Later On

A blog written for those whose interests more or less match mine.

Archive for May 23rd, 2010

More on Libertarianism v. The Real World In Which We Live

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John Cole at Balloon Juice:

That piece from Matt Welch the other day is the gift that keeps on giving:

Instead, I’ll close with this: The “worldview” of libertarianism suggested, back in the early 1970s, that if you got the government out of the business of setting all airline ticket prices and composing all in-flight menus, then just maybe Americans who were not rich could soon enjoy air travel.

Frontline, this Tuesday:

Last February, Continental Flight 3407 crashed outside of Buffalo, N.Y., killing 49 people onboard and one on the ground. Although 3407 was painted in the colors of Continental Connection, it was actually operated by Colgan Air, a regional airline that flies routes under contract for US Airways, United and Continental. The crash and subsequent investigation revealed a little-known trend in the airline industry: Major airlines have outsourced more and more of their flights to obscure regional carriers.

Today, with regional airlines accounting for more than half of all scheduled domestic flights in the United States and responsible for the last six fatal commercial airline accidents, FRONTLINE producer Rick Young and correspondent Miles O’Brien investigate the safety issues associated with outsourcing in Flying Cheap.

“No doubt in our mind that when she’s buying this ticket, she’s buying a flight on Continental,” says Scott Maurer, who lost his daughter, Lorin, on 3407. “She believed she had Continental pilots and Continental safety and Continental service, but, you know, we know different today.”

An investigation of the crash by the National Transportation Safety Board was recently completed and identified pilot error as a major factor in the accident. But the investigation has also put the spotlight on operations of regional airlines like Colgan Air, where the first officer on 3407 had made less than $16,000 the previous year and the captain had failed five flight tests and received inadequate training on a critical safety system involved in the crash.

We’ll call it a moral victory for libertarianism.

Written by LeisureGuy

23 May 2010 at 4:41 pm

Wesley likely to fledge tonight

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It will probably be shortly after 8:00 p.m. PDT. People are going to start watching at 8:00, but actual fledge time probably 8:15 or so. Be there or be square.

Written by LeisureGuy

23 May 2010 at 4:29 pm

Posted in Daily life

More on the Social Security death panel

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Jane Hamsher at Firedoglake:

There’s a very important an article in the Neiman Watchdog this morning (Harvard’s journalism review, Deputy Editor Dan Froomkin). It’s written by Nancy Altman and Eric Kingson, entitled “Has Obama created a Social Security ‘death panel’?

Headlines like that are normally the reserve of DFH bloggers, so it’s notable that the academic world is talking about Obama’s Deficit Commission in that way. Even more notable are the article’s authors: Altman and Kingson both served on the Obama Campaign’s Retirement Security Advisory Committee, and then on the Advisory Committee to the Social Security Administration Transition Team.

Altman was on the faculty of Harvard University’s Kennedy School of Government, has taught at the Harvard Law School, and was Alan Greenspan’s assistant when he chaired the commission that developed the 1983 Social Security amendments. She also served as a legislative assistant on Social Security issues to John Danforth, whose Danforth-Kerrey Commission was the predecessor to Obama’s commission. Kingson was also a staffer on the Greenspan Commission, and was Social Security Advisor to the Kerrey-Danforth Commission.

Alex Lawson has been livestreaming the closed door of the Catfood Commission on FDL.  They have refused to conduct their deliberations in public, but the committee is stacked with enough votes to cut benefits.  It takes 14 out of 18 votes to pass any recommendation on the committee, and there appear to be a sufficient number of votes to do so based on the past positions of individual members.  So Altman and Kingson raise important questions, but to my mind, none more important than these:

Q. Why is the Commission apparently working so closely with billionaire Peter G. Peterson, who served in the Nixon administration and who has a clear ideological agenda?

Q. Mr. Peterson has been on a decades-long crusade against Social Security. The day after the first meeting of the commission, which focused heavily on the need to cut Social Security, the co-chairs and two other members of the commission participated in a Peterson event that reinforced the same message. A Peterson-funded foundation is supplying commission staff. And Peterson’s foundation is funding America Speaks to develop a series of high-profile town halls across the country to host “a national discussion to find common ground on tough choices about our federal budget.” (For more background about Mr. Peterson, see William Greider in the Nation on Looting Social Security — Part 2.)

Note the buried lede:  Pete Peterson is supplying commission staff.

