Archive for 2007

Learn the Truth

April 9th, 2007

Quickly, watch this video before NBC files a DMCA takedown notice against YouTube on behalf of Cadbury.

The world must know!

probonogeek Off Topic

On Dancing and War

April 6th, 2007

There is an opinion columnist who writes for the Post that I lovingly referr to as the “scowley faced man” (this is in contrast to “big foreheaded man“). Add Mr. Novak, and these the individuals represent the triumvirate conservative bloc of the Post. Reading their articles usually makes me pretty upset because of the highly selective tunnel vision when it comes to evaluating facts.

Today is no different.

Mr. Krauthammer argues, with great force but little precision, that the multinational institutions of the UN and the EU failed to protect the 15 British sailors who were captured last week by Iran. The EU refused to impose requested tarriffs and the UN refused to condemn the Iranian action. This, according to Mr. Krauthammer, shows the irrelevance of multinational institutions. In the end, it was the Americans who solved the problem.

There’s an old saying, “dance with the one who brought you” that is awfully applicable in this situation. Britian chose to become involved with the Iraq war over the objections of other member EU nations and without the support of the UN. The Prime Minister bought what President Bush was selling and have been at our side from the beginning, all the while thumbing his nose at the multinational institutions. In the international order that’s their choice; no country is obligated to participate in transnational organizations.

But there are consequences for ones actions. Why, if the EU does not support the military action in Iraq, would anyone expect the EU to support economic sanctions on behalf of a country who has defined that collective will? If Michigan suddenly declared war on Canada, invaded, and had a group of their soldiers captured, would the United States be obligated to impose sanctions against our largest trading partner?

What, a silly analogy you say? Of course it’s a silly analogy, the United States would never allow Michigan to attack Canada, the U.S. Constitution prohibits states from engaging in foreign relations. It’s one the cohering factors of the Union. Michigan need not fear the U.S. turning a blind eye, and the U.S. need not fear Michigan going on some fool’s errand. Such is not the case with the EU, because if it were, the EU would never have permitted the UK to join the American’s Iraqi adventure, the sailors would never have been in/near/adjacent to Iranian waters, and there wouldn’t even be a question of whether sanctions were needed.

Does the fact that the resolution to this crises came out of American action mean the EU, or the UN, is incompetent or unnecessary? No, it just shows you’re best bet is to dance with the one who brought you.

probonogeek Politics

The Source of Facts

April 3rd, 2007

Much ado has been made regarding the U.S. decision to tinker with the daylight savings time. Regardless of the intentions behind the Congressional experiment (reducing power consumption) I prefer the change. So there’s my bias.

Now, let’s talk about the other bias. Ars Technica is running a little piece which can only be described as gloating about the failure of the switch to actually save power. Not sure why it’s worth gloating about, but okay. Their source is an even shorter article by Reuters, which doesn’t seem very interested in gloating (at least there still some objective journalism in the world) about the apparent failure to conserve. But now you should be wondering, who is the Reuters’ source?

Here’s the direct quote from the article

“There might have been a small increase in morning lighting, and a slightly larger decline in evening lighting usage,” said a spokeswoman at New Jersey utility Public Service Enterprise Group Inc, but that modest decline will have no impact on its overall sales or earnings.

Which means there source is the venerable Public Service Enterprise Group Inc. That’s not a link to their homepage, by the way, that’s a link to their stock price. Yes, that’s correct, PSEG is a privately held, for profit company.

I’m not saying there is anything wrong with for profit utilities (although, the argument could be made…) what I’m saying is that no for profit company is going to come out and announce, for no good reason, “the government’s regulation has cut national power consumption and as a result, earnings are down.” It’s just not gonna happen. There is every incentive for them to say, “silly government, you cannot stop us, for we are the power company… everyone needs our electricity!” Check out that link again, check out their stock price for the past few days following the article (April 2nd). Up almost 3 dollars! Interesting, no?

Now, I’m not saying that power company is lying. I don’t have the facts to say that–but I think that a serious news agency like Reuters, and less serious news, um, reporting… er… opinion site like Ars, should look beyond to the source of their facts before they declare something to be a failure.

probonogeek Politics

Giving The District a Vote

March 23rd, 2007

The Washington Post reports today that efforts to grant the District of Columbia an actual, factual, vote in the House of Representatives was derailed by a poisin pill amendment, offered by Rep. Lamar Smith (R-Tex.), overriding the District’s strict anti-gun laws. Very clever on the Republican’s part in one of two ways. Either it puts Democrats from conservative districts in a tough spot (voting against gun freedom), or, it forces the Democratic Leadership to bring the bill up for consideration under a closed rule, thus reversing on a pledge to run the House in a more open manner.

