand miles, whichever comes first.

(b) If the used motor vehicle has more than thirty-six thousand miles, but less than eighty thousand miles, the warranty shall be at minimum sixty days or three thousand miles, whichever comes first.

(c) If the used motor vehicle has eighty thousand miles or more but no more than one hundred thousand miles, the warranty shall be at a minimum thirty days or one thousand miles, whichever comes first.

See the New York State New Car Lemon Law Consumer Bill of Rights (PDF)

Despite the clear statutory language indicating that the law mandates minimum periods for the required warranty (depending on the vehicle’s mileage), and not a maximum or immutable warranty term, every salesman I asked about the length of the warranty immediately used the non-statutory phrase “standard warranty,” and most added a few garbled words that indicated that the State set the terms, and appeared to blame the state for the lack of a longer period.

At one new-car dealer, a young salesman was (or acted) totally befuddled at the notion that a warranty could be extended beyond the statutory period. The notion was so foreign to him, you would have thought I had asked him to throw in his first-born son, or the dealer’s cute daughter (who appears in their tv ads). He finally said he was certain the dealership — which obviously had its own large service department — would not consider making the warranty longer (which was only 30 days on the vehicle in question). Not even worth walking over to his supervisor to broach the subject.

Raising the “standard warranty” flag is meant to cut off the discussion of warranty periods. But, for many wary, mechanically-challenged consumers, the length of the warranty can be very important. It is an indication of the dealer’s faith in the condition of the vehicle, or willingness to back up words with deeds. As such, it seems to me that at least some dealers should be willing to compete — if not in ads, then to close or sweeten a particular deal — by offering more than the rather short statutory minimum terms. That is especially true if the dealer “self-insures” by performing any needed repairs itself. As with lawyers and real estate agents, however, the Standard Ploy appears to also signal to other sellers that no competition will break out over that aspect of the sale.

My life-long belief as a consumer advocate is that information and options fuel competition and help assure that consumers can achieve fair results in the marketplace. Not knowing that the required State warranty is a minimum requirement greatly hampers the ability of the consumer to bargain for longer coverage and to motive dealers to compete over warranty terms. Unfortunately, the New York State Attorney General — who enforces the law and is the prime source of educational materials on the subject — shoulders a large amount of the blame for the lack of information and the resulting dealer-based misinformation.

For example, the NYS Used Car Lemon Law Fact Sheet does not mention anywhere that the warranty periods are minimums. Indeed, it compounds the problem, fueling the Standard-Statutory-Ploy by showing the following table, which is labelled “Statutory Warranty Length:”

Statutory Warranty Length:

Miles of Operation Duration of Warranty

18,001-36,000 miles 90 days or 4,000 miles
36,001-79,999 miles 60 days or 3,000 miles
80,000-100,000 miles 30 days or 1,000 miles

In addition, the booklet New York’s Used Car Lemon Law: A Guide for Consumers (revised January 2008) does not mention the length of the warranty until page 4, and does not use the statute’s “at minimum” language, or say anything at that point about it being the shortest period permitted:

14. HOW LONG IS THE LEMON LAW WARRANTY PROTECTION?

Miles at time of Duration of
Purchase or Lease Warranty (the earlier of):
_______________ _______________
18,001 to 36,000 90 days or 4,000 miles
36,001 to 79,999 60 days or 3,000 miles
80,000 to 100,000 30 days or 1,000 miles

It is not until page 6 of the Consumers Guide that we see this question and answer:

18. CAN A DEALER GIVE ADDITIONAL WARRANTY PROTECTION?

Yes. A dealer may agree, as part of the sale or lease, to give you more warranty protection than the law requires. The lemon law warranty sets only minimum obligations for dealers.

Those two sentences are the only mention in this 36-page document of the dealer’s ability to “give” or agree to a longer warranty period. Nowhere is the consumer directly told of his or her right to ask or bargain for a longer period.

Indeed, although the actual Used Car Lemon Law Bill of Rights specifically says that the “warranty must be provided for at least” 30, 60 or 90 days, depending on the mileage, it appears that many dealers — in violation of the law’s requirement [subsection e] — do not give a copy of the Warranty, with the Bill of Rights, to the buyer “at or before the time the consumer signs the sales or lease contract for the used motor vehicle.” Instead, dealers — including the one that I bought my car from this week — wait until the car is being delivered to the buyer to provide those documents.