One important lesson I learned from the health care fight:  the health care industry had been laying the groundwork for this for years, and that should have been an early focus.   It wasn’t until the Gruber incident that I learned how the medical industrial complex had been working through foundations like Kaiser for over a decade to basically buy the academic underpinnings of their plan (and probably longer if you count the GOP/Heritage response to HillaryCare as its roots).  They ran a  nice back-and-forth between Congress, the White House, the CBO and Gruber to make it look he was supplying independent confirmation of the health care bill, when in fact it was all part of the same carefully orchestrated plan.  It bought them a lot of credibility that they otherwise would not have had in the academic world.

Pete Peterson has been serving the same function on Social Security that Kaiser and others did on health care. From the Concord Commission to the Peterson Foundation, cutting Social Security benefits and diverting as much money as possible into Wall Street’s coffers has been Peterson’s holy grail.  He himself was on the Danforth-Kerrey Commission, and was set to be the key note speaker at Obama’s first fiscal responsibility summit shortly after the inauguration.  After we reported it, the White House canceled him then denied he had been scheduled to speak, but Robert Kuttner subsequently confirmed it in the Washington Post.

The current budget deficit will be used to justify cuts to Social Security benefits, just as the surplus was used to justify cuts during the Clinton era.  As Steven Gillon said the other day when he was here talking about his book on the secret Clinton-Gingrich deal negotiated by Bowles to cut Social Security in the 90s, Bowles is running the same play.

Peterson plays a huge role in the world that shapes the thinking that drives the commission. Bill Clinton simply gushed about him at Peterson’s own recent fiscal summit.  As long as Peterson is allowed to hide in the shadows and pull the strings, the choices that the Commission will make will come from a very small menu.  Defense cuts will not be a factor.  They won’t be talking about the trillion dollars they could save over the next decade simply by expanding Medicare to cover businesses. They’re only going to ask the questions that drive them to the same answer:  cut Social Security.

It’s going to be important to tell the tale of Peterson’s inexorable march and diffuse the notion that the Commission is simply responding to temporal economic factors.  This is class war, pure and simple.  The rich against the poor. Hedge fund billionaires and defense contractors against senior citizens struggling to get by. Altman and Kingson have done us all a tremendous favor by opening up the discourse and asking important questions that need to be answered before the Commission makes its report on December.  That’s just in time to jam it through a lame duck Congress before the Christmas break, something both John Conyers and John Boehner have warned about — a repeat of what Bowles planned to do in the 90s.

Written by LeisureGuy

23 May 2010 at 2:34 pm

Congress’ 30-Day Deadline for Rubber-Stamping Exploration Plans

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Interesting. This explains why the EPA gives exemptions: Congress in effect required them to. Marcy Wheeler:

The other day, when Sheldon Whitehouse asked Secretary of Interior Ken Salazar why BP had gotten an exemption from the full-blown NEPA process from which it presumably should have been categorically excluded, Salazar referenced a 30-day deadline from Congress to approve exploration plans.

Senator, there has been significant environmental review, including Environmental Impact Statements that has been conducted with respect to this activity in the Gulf of Mexico. It is an area where we know a lot about the environment, we know a lot about the infrastructure that is there. The question of the categorical exclusion in part relates to the Congressional 30-day requirement that MMS has to approve or disapprove an exploration plan. [my emphasis]

Mineral Management Service Director Elizabeth Birnbaum elaborated on this 30-day deadline on Wednesday.

Under the National Environmental Policy Act we’re required to examine the environmental impacts of any major federal actions, certainly the oil and gas leasing is a major federal action. We have conducted many Environmental Impact Statements before we get to the point of an individual well drilling decision. We conduct an EIS on the full 5-Year Plan for oil and gas drilling, We have conducted EIS on the lease sales in the Gulf and then separately in Alaska. We also conducted some separate Environmental Impact Reviews on leasing in the particular area–drilling in the particular area in the Mississippi Canyon here in the Gulf. When we get to the point of deciding on an individual exploration plan for a particular permit, we are under a statutory obligation under the Outer Continental Shelf Lands Act to make a decision within 30 days. That very much limits our ability to conduct environmental reviews. Many of our environmental reviews are categorical exclusions. We review that to determine whether there’s a trigger for us to do a full Environmental Assessment, which we did actually on exploration plans for Arctic drilling. But we’re still limited to that 30-day decision, and we have to still make a decision on whether to go forward with an exploration plan within 30 days, which limits the amount of environmental review we can conduct. In the package that the Administration sent up to provide additional appropriations, we also asked to lift that limit in the Outer Continental Shelf Lands Act to allow 90 days or more to provide more full analysis of exploration plans before drilling.

