February 21, 2004
Causing an uproar with quiet dignity

For the New York/Northern New Jersey contingent that reads this blog, I highly recommend The Big Animal, the 2000 Polish movie now playing in Manhattan.

We saw this gem a few years ago at the Rehoboth Film Festival, and it's just a great little movie.

A.O. Scott of the NYT agrees.

The movie describes the impact on a small village when one of its stable senior citizens takes over the responsibility of caring for a camel.

Both the camel and its keeper maintain a quiet dignity throughout, even as the animal's presence causes a series of uproars.

A breakfast scene with the old man, his wife, and the camel is worth the price of admission all by itself.

February 20, 2004
Recommended Reading

A gentleman named Don Hagen sent me a link to a funny essay describing the differences among conservatives, liberals, libertarians, and communists.

The entire piece is long but well worth your perusal.

Considering the agency I advise and represent, this passage was on the money:

The solution to traffic congestion is to...

CONS:-build more roads, and highways.

LIBL:-discourage people from driving by quadrupling the price of gasoline.

-severely limit the number of available parking spaces.

-build more busses and rail transit.

LBRT: -make traffic signals, stop signs, and speed limits mere suggestions, rather than hard and fast rules.

COMM: -give everybody a free bicycle.

Yup.

February 20, 2004
Not just a family-friendly place

The Washington Post this morning ran an article by Tim Craig and Lori Montgomery about the continuing debate about where slot machines will be permitted to reappear in the State of Maryland.

Republican Governor Ehrlich made his opposition to any slots going to any locations on the Eastern Shore a critical element of his basis for support of any slots going anywhere.

Naturally, therefore, a leading Democratic legislator is suggesting that the Ocean Downs raceway just outside Ocean City, Maryland would be a perfect spot to separate fools from their money:

Senate President Thomas V. Mike Miller Jr. (D-Calvert) said he wants slots at Ocean Downs because "everybody recognizes it is a very logical site."

The part I liked best about this story, however, centered on how the Ocean City mayor chose to explain his opposition to the slots:

Ocean City Mayor James N. Mathias Jr. said he worries that slot machines could one day spread from the racetrack to the boardwalk and tarnish the resort's image as a family-friendly destination.

Oh, please.

There’s no denying that Ocean City attracts thousands of families each summer, and that there are dozens of family-oriented recreational opportunities available.

On the other hand, that’s not all that OC has to offer.

Here’s a short list of some of the other kinds of places folks can go:

Big Peckers
The Brass Balls Saloon and Bad Ass Cafe
The Bearded Clam
Scandals Nite Club
Hooters of Ocean City

And there are plenty more such places. I've been to a few of them.

I don’t really have a dog in this fight. Delaware's General Fund will almost certainly take a hit on its own stream of gambling revenue if any slot machines show up anywhere in Maryland. There are just too many Marylanders who trek over to Delaware’s three slots outlets to think that most of them won’t just stay home if they have the opportunity.

It’s just that when I think of Ocean City, “family-friendly” is not the first thing that comes to mind.

February 18, 2004
Press Release Lawsuits

I’m not a fan of press release lawsuits.

That’s not a term a lot of people have heard, so here’s an explanation. 

Sometimes governments and other organizations file lawsuits that have their primary goal the pushing of a particular political agenda, as opposed to raising a genuine legal issue. 

Sometimes these lawsuits are essentially defensive in nature—by filing the lawsuit and blaming someone else, the government seeks to deflect criticism about its own actions.

In either case, the government doesn’t really expect to win in the courtroom. It expects to gain a victory of sorts in the court of public opinion, at least for a while.

I believe I read about one of these lawsuits today in the Washington Post:

Commuter Tax Suit Argued
U.S. Joins Maryland, Virginia in Opposing D.C. Stance

The government of the District of Columbia filed a lawsuit challenging a Congressional ban on the imposition of a commuter tax on residents of Maryland and Virginia who work in DC.

It’s part of the same old pitch:

The city says that a congressional ban on a commuter tax is unconstitutional because the ban discriminates against D.C. residents, who have no say in electing Congress.

The Justice Department attorney who argued for dismissal based her central argument on a familiar civics lesson:

… Rupa Bhattacharyya ... emphasized that because the District is not a state, it derives all of its legislative power from Congress....

Bhattacharyya acknowledged that Congress could enact such a tax or delegate such a power to the city. Congress's decision not to do either is a decision rooted in politics, not in law, she said.

She’s right. Barring something both deeply unusual and wrong, I would expect the trial judge's dismissal of the lawsuit to be handed down shortly.

Of course, the District government has a few other options remaining available to it.

• It could seek to have the District’s residents returned to the State of Maryland, which would require a constitutional amendment I support. Maryland could then enact a commuter tax for its second-largest city.
• It could seek to have Congress change its mind and either enact the tax or tell DC it could pass such a law under certain conditions.
• It could also seek to cut its budget and find other ways to operate a more efficient city government, such that it wouldn't need the money.

Of these three options, the first one is the most likely to be adopted—and I don’t see that happening any time soon.

In the meantime, the DC government will almost certainly file more press release lawsuits. It's just so much easier, y'see.

February 17, 2004
Good breeding pays off

Congratulations to the proprietor of Borzoiblog and his bride on the occasion of their dog Lacey’s Best in Breed award in last week’s Westminster Dog Show.

Well done!

February 17, 2004
Interesting choice in the background

I ate lunch in my car today so I could listen to the radio (the office building is remarkably resistant to AM transmissions).