In its literature about its Used Car Buyers Guide — which must be posted in every used car sold by any dealer selling five or more vehicles a year — the Federal Trade Commission does a better job highlighting the ability of consumers to bargain for a longer warranty. For example, in its “Facts for Consumers: Buying a Used Car” [PDF] [en español], the Commission says:

“When you buy a used car from a dealer, get the original Buyers Guide that was posted in the vehicle, or a copy. The Guide must reflect any negotiated changes in warranty coverage.” And,

“Dealers who offer a written warranty must complete the warranty section of the Buyers Guide. Because terms and conditions vary, it may be useful to compare and negotiate coverage.”

Unlike New York, the FTC also provides “A Dealer’s Guide to the Used Car Rule.” The Dealers Guide includes this section, which clearly anticipates bargaining with the consumer over warranty terms:

Where Should Negotiated Warranty Changes Be Included?

If you and the consumer negotiate changes in the warranty, the Buyers Guide must reflect the changes. For example, if you offer to cover 50 percent of the cost of parts and labor for certain repairs, but agree to cover 100 percent of the cost of parts and labor after negotiating with the customer, you must cross out the “50 percent” disclosure and write in “100 percent.”

Having had no luck at all getting personal injury lawyers to drop the use of a standard contingency fee, I have no great hope that used car dealers and their sales personnel will drop the “standard warranty” language, stop acting as if the State prevents them from offering longer periods, and/or let consumers know that they are willing to bargain over the length of a warranty. I do hope, however, that this posting — plus the nudge I will be sending to New York Attorney General Andrew M. Cuomo, and to a few media outlets — will help inform the used car buyer of the option to bargain over warranty terms. If a new wave of competition breaks out, please let the f/k/a Gang know.

Meanwhile, I have no option but to offer our readers a few auto-related haiku and senryu:

checking the driver
as I pass a car
just like mine

……………………. by John Stevenson from Some of the Silence

cloud-free dawn . . .
the dent in the fender
holds its darkness

……. by George Swede in “dust of summers: RMA 2007”
orig. pub. Acorn 18

traffic jam
a plastic dog
keeps on nodding

……………. Yu Chang- Upstate Dim Sum ((2002/I)

mud-spattered pickup-
four dogs watch
the tavern door

…………. Billie Wilson - The Heron’s Nest (Feb. 2001)

first date –
her eyes linger
on the rusted fender

…………….. by dagosan

  . . . . . . . .    The recent rash of articles asking whether sexism is the cause of Hillary Clinton’s failure to win the nomination for the presidency has the f/k/a Gang again frustrated by our pledge to avoid political punditry. As the besieged moderator of many weblog alter egos, I’ve decided to present links to a sampling of the materials on sexism and gender in the presidential campaign (with a few excerpts), quote at length below the fold from a particularly good rebuttal to the sexism charge from the Liberal Values Blog, and spend a little time asking what sexism is and isn’t and when playing the sexism card is inappropriate.

Here are links to a few relevant pieces dealing with the sexism/gender issue in the Democratic presidential primary campaign, which were published over the past week:

• “Gender Issue Lives On as Clinton’s Hopes Dim” (New York Times, by Jodi Kantor, May 19, 2008), where Geraldine Ferraro claims Obama is “terribly sexist,” and one Clinton supporter says “Sexism has played a really big role in the race.” In contrast, presidential historian Doris Kearns Goodwin, opines that “When people look at the arc of the campaign, it will be seen that being a woman, in the end, was not a detriment and if anything it was a help to her,” and that Mrs. Clinton’s campaign is faltering because of “strategic, tactical things that have nothing to do with her being a woman.”
• [update: May 20th, 10 PM]: “Clinton chastises press for ignoring sexism”  CNN.com, May 20, 2008) Clinton “also said she doesn’t believe racism has played a role in the presidential campaign. But the New York senator said sexist attitudes among voters and members of the media have been a constant detriment to her White House hopes.” [note: She wants the press to take the occasional actions of individual members of the public -- e.g., the man with an "Iron My Shirt" sign -- as seriously as the purported race-baiting tactics of her own campaign. It is not news that there are some sexists and some racists in America; it is news if a candidate is playing to one of those groups.]
  • update (May 21, 2008): For a serious response to the Sexism Charges, done with a humorous twist, see “My Sexist reasons for not voting for Hillary” (by Ouroboros, at Daily Kos, May 20, 2008). It provides an excellent issue by issue list of reasons why some of us won’t vote for Hillary.
• WAMC FM, my local public radio station, had a Roundtable segment yesterday, focusing on this week’s (poorly-phrased) question from Time Magazine, “Do women have an obligation to support a serious woman candidate?” You can find an array of answers from listeners in the Comment section of the WAMC Inside weblog.