House procedural maneuvering aside, none of this may matter as the President has said he will veto the bill should it reach his desk. He, or at least his advisors, believe the law is unconstitutional. The first clause of Article I, Section 2 of the Constution reads:

The House of Representatives shall be composed of members chosen every second year by the people of the several states, and the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature.

Which supports the President’s claim… states get representatives, not districts. It’s worth noting that the President also stated the the McCain-Feingold Bipartisan Campaign Finance Reform Act was unconstitutional, and yet is bears his signature.

Of course, the Democrats have their own legal argument. They point to Article I, Section 8, Clause 17 (the Enclave Clause), which says:

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings

This clause has been read to mean the Congress can do pretty much whatever it wants within the confines of the District (makes me a little sad for the residents of DC… would you want Congress to effectively be your city council and state legislature all at the same time?).

Unfortunately, I have to side with the Republicans on this one, at least as far as the legal argument goes. There are two problems with using the enclave clause. First, it makes no meaningful distinction between the District of Columbia and military bases. Both are governed under the same clause and Congress may legislate with equal force. Which means if the District can be granted representation under the enclave clause then so can all of the military bases around the country.

Second, and for me more powerful, is the 23rd Amendment, which grants the District representation in the electoral college as if it were a state (with the minor provision that they can never get more votes than the smallest state, so they are pretty much stuck at three votes). If the Democrats were right about the enclave clause, this amendment would never have been necessary, Congress could have simply granted the District electoral representation by legislative action. Instead they went to all the trouble of assembling 2/3rds of the House and the Senate and a majority in 3/4ths of all the state legislatures.

Given this precedence, it is hard to argue that legislation, even if well intended, can alter the voting rights clearly outlined by the Constition. There have been efforts to grant the District either statehood or full voting rights under another constitutional amendment akin to the 23rd. The statehood route poses many complications (for example, could the new state pass a law ousting the national government?) and is not really consistent with the founders vision of a national capital free from state intervention. The full voting rights option, on the other hand, is pretty straightforward. The key obstacle is history–it’s been tried before and failed–and partisan positioning–Republicans won’t vote to grant representation to a Democratic stronghold unless they get the same in return.

But perhaps both can be overcome is sufficient political will. If the voting rights folks can frame the issue correctly, show how the Republicans are preventing a giant city from participating in self-governance, focus on representation in the House by dropping the demand for Senators, and then really push the issue when it goes out into the states, then maybe they have a chance. As for the current effort, I sincerely doubt it.

probonogeek Law, Politics

Must Share Funny Video

March 21st, 2007

Sarah’s father set her a link to a MadTV sketch that is truly inspired. It is a MUST see.

Because the copyright on this video is, err, dubious, I’m just going to provide a link back to YouTube, where you can watch the video and Google can deal with the liability.


probonogeek Politics

Seeking Special Protection

March 9th, 2007

We all know about Arthur Anderson, the big accounting firm that went down with Enron in 2002. Suddenly we went from having “The Big Five” accounting firms to “The Big Four.” See, the Federal Securities & Exchange Commission (SEC) imposes pretty significant reporting requirements on any publically traded firms. Both before and after the adoption of Sarbanse-Oxly, many of these reporting requirements can only be fulfilled by an outside accounting firm. The large companies rely exclusively on the Big Four to fullfill their outside auditing needs.

But, did you know that before there was The Big Five there was The Big Eight? Presumably there was also the Big 12 and the Not Quite as Big 17. The accounting business, like so many businesses, have been seeking efficiency through mergers since the 70’s. Taking smaller companies and merging them into successively larger companies. So imagine my surprise when I read in the Washington Post today that these same companies are seeking legislative protection from liability because, and I quote, “We just don’t want to be put out of business.”

There tactic here is classic. Since they provide such a valuable and necessary service, they will argue that it is better, for society as a whole, if they are essentially immune from suit so as to ensure the few of them that remain continue to function. It would be worse, they will say, for there to be only three or two firms than for one of them to engage in fraud and get off the hook. It’s the same argument the airlines make when they get huge federal bailouts.

The critical difference between airlines and accounting firms is that there is only so much market capacity for airlines. Given the huge capital resources needed to run airlines, terminals, ticketing, etc, it is safe to conclude that there is an optimal number of airlines and that it is a relatively small number. But the accounting firms only real capital cost is in brain power. The more clients they have, the more brains they need to employ. My guess is the whole thing scales rather well… which is why they merged together in the first place. If there is no lost efficiency from merging two firms, both with 50 employees into a single firm with 100 employees (maybe less), then you’re going to do it on the grounds of eliminating competition. It’s a no brainer (excuse the pun).