Here’s a history of the OCSLA. The 30-day requirement itself is described in the plan approval process of the OCSLA.

(1) Except as otherwise provided in this subchapter, prior to commencing exploration pursuant to any oil and gas lease issued or maintained under this subchapter, the holder thereof shall submit an exploration plan to the Secretary for approval. Such plan may apply to more than one lease held by a lessee in any one region of the outer Continental Shelf, or by a group of lessees acting under a unitization, pooling, or drilling agreement, and shall be approved by the Secretary if he finds that such plan is consistent with the provisions of this subchapter, regulations prescribed under this subchapter, including regulations prescribed by the Secretary pursuant to paragraph (8) of section 1334 (a) of this title, and the provisions of such lease. The Secretary shall require such modifications of such plan as are necessary to achieve such consistency. The Secretary shall approve such plan, as submitted or modified, within thirty days of its submission, except that the Secretary shall disapprove such plan if he determines that

(A) any proposed activity under such plan would result in any condition described in section 1334 (a)(2)(A)(i) of this title, and

(B) such proposed activity cannot be modified to avoid such condition. If the Secretary disapproves a plan under the preceding sentence, he may, subject to section 1334 (a)(2)(B) of this title, cancel such lease and the lessee shall be entitled to compensation in accordance with the regulations prescribed under section 1334 (a)(2)(C)(i) or (ii) of this title. [my emphasis]

And that sets the standard for rejecting an application in 1334 (a)(2)(A)(i) this way:

(i) continued activity pursuant to such lease or permit would probably cause serious harm or damage to life (including fish and other aquatic life), to property, to any mineral (in areas leased or not leased), to the national security or defense, or to the marine, coastal, or human environment;

Now, I would have to do a lot more review of legislative history of the OCSLA to see where that 30-day deadline came from, though so many of the deadlines in the OCSLA are set at 30 days, it might just have been arbitrary (or, it might have been what appeared to be a reasonable deadline to make sure the process kept moving forward—you gotta Drill Baby Drill, dontcha know).

But given Salazar’s and Birnbaum’s statements, the effect appears to be clear. That 30-day deadline appears to ensure that the MMS only looks closely at these exploration plans if there’s a blinking red flag in the plan, and not something trivial like drilling in extremely deep waters and/or innovative drilling plans—the things Whitehouse noted that should have prevented this exploration plan from being exempted from an individual assessment, the things that are causing such acute problems now.

And of course, to actually change this 30-day rubber stamp process, the legislation is going to have to get by industry shills like Lisa Murkowski and James Inhofe. Something to look forward to, I guess.

Oh, one more thing. The Congressman who raised concerns about the Arctic drilling? That’s the normally loathsome Heath Shuler. Just an indication of how a giant disaster can turn even the bluest of dogs into hippie environmentalists.

Written by LeisureGuy

23 May 2010 at 2:26 pm

Human Rights Watch enters the Israel argument

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Andrew Sullivan:

Goldblog and Beinart go another round. Peter defends HRW:

I recognize that Human Rights Watch may make mistakes. But it has done reports on Palestinian human rights abuses and lots of them (many more than on Israel) on human rights issues in the Arab world. Groups like AIPAC, which ONLY criticize Israel’s neighbors and never criticize Israel, are in a particularly bad position to charge one-sidedness, it seems to me. And the argument that Human Rights Watch should not investigate Israel because it is a democracy doesn’t make sense. I have no problem with them investigating torture in the United States–I’m glad they did. What’s more, and this is so obvious that it’s often ignored, Israel is NOT a democracy in the West Bank, which is where a lot of the abuses occur.

Human Rights Watch and Amnesty International, while not perfect, are the most reputable human rights organizations in the world precisely because they piss off so many governments of all ideological stripes. They’re in that business. People who try to discredit them in what they believe is Israel’s interest do two very damaging things. First, they undermine the other work they do. If Human Rights Watch gives an exception to Israel, it will be much more likely to fold on say, Kashmir, another territory occupied by a democracy where there are big human rights problems. Second, as I said in the piece, if you convince Human Rights Watch to stop criticizing Israel you dramatically undermine Israeli human rights organizations that often do parallel work, which, of course, is exactly what Netanyahu wants. His vice-prime minister is on record, after all, as calling Peace Now a "virus."