• In “Clinton’s supporters decry sexism in campaign” Hillary1000 weblogger Donna Darko (May 16, 2008), claims “No voting block in my lifetime has been so utterly disrespected, vilified unjustly with accusations of racism, and basically had to endure endless harangues, while the Democratic Party and so called “progressive” coalition has shown more disrespect to women supporting Clinton than the Republican Party, treating Clinton supporters as second class citizens, especially if you happen to be named Hillary Clinton.”
• “The Feminist Divide Over Obama” (Time.com, by Amy Sullivan, May 16, 2008); and “Clinton’s ’sexism’ dodge” (Boston Globe, by Scot Lehigh, May 16, 2008)
• Ann Althouse’s post “If Hillary is not to be the first woman President, is there a woman President on the horizon?” (Althouse, May 18, 2008), in which the opinionated law professor exclaims,

“I think people were open to the idea of a woman President, but Hillary Clinton did not suit us. We don’t want someone else like her. We want someone different. For starters, how about a woman who did not build her political career through her husband?”

• And see, “She Just Might Be President Someday,” (NYT, Kate Zernike, May 18, 2008; via Liberal Values Blog); and “Feminism Means Never Having to Say ‘I’m Toast’ ” (Dahlia Lithwick, Slate.com, May 13, 2008; via Daily Dish)

• In his column today “The Sisters are Steamed” (May 20, 2008),” Washington Post columnist Howard Kurtz says:

“On an emotional level, it’s easy to understand why many female voters feel they’re been robbed. For the first time in their lifetimes, they could see one of their own occupying the Oval Office. And, in the space of a few weeks, that dream began to evaporate.

“Had the contest gone the other way, certainly many African American voters would have felt they had been deprived of a historic chance to elect the first black president.

“But there is a certain degree of identity politics in this narrative, one that the media haven’t been shy about pushing this season. Should all women vote for Hillary because she’s a woman, and assume that men who oppose her are sexist (and women who back Obama are traitors)? Should all African Americans support Obama because of his race and assume that whites who vote against him are racist? Doesn’t that reduce both candidates to one-dimensional symbols and ignore the substance of what they have to say or how they would govern?”

The best succinct rebuttal to charges that sexism will be the cause of Hillary Clinton’s failure to secure the Democratic presidential candidacy can be found in “Sexism and the Clinton Campaign” (Liberal Values Blog, by Ron Chusid, May 17, 2008), where Ron Chusid says:

“I doubt anyone would say that there is no sexism at all, but this is hardly the major factor why Clinton is losing. . . . If Democrats were opposed to a woman president, they wouldn’t have given her this early support. . . . The problem is not that Democrats do not want a woman nominee. They just do not want this woman for reasons having nothing to do with her gender.” At the bottom of this posting [click "more" if you're reading from our main page], I’ve provided extensive excerpts from Chusid’s piece.

Although his main topic is when racism and other forms of discrimination should be deemed unlawful, Stanford law professor Richard Thompson Ford offers some relevant thoughts in his recently-published book “The Race Card: How Bluffing About Bias Makes Race Relations Worse” (2008). Prof. Ford notes, for instance that:

[at 32 -33] “The success of the civil rights movement inspired many others to frame their struggles in similar terms. Feminists, gays and lesbians, the disabled, and the elderly are just a few of the groups who have successfully made explicit analogies to the cause of racial justice. . . . At best, these claims seek to extend the priciples underlying civil rights to new situations. At worse, these claims seem to define ‘bigotry’ so broadly that the losing side of almost any social or political conflict can claim to be the victims of racelike bias. Today almost anyone can play the race card by ,making claims of what I’ll call racism by analogy.”

“Chapter Two [of The Race Card] looks at the explosion of racism-by-analogy claims. . . . Because the law often offers little or no redress for garden-variety unfairness, many people are tempted to recast their grievance in terms that the law will recognize: in other words, to play the race card.”

[at 105] “Racism by analogy is both inevitable and problematic. We can’t banish analogy, but we must manage and limit it with attention to the significant distinctions among different forms of discrimination. In the abstract, racism, sexism, religious intolerance, bias against the aged, and contempt for the disabled all involve analogous wrongs — bias, intolerance, bigotry — and call for comparable remedies. But, in practice each involves different policy choices, different trade-offs, and different legal mandates.”

[If you'd like to sample more of this thoughtful, moderate book, see the first chapter here (New York Times, Feb. 6, 2008); and three excerpts from Slate.com.]