I consider this classic short term profit driven thinking. One of the central principles of computing, especially network computing, is to reduce the number of single points of failure. You never want a system to rely on one part which, should it fail, the entire system will go down. The same principle applies to civilization. You don’t want everyone employed in the same job, you don’t want your food source to be in one location, you don’t want all your energy to come from the same kind of fuel. The more you diversify the better prepared we are for unforeseen, yet inevitable, changes in circumstances. It’s the same principle behind a diversified stock portfolio.

Yet everytime one of these accounting firms merged together, we got closer and closer to a single point of failure. Now the four firms are so huge and have such an iron grip on the market that it is near impossible for a new market entry. The public traded companies have no choice but to hire one of the Big Four, and thus no medium sized accounting firm can ever become Big #5. Now the possibility of a bankruptcy due to a civil lawsuit is a big deal… the investment system needs these firms to survive, regardless of the cost.

Which brings me the final thought of who, exactly, bears these costs? See, when there is fraud, and that fraud is aided by an accounting firm, the investors have civil recourse to recover lost funds. When a company goes bankrupt, like Enron did, there’s not a lot of money available to make those investors whole. To be clear, “investor” should conjure up both thoughts of already rich billions as well as the middle class saving for their kid’s college and industrial workers pensions (the stock market, it’s not just for elite any more!). If the purpose of the civil justice system is to make those damaged whole again, then going after an accounting firm who helped perpetrate the fraud just makes sense. If the SEC, or Congress, goes along with the Big Four’s wishes, don’t think those unrecoverable damages just go away. Instead, all those damages felt by the collapse of a public company will be carried by investors, while the accountants who both aided and likely benefited by the fraud, will continue to operate without any punishment or financial loss. Talk about a single point of failure.

probonogeek Law

Supreme Court Docket Watch

February 27th, 2007

The decision to grant or deny Supreme Court review has been made in two important cases, one involving the Washington State primary and the other involving criminal sentencing. I’ve blogged about the Washington State primary system before, my belief that the state parties are shooting themselves in the foot, and that the courts holdings so far have been rather inflexible given the political nature of the question.

Well, now we are going to get the Supreme Court’s opinion on whether the top-two system is constitutional or not. Louisiana has been using the system for years, so they better be on the lookout… remember, it was California, who adopted Washington’s previous system, that went to the Supreme Court last time. If Washington loses like California lost, a national precedent will have been set.

Legal mumbo-jumbo aside, I have to wonder what the courts are doing with all of this? If the blanket primary is unconstitutional, and the top-two is unconstitutional, it begins to seem as if the Constitution has a preferred sort of primary, even though the constitution makes no mention of a primary and the founders, through Federalist 10, make clear that factions–only possible through primaries–are to be avoided. Personally, I found the District Court and 9th Circuit court opinions on the top-two system to be less than convincing. Their holding boils down to relying on the earlier blanket primary holding in California Democratic Party vs. Jones, concluding that anything which diminishes a political party’s right to “speak” by selecting a candidate is unconstitutional.

Given that free speech is generally a balancing test, I don’t think the courts really gave the question the appropriate scrutiny it deserves. The whole idea behind the top-two system is to say the parties don’t get to decide who appears on the general ballot. They can use whatever system they want to pick who gets to use the party political apparatus, but such authority does not extend to deciding who gets to run for office. Put another way, it’s not limiting the party’s right to speak, it’s saying the state isn’t going to listen.

The other case, involving a 200 year sentence for a man found with 20 pictures of child pornography on this computer, was denied review. The case sought to question whether such a long sentences (10 years for each photo), served consecutively (instead of concurrently, as most jurisdictions would do) violated the ban against cruel and unusual punishment. The state court review only asked whether the 10 years per photo was fair, and having decided in the affirmative, it did not question the state’s decision to apply the sentence consecutively.

What’s interesting about this case to me is the quote in the article from a Professor Berman.

For a host of good reasons, the justices think they have a role in regulating extreme corporate punishment, but I fear the court doesn’t embrace a role in regulating extreme individual punishment.

He is referring to the court’s decisions limiting punitive damages, such as the rough guideline that the punitive should never be more than nine times the actual damages.