During one commercial break, the local station apparently fulfilled a community service requirement by playing an IRS spot touting the benefits of E-Filing.

The announcer, a woman with a very pleasant voice, used a clever sales pitch about how best to pay one's federal income taxes.

She described a scene where the typical taxpayer carefully sets out all his tax forms, instructions, records, and freshly sharpened pencils. In short order, of course, coffee is spilled, ink begins to run, and an attempt to use a hair dryer to save the tax forms ends badly.

As I listened to this tale of paperbound woe, some familiar classical music played in the background.

It was Rossini’s The Thieving Magpie (La Gazza Ladra).

If I’m not mistaken, the producers used the Wendy Carlos synth version, featured on her Clockwork Orange album.

Call me crazy, but it sure seems like somebody had a little bit of fun with their advertising client.

I love that particular rendition, though.

February 16, 2004
Wishing doesn’t make it so, especially when you need an expert

Yesterday’s Daytona 500 gave its spectators another chance to see how much improvement has been made in driver safety, especially compared to NASCAR’s early years. 

Michael Waltrip, last year’s winner, became caught up in another driver’s slide off of a turn, and ended up rolling over at high speed several times in the grass infield.

By the time Waltrip came to a stop, there was very little left of his car except for the driver’s cage area, from which he was safely removed.

Three people who rode in a 1994 Trans Am with a T-top roof at high speed in 1996 weren’t nearly so lucky.

The driver, with a blood alcohol content of .172, lost control and flipped his car at 100 mph. He was killed, the back seat passenger suffered severe brain damage, and somehow the front passenger escaped with only soft tissue injuries.

They all sued GM in Federal Court, claiming that their injuries would have been less severe if a different roof design had been used.

As with all such product liability cases, the plaintiffs needed expert testimony before they could have their case heard by a jury. Under Federal Evidence Rule 702 and the Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), that kind of testimony is subject to critical analysis before being admitted.

In this case that analysis proved to be fatal to their claims.

One witness, an engineer, was to testify concerning an alleged alternative safe design. The District Court had several problems with this offer:

[The proposed engineer witness] (1) had not examined or tested the Trans Am;1 (2) had no measurements or calculations to support his theory of how the accident occurred; (3) made no drawing or model (“prototype”) of his hypothetical alternative design for a Trans Am; (4) conducted no test of his design; (5) offered no calculations in support of the safety of his design; (6) had not subjected his alternative design to peer review and evaluation; and (7) presented no evidence that other designers or manufacturers in the automobile design community accepted the untested propositions underlying his opinions. The Court concluded that “[e]ssentially the [expert witness’s] design has no concrete basis in reality.”

Ouch.

The medical witness the plaintiffs also wanted to use fared no better before the District Court judge, who ruled as follows:

(1) his opinions were speculative because they were based on [the engineer witness’s] unsupported conjecture of how the accident occurred; (2) [the doctor] could not say with sufficient certainty when during the rollovers and final crash the plaintiffs sustained their injuries, how their bodies moved within the vehicle, or when they were ejected, if ejected in the way [he] described; and (3) [the doctor] was on “even shakier ground” in opining what injuries plaintiffs would have sustained had [the engineer witness’s] hypothetical alternative design been used.

After ruling that neither expert’s testimony could be admitted, the court then granted GM’s motion for summary judgment.

Last Friday the Second Circuit Court of Appeals had little difficulty upholding the lower court’s determinations:

[W]e note that the reliability of [the engineer’s] testimony is the central issue on this appeal. If his testimony regarding a safer alternative design is speculative and unreliable, then [the doctor’s] testimony—that the hypothetical design would have reduced the injuries in this accident—is even more so…. Numerous courts have excluded expert testimony regarding a safer alternative design where the expert failed to create drawings or models or administer tests.

***

In the absence of drawings, models, calculations, or tests, it was not manifest error for the District Court to find that [the engineer’s] testimony was insufficiently reliable.

This case is a good example of the kind of scrutiny to which expert testimony should be subjected before a jury is permitted to consider it.  

No sane person would wish this kind of accident on anyone, even someone foolish enough to drink and drive. On the other hand, far more than wishful thinking is required before a manufacturer can be held liable for the foreseeable consequences of its designs.

February 15, 2004
A two-Claude headline for a story that might be going AWOL itself

George W. Bush’s military service record of thirty years ago continues to intrigue many people who would like him voted out of his current position.

The White House’s latest move, which frankly should have been done a while ago, was to release all of the records.

Naturally, among those who would like to keep shifting goal posts until they’re in another stadium in another city, even this will be insufficient, as reflected in this AP headline:

Democrats Skeptical of Bush's Guard File

I am so not shocked to read this. This announcement earns two Claudes.

My own thoughts about this subject are along the lines of what James Lileks recently wrote about Senator Kerry:

I don’t care what Kerry said 30 years ago; I care what he says today about what he said 30 years ago.

Similarly, I’m not that interested in what Bush did or didn’t do concerning his Vietnam-era service, almost twenty years before he stopped drinking. (I recognize the possibility of personal change over time, a view of human nature which I also realize not everyone agrees with.)

I care more about what Bush’s doing now, and what he says he wants to do in the next four years, especially on matters of national security.

That’s worth discussing in detail over the next several months, and comparing it to the adopted Democratic Party platform on the same issue.

Thus far the remaining Democratic candidates are not reminding me of Scoop Jackson, which doesn’t give me much comfort.