Of course, in this modest weblog posting, I’m not trying to figure out when the law should have remedies for sexual discrimination. The much more humble issue here is when, in general, it is appropriate to brand an action or result as sexism, and an individual — or vast sectors of our populace — sexist.

. . What is Sexism? . .

Our first task is asking just what sexism is. The American Heritage® Dictionary of the English Language (Fourth Edition, 2000) says sexism is “1. Discrimination based on gender, especially discrimination against women. 2. Attitudes, conditions, or behaviors that promote stereotyping of social roles based on gender.”

Wikipedia’s entry on the subject explains further that:

“Sexism is a belief or attitude that one gender or sex is inferior to or more valuable than the other. It is also called male and female chauvinism and can also refer to a hatred or distrust towards the opposite or same sex as a whole (misogyny and misandry), or imposing stereotypes of masculinity on men or femininity on women.

“Sexism refers to any and all systemic differentiations based on the sex of the individuals not based on their individual merits, and is commonly considered to be sex discrimination, which in some forms is illegal in some countries.”

And, a sociology reference site helpfully adds that sexism is:

“Similar to the dynamics of racism. Males are believed to be superior to females and when this belief is put into action it leads to females being treated as objects, the last to be hired, first to be fired, being paid less for equal work, etc.”

With the above definitions in mind, and drawing upon my own understanding of the subject (which has interested me for many decades - and had me “manning” the phones for the Women’s Campaign Fund 30 years ago in D.C.), I believe that sexism does not exist unless the actor/speaker has hatred or contempt for the other gender, or believes that one gender is superior to the other, or is attempting to maintain or impose stereotypes of masculinity on men or femininity on women in order to limit their freedom by restricting the gender to particular roles.

I hope we can all agree on at least a few basics:

• Every mention of sex or gender, and everything sexual or sexy is not sexism (as Dahlia Lithwick pointed out at Slate.com in 2006, in a disagreement with lawyer feminists over a sexy woman in a clothing ad that appeared in a legal periodical; see our prior post).
• Every mention of a general gender difference is not sexism. And,
• Every outcome that is not favorable to a woman is not the product of sexism, nor is every outcome unfavorable to a male.

There are a few more things that seem obvious to me about sexism, the most important of which is that it is far too potent a charge to be made lightly by serious people or those who wish to be considered serious. This suggests to me that:

• Gender Joshing is not sexism (absent the requisite hatred, superiority complex, or intent to stifle gender freedoms) — not when women kid men about their refusing to ask for directions, flatulence, or preoccupation with certain female body parts; and not when men (who, by the way, bond with their equals and friends through banter and kidding and poking fun) playfully mention stereotypes about parallel parking or periodic crankiness of women, or the like.
• The gender-related rudeness, crudeness, or insecurities of a small minority of persons — much less their inadvertent lapse into jargon or turns-of-phrase that a minority of the other gender consider insulting, condescending or antiquated — should not be used to besmirch the actions of a much-broader group of people.

• If similar behavior has been aimed at, or could be expected, when the other gender is in a similar situation, claiming sexism is rarely called for. [Thus, in reference to complaints about the current primary campaign, note that John Edwards has been ridiculed for his pretty face and hair; Al Gore's clothing got a lot of attention in 2000; males seeking the presidency have had their tears, ears, height and weight, and the timbre of their voices scrutinized and ridiculed; and Dennis Kucinich or Bill Richardson would surely have been urged to leave the race by now, if they were in second-place in the delegate count (with no real chance of catching up sans scandal), or appeared to be hurting the frontrunner's election chances with their campaign tactics.]

In sum, absent indications of hate, or superiority, or freedom-limiting stereotyping, it makes little sense to play the sexism card. That is especially true when people of good faith have indicated significant non-gender reasons for their actions; and when a reasonable person would have expected similar behavior if someone of the other gender had been involved. As I have stated before at this weblog:

Those who worry about the continuation of old stereotypes need to pay very close attention to the new stereotypes they may be creating by their actions and positions. Being seen as thin-skinned, humorless proponents of iffy legal analysis and bad attitudes is scarcely the way to win over the hearts or the minds of those who might still want to perpetuate the unwarranted stereotypes. Indeed, it might just lose you a few allies or make them wary to come to your assistance every time you “cry wolf.” Even the most open-minded and fair people can find it rather difficult to think of whiners [sore losers or spoilers] as equals.