Written by LeisureGuy

23 May 2010 at 2:24 pm

Intellectual consistency can be overrated

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Michael Tomasky in the Guardian:

When we write about libertarianism, most liberals feel compelled to say something like, you know, I disagree with that viewpoint, but I respect that it’s principled and intellectually consistent.

I say balderdookey. Libertarianism is kookoo. There can be no such thing as a basically stateless society (except for national defense and barest administration of law, I think are the exceptions they typically allow for). It’s just ridiculous. Civil society would collapse without the state.

I’ve written this before, a few months ago. Conservatives, and libertarians, seem to think that we have regulations in this society because we have a bunch of underemployed pencil pushers sitting around dreaming up ways to make small business people’s lives miserable.

It’s ridiculous. We have regulations because throughout history people in various pursuits did really sleazy and unethical things. They swindled investors, they dumped toxins into bodies of water, they made children work long hours for slave wages. Et cetera. And so laws were passed and regulations were written.

And unfortunately such is man’s endless capacity for sleaze and unethicality that this process will never end: as technology presents new ways to be sleazy, we’ll always need to invent new ways to prevent sleaze from happening.

Yes, fine. Some regulations are onerous. Liberals should always be sensitive to legitimate concerns along these lines.

But you need a state. Time and history have proven no one else will perform these tasks.

So there’s nothing in the least intellectually respectable about libertarianism. Intellectually consistent? Great. So was Goebbels. That doesn’t mean much to me.

We all support a few libertarian-ish principles; we all agree that the state should have some limits. For example, I think it’s perfectly fine for the state to make fast-food joints post nutrition information. But I would oppose the state having the right to ban the Quarter Pounder. So we all get that kind of thing.

But big-L Libertarianism is vapid. I hope in the next few months it is properly exposed as such.

Libertarianism has never made any sense at all in human terms, but it can be argued consistently in the kind of shallow arguments typically encountered in dorm-room discussions early in the first semester of college. But anyone who has any experience in the world—and any knowledge of history—knows that Libertarianism is a big vacuum.

Governments do make bad laws (prohibition of alcohol is an example in our own history), but common sense experience and an analysis of the outcomes can correct those mistakes (as we did for alcohol prohibition and, one hopes, will soon do for cannabis prohibition).

But the government’s making mistakes sometimes doesn’t mean we don’t need governments—just as businesses make mistakes, but no one is saying that we don’t need businesses. (We do need to watch them—and our government—like hawks, though: power is addictive, and those who have it will try to get more. That’s why transparency is so important.)

Written by LeisureGuy

23 May 2010 at 2:21 pm

Posted in Daily life, Government

Has Obama created a Social Security ‘death panel’?

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Nancy Altman and Eric Kingson at Nieman Watchdog:

President Obama and the leadership in Congress have delegated enormous, unaccountable authority to 18 unrepresentative, inordinately wealthy individuals. The 18 individuals are meeting regularly, in secret, behind closed doors, until safely beyond this year’s mid-term election. If they reach agreement, their proposal will be voted on in December by a lame duck Congress, without the benefit of open hearings and deliberations in the pertinent committees and without the opportunity for open debate and amendment on the floors of the House and Senate. Despite the speed and lack of accountability, the legislation will affect, in substantial ways, every man, woman, and child in this nation.

Who are these powerful people and what are their views?

They are the members of President Obama’s newly-formed National Commission on Fiscal Responsibility and Reform. They lack racial and gender diversity, and more importantly, they lack diversity of opinion. Their mantra is that “everything is on the table,” but their one member who has any expertise with respect to defense spending, for instance, is the CEO of a major defense contractor that devotes millions of dollars each year to lobby Congress for more defense spending.

“Everything is on the table,” they say, but the members appointed by the minority leaders in the House and Senate have made clear that they do not believe that the problems in this country stem from under-taxing, rather from overspending. The one area that they seem to be in agreement on — and which they are in fact, focusing on like a laser — involves programs that help the middle class and those Americans who are the most vulnerable. Even liberal Senator Richard Durbin has stated, “the bleeding-heart liberals… have to…make real sacrifices to strengthen our nation.”

The co-chairs, in particular, seem to have a clear agenda. Even before the commission held its first meeting, Erskine Bowles went on record before the North Carolina Bankers’ Association saying that if the Commission doesn’t "mess with Medicare, Medicaid and Social Security … America is going to be a second-rate power" in his lifetime. (And he is already 64!) Alan Simpson, known for giving ugly voice to harsh, ageist stereotypes, described the future of the fiscal commission: "It’ll be a bloodbath. Let me tell you, everything that Bush and Clinton or Obama have suggested with regard to Social Security doesn’t affect anyone over 60, and who are the people howling and bitching the most? The people over 60. This makes no sense. You’ve got to scrub out [of] the equation the AARP, the Committee for the Preservation of Social Security and Medicare, the Gray Panthers, the Pink Panther, the whatever. Those people are lying… [They] don’t care a whit about their grandchildren…not a whit." (For more about Alan Simpson, see Trudy Lieberman in CRJ: More Words of Wisdom from Alan Simpson.)

We write to raise questions and encourage press inquiry now, before the commission reports, at which point its recommendations could be on track and moving fast. Here are a few angles to explore:

Q. Have the members of the Commission made up their minds, at least with respect to the broad outlines, making the whole exercise simply an effort by elected officials to escape political accountability?

Q. Why is the Commission apparently working so closely with billionaire Peter G. Peterson, who served in the Nixon administration and who has a clear ideological agenda?

Q. Mr. Peterson has been on a decades-long crusade against Social Security. The day after the first meeting of the commission, which focused heavily on the need to cut Social Security, the co-chairs and two other members of the commission participated in a Peterson event that reinforced the same message. A Peterson-funded foundation is supplying commission staff. And Peterson’s foundation is funding America Speaks to develop a series of high-profile town halls across the country to host “a national discussion to find common ground on tough choices about our federal budget.” (For more background about Mr. Peterson, see William Greider in the Nation on Looting Social Security — Part 2.)

Q. Why the urgent focus on Social Security? In the past, Social Security has always been considered under the normal legislative process, with the opportunity for full amendments. According to the program’s actuaries, it is able to pay all benefits in full and on time for over a quarter of a century. Even its most diehard critics, who try mightily to convince the rest of us that the program is in crisis, can’t mount an argument that there is a problem for another five years or so. So what is the rush? What is the need for such an unaccountable, fast-tracked process when one has never been needed before? Why, in spite of the evidence that Social Security is working as intended and that there is growing need for the kind of broad and reliable protection provided under the program, is it being singled out by Bowles and Simpson and seemingly by the White House for a major trimming?

Q. The American public has stated in a number of polls that they prefer to increase the program’s revenue, even if it means them paying more, rather than reducing the benefits that are so vital to almost all its beneficiaries. (See, for example, this May 2005 Gallup Poll.) So why does the commission seem so determined to ignore the views of the American people, and insist that there must be benefit cuts?

Q. The members of the commission wrap themselves in the mantle of their children and grandchildren. Alan Simpson routinely says that he is a stalking horse for his grandchildren. This is good, but what about everyone else’s grandchildren? Especially those lacking privileged backgrounds; those more likely to need strong retirement, disability and survivorship protections as they grow and raise their own families and hopefully eventually reach retirement age? If these commissioners’ focus is on all grandchildren, shouldn’t they be more focused on investments today to ensure that their parents have good-paying jobs and that they can receive a first rate education? Why do they seem so intent on cutting the benefits of that future generation? As Simpson himself has made clear, he intends to spare today’s elderly, which means it is the benefits of the next generation which will be cut.

Q. And finally, and perhaps most importantly, are there efforts to buy off the press? Just in time for this commission, Mr. Peterson, not content to buy access, has now used his fortune to establish his own news service, so the story gets reported his way. The Fiscal Times is likely to be active in reporting about the commission. Given that Mr. Peterson’s son, Michael, has the power to hire and fire the two top editors, will its reporting be objective? Its first effort did not inspire confidence. (See Trudy Leiberman’s Dust up at the Washington Post and Richard Perez-Pena’s Sourcing of Article Awkward for Paper.)

At a time when the nation has near double-digit unemployment, when many responsible economists believe we could, without additional federal spending, experience a deeper recession, it is imperative for the press to ask the hard questions. Our elected officials should not be given a pass on an austerity approach that could have serious, long-ranging implications for all Americans, and particularly those most vulnerable. They have no one to protect them but an open, inquiring press.

Nancy Altman is author of The Battle for Social Security and co-director of Social Security Works.

Eric Kingson is a professor of social work at Syracuse University and co-director of Social Security Works.

I would not be surprised at all if Obama attempted to dismantle the Social Security system. And you’ll note that he is maintaining his usual "transparency"—the word means one thing when campaigning, but switched to its antonym once he took office.

Written by LeisureGuy

23 May 2010 at 2:14 pm

Emotional Distress Lawsuit Based on Public Detention of Muslim Woman in Nightgown (During Search of Her Home)

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Eugene Volokh:

I blogged in March about the court’s rejecting the religious accommodation claim in this case, but the court (in Jama v. United States(W.D. Wash. May 17)) has now decided that the intentional infliction of emotional distress claim could go forward:

This controversy stems from a July 2006 raid of Plaintiff’s apartment by federal and local law-enforcement authorities who were looking for evidence relating to [distribution of khat, a controlled substance]…. While officers were searching her apartment, Plaintiff was wearing a nightgown, without a bra or underwear underneath. The other four detained individuals were men, two of whom were unrelated to Plaintiff. This distressed her, because her Muslim faith prohibits her from appearing in a relative state of undress or from appearing without a head scarf before unrelated males. Plaintiff is not a fluent English speaker, so she asked her uncle Mr. Hassan, who was also detained, to request a cover for her hair and body from police officers. DEA Agent Smith refused Plaintiff’s requests for modest clothing, and photographed her in the nightgown and without a head scarf. After taking the photographs, Agent Smith placed a loose piece of cloth over Plaintiff’s head.

Approximately one hour after the officers entered Plaintiff’s apartment, they moved the detainees outside. Plaintiff was still wearing nothing more than her nightgown. Because Agent Smith had failed to secure the piece of cloth, it fell off Plaintiff’s head as she was walking outside. Plaintiff, whose hands were still tied behind her back, was unable to grab the cloth and cover herself. Officers forced Plaintiff and the male detainees to move outside and sit on the ground, from which position they were visible to neighbors. Mr. Hassan again explained to police officers that Plaintiff’s religion forbade her from appearing uncovered before unrelated men, and asked that she be allowed to remain inside the apartment, or at least behind the building, from which locations neighbors would be unable to see her. Officers refused the request, thereby forcing Plaintiff to appear in a state of relative undress before unrelated males….

Plaintiff has filed a claim for outrage [also known as intentional infliction of emotional distress –EV] against one defendant: the United States Government. Plaintiff’s outrage claim reads, in its entirety: “By virtue of the above-described actions of agents of the United States, the United States is liable for the tort of outrage because of the extreme and outrageous conduct of [Officers Smith and Hackett] and the officers under their supervision, intentionally or recklessly inflicting severe emotional distress on Plaintiff.” Plaintiff argues that the United States Government is liable for the actions of its agents under the Federal Tort Claims Act.

To state a claim for outrage under the common law of Washington State, a plaintiff must show “(1) extreme and outrageous conduct; (2) intentional or reckless infliction of emotional distress; and (3) actual result to the plaintiff of severe emotional distress.” The State Supreme Court has emphasized that the first two elements pose a high bar to relief:

First, the emotional distress must be inflicted intentionally or recklessly; mere negligence is not enough. Second, the conduct of the defendant must be outrageous and extreme…. [I]t is not enough that a defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by ‘malice,’ or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability exists only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. 

Whether a defendant’s conduct is so egregious that it constitutes the tort of outrage is normally a jury question. At the summary-judgment stage, the trial court’s function is “to determine if reasonable minds could differ about whether the conduct was so extreme as to result in liability.” In determining whether the case should go to the jury, a trial court considers: “(a) the position the defendants occupied; (b) whether the plaintiff was particularly susceptible to emotional distress, and if the defendants knew this fact; (c) whether the defendants’ conduct may have been privileged under the circumstances; (d) whether the degree of emotional distress caused was severe as opposed to merely annoying, inconvenient, or embarrassing to a degree normally occurring in a confrontation between the parties; and (e) whether the defendants were aware that there was a high probability that their conduct would cause severe emotional distress, and they consciously disregarded it.” …

Plaintiff has properly pled and supported a claim for outrage. Taking the facts in the light most favorable to Plaintiff, a rational jury could find that federal officials, who enjoyed a position of power over Plaintiff while conducting the search in this case, forced her to appear in a state of relative undress before unrelated men for a significant period of time. They forced her to appear in this state of undress even though she had modest clothing in the very apartment that officers were searching. A rational jury could find that police officers therefore unnecessarily degraded Plaintiff, and that this behavior ought “to be regarded as atrocious, and utterly intolerable in a civilized community.”

A rational jury could also find that federal agents knew full well that Plaintiff’s Muslim faith made her particularly susceptible to emotional distress under these circumstances. See Seaman, 59 P.3d at 701 (stating that a trial court should consider, inter alia, “the position the defendants occupied[,]” and “whether the plaintiff was particularly susceptible to emotional distress, and whether the defendants knew of this fact”). Plaintiff continuously requested modest clothing and explained that her requests were the result of sincerely held religious beliefs. Federal officials nonetheless “consciously disregarded” the effect that their refusal was likely to have on Plaintiff. Whether such behavior is sufficiently “outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency” is a question for the jury.

It seems very much as though what happened was a result of religious bigotry on the part of the law enforcement officials—and moreover was totally unnecessary.

Written by LeisureGuy

23 May 2010 at 2:00 pm

The Tennessee deluge of 2010: Nashville’s ‘Katrina’ and the dawn of the superflood

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As global warming moves along we can expect anomalous weather events to occur with greater frequency. In particular, warmer air holds more moisture than colder air, so record-setting rainstorms and snowfalls are likely to increase—and with them, flooding. Eric Normand describes in the recent flood in Kentucky:

One of the epic extreme weather events in U.S. recorded history devastated one of America’s great cities this month.   But the status quo media has barely told the story of Nashville’s Katrina (let alone its link to human-caused climate change).

Since the great Tennessee deluge of 2010 foreshadows the shape of things to come for many of the world’s great cities if we stay anywhere near our current emissions path, I’m going to begin a multipart series on it.  Uber-meteorologist Dr. Jeff Masters and I have already touched on the link to warming already (see AP: Calling deadly Tennessee superstorm an “unprecedented rain event” did “not capture the magnitude”), and I’ll have more scientific analysis on that next week.  What follows is some straightforward — but stunning — reporting on the disaster by guest blogger Eric Normand, a Tennessee-based writer and musician.

The rain began falling on the morning of Saturday, May 1st, 2010, and by the time it finished, approximately 36 hours later; it had dumped a record rainfall of between 12 and 20 inches across Middle and Western Tennessee, devastating 52 of Tennessee’s 95 counties. Rivers that normally spanned 100 feet across swelled to a half-mile or more, flooding cities, towns, and roadways, washing away homes and bridges, destroying businesses and infrastructure, and leaving thousands homeless. At least 33 people died across Tennessee, Mississippi, and Kentucky; some while trapped in cars on flooding interstates, others who were swept away from flooding homes by the raging waters, while thousands more were left stranded in remote communities without power or communication for days. Water plants were decimated, the Grand Ole’ Opry and many other historic buildings and icons damaged or destroyed, and more than $1.9 billion of damage has been sustained to the private sector in Nashville alone.

And where was our national media in all of this? During the flood, and in the days that followed, mainstream news media like CNN, MSNBC, and Fox, provided minimal coverage of this disaster, a disaster that is likely to be the costliest non-hurricane water related disaster in American history. Our plight was dwarfed by the Gulf oil spill and the New York City car bomber which, while being important stories, were not the only stories. In spite of the American press corps residing under a blanket of ineptitude, all levels of government, combined with an army of volunteers, quickly began to mobilize.

“The President was on the phone to me before the sun came up practically on Monday morning” stated Tennessee Governor Phil Bredesen. FEMA administrator Craig Fugate, along with Bredesen and Nashville Mayor Karl Dean, toured flooded areas later in the day. By Tuesday, several counties had been declared federal disaster areas which began to allocate funding for the relief effort (the number of counties declared federal disaster areas would eventually reach 42). By Wednesday, almost 300 members of the Tennessee National Guard were assisting in rescue and relief efforts and the Red Cross was present early on as well.

Read the rest of this entry »

Written by LeisureGuy

23 May 2010 at 1:54 pm

Potential changes in the talking-heads Sunday shows

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Generally speaking, the pundits and their guests on the Sunday morning talk shows are white, elderly, and clueless. (I’m not thinking particularly of Senator McCain, but you get