For me, the critical distinction here revolves around state decision making. In the case of punitive damages, the decisions are made by juries within the context of judge made common law. Which gives the Supreme Court a critical role in forming, and revising, those precedents. The criminal punishment, on the other hand, is not by common law. Because of the due process clause of the Constitution (5th or 14th Amendment, take your pick), all crimes, and their punishments, must be the product of the legislature. Which means Arizona’s decision to impose consecutive terms, instead of concurrent terms, was made by the state legislature. If the result is seen as excessive, then the political process is the proper route for change.

probonogeek Law, Politics

Thinking About the British Withdrawl

February 22nd, 2007

The big news the past two days is that the British are withdrawing forcing from Iraq. There has been a lot of political back-and-forth about this development, with the White House calling it a “good-news story” and the anti-war movement asking why the British get to leave and the Americans don’t. Obviously this is all very complicated, but I want to focus on a particular quote out of the Washington Post.

Tony Snow, White House Press Secretary, is quoted as saying

The fact that they have made some progress on the ground is going to enable them to move some of the forces out, and that’s ultimately the kind of thing that we want to be able to see throughout Iraq.

The paragraph right before the quote, which is not sourced, reads

The White House argued that comparing the British situation in Basra and the U.S. position in Baghdad fundamentally distorts reality. The south, where the British have been in charge, has no Sunni insurgency and far less violence than Baghdad or Anbar.

Anyone else find that very interesting?

Why is the one populated area where the British forces are most concentrated the one populated area where there is “no insurgency and far less violence?” Strikes me as there are two critical differences between the areas: the occupier and the occupied. But do we really think there is some great difference between the Iraqis in Baghdad and the Iraqis in Basra? Or, could it be that the demoralizing events of Abu Ghraib and the slow response to the evolving situation by the American military leadership have engendered such ill-will towards the U.S. that our troops are simply incapable of being effective in the way the British troops have been?

I am reading a book on Iraq right now, and I’m learning a lot of interesting things about the situation… but at the moment I am far from an expert. But the one thing that bother me vary much are claims from the right about how we must stay in Iraq in order to win the fight… but what if it’s not possible to win the fight? What if the window where all the troop increases in the world has already passed? To use a poker analogy, you don’t stay in the game when all your holding is pocket 4s and the flop came down all face cards. Sure, you can try and bluff your way out… but this is international warfare against a player with nothing to lose. It’s true, if you fold you cannot win… but this is not the ideal time to be bluffing.

probonogeek Politics


February 21st, 2007

About four minutes ago I felt a very unnatural shaking in the apartment. At first I thought nothing of it, but then decided to see if there was a place where earthquake data was easily available.

Lo and behold: USGS Earthquake Hazards Program

They don’t know the magnitude yet, and it hasn’t been reviewed by a seismologist, but I can certainly vouch that it happened.

Nothing big, didn’t even rattle the pictures on the wall, but it’s vary cool to see how fast this information is available.


The USGS now reports it was a 3.0 magnitude quake and about 15 miles north of my current location.

Art Update

I put a little tag by Santa Cruz, in case you didn’t know where it was located

probonogeek Personal

Sneaky Rules of the Senate

February 17th, 2007

On Friday Democrats in the House of Representatives flexed their new majority muscle to pass a non-binding resolution opposing the surge/escalation in Iraq. The resolution was brief, to the point, and palatable enough to garner the support of 17 Republicans on top of all but two Democrats.

So impressed by the resolution, Senate Majority Leader Harry Reid scheduled a rare Saturday vote on identical language (as opposed to the 14 page whopper they had tried to adopt the week before). It was my thinking that this was a pretty clever move on the Majority Leader’s part. To end the Republican filibuster Reid needed a 3/5ths majority and I figured the Saturday vote would mean fewer Republicans and thus a lower absolute vote total.

Indeed, when the vote was taken it came to 56-34–nine Republicans absent and Democratic Sen. Johnson of South Dakota still recovering from brain surgery. Now 56 plus 34 is 90, and 56 is 3/5ths of 90… so why was the Washington Post story reporting the filibuster had held?

Because Senate Rule 22 says so, that’s why. The threshold is not based on the number of votes cast as it is with nearly all other votes in both the House and Senate. Rather, it is based on the number of Senators “duly chosen and sworn.” Which means if there are 100 seated Senators, you need 60 affirmative votes to end a filibuster. Just as importantly, a “present” or “absent” vote is equivalent to a no vote. The only reason the minority even bother to vote, as far as I can see, is to avoid accusations of laziness back home.

In the end, Reid ends up looking like the fool. Democratic presidential candidates had to leave the campaign trail to go in for the vote, Republicans were allow out to play, and the Republicans continue to prevent a Senate resolution on Iraq. But don’t think this fight is over… there is a mighty big appropriations bill working its way down the pike, and I think Rep. Murtha is going to have a few things to say about it.

probonogeek Politics