All this breathless punditry needs a bit of offsetting one-breath poetry, don’t you think? Here are a few senryu by members of our f/k/a family of haiku poets:

another argument unfolds the futon

………………. by W.F. Owen - Frogpond; Bottle Rockets

at the height
of the argument the old couple
pour each other tea

……… by George Swede - Almost Unseen (2000)

through the open door . . .
her smile doesn’t forgive
all my sins

. . . . by Randy Brooks - School’s Out (1999)

it’s pink! it’s purple!
sunset inspires
more bickering

………… by david giacalone - Frogpond Vol. XXVIII, #2 (2005); also, a haiga incorporating this poem

screen door between angry words

. . . . by Tom Painting - A New Resonance 2 & Frogpond XXI:1

sua sponte –
her honor
catches me staring

. . . by dagosan

Finally, as promised above, here are major excerpts from “Sexism and the Clinton Campaign” (Liberal Values Blog, May 17, 2008), by Ron Chusid:
(more…)

Don’t get me wrong: I know well — and firsthand — the joy of seeing the Mohawk River from your own home or backyard. What I do not know is how two men in their 60’s could be so selfish and reckless that they (allegedly) had three hundred trees clear cut — on property owned by the NYS Canal Corporation — in order to improve the view of the Mohawk River from their homes. According to our local news media and police, that is exactly what Brian Gain, 67, and Raymond Tannatta, 63 (of the Schenectady suburb of Niskayuna) did recently in order to improve the view of the River from their Middle Street homes, near the Rexford Bridge. See “Two Arrested for Illegally Cutting Trees” (Fox News 23, May 15, 2008), which includes a before-and-after video clip).

As Fox News 23 reporter Jeff Saperstone told us last night:

“Large, lush trees bordered the Mohawk River coastline last year. Now looking at that same coastline, one man says, “…it’s just empty.”

“. . . . FOX23 News spoke with several concerned neighbors, who did not want to go on camera, but they told us they are very disappointed those trees came down because it ruins this very nice natural landscape. Photos given to FOX23 by those neighbors show a number of trees that no longer stand. In some of the photos you can see bald eagles, red foxes and other creatures that call this place home.

“The fear here is that because there are no trees left on the cliff side, any kind of rainstorm could cause a mudslide of sorts thus filling in the lagoon beneath the cliff.”

[photo of the Mohawk R. at the Schenectady Stockade -- about a mile from the Niskayuna despoilation -- by D.A. Giacalone, May 2008]

According to Capital News 9, “Gain and Tannatta are charged with third-degree criminal mischief, making a false written statement, along with the violations of illegally cutting trees, causing damage to canal property and occupying canal property without a permit. . . They were issued appearance tickets for the Town of Niskayuna Court on May 28.” Today’s Schenectady Gazette online gives a comprehensive report on the story, in “2 accused of cutting trees on state land” (by Steven Cook, May 16, 2008). The Gazette tells us:

“State police investigated after receiving a complaint about three weeks ago that there were trees in the river. They soon realized the land behind the houses had been clear-cut, with about 300 trees taken down and left where they fell.

. . . . “The people who allegedly did the actual cutting are expected to face environmental conservation law violations for leaving the trees in the river, [State Police Zone Sgt. Mark] Phillips said. They were brought in believing the land belonged to the nearby homeowners.

. . . “If they are found guilty, they could face fines of $250 per tree, Phillips said. That would be in addition to any penalty on a criminal mischief conviction.”

The Gazette article notes that “A judge could also order them to restore the property to its prior state.” The tragedy, of course, is how impossible such a restoration would be (at least in my lifetime). In addition, I believe that damages should be assessed using a multiple many times more than a fine per tree. The overall marring of the landscape and scenery is far greater than the sum of the trees gone.

I wish the Niskayuna Zoning Board could have read Mr. Tannatta’s mind, when it granted his request for a zoning variance (scroll to item #6) to build on the lot at 832 Middle Street in 2005. In the Channel 23 piece, one of Tannatta’s neighbors says, “We are sure our neighbors are good people who just made a selfish choice.” Frankly, I am not quite so sure. Right now, I am too angry at Gain and Tannatta to even attempt to find a haiku or two to end this posting.

If my “neighbors” in the white house across the River from me in Scotia ever get the notion to cut down the trees blocking their view of the Mohawk, they better worry about a citizen’s arrest and a nice lawsuit.

On a cheerier ending note, check out the lovely photos I took earlier this week at the Albany Tulip Fest; they’ve been added at the bottom of our May 9th posting “tulips-R-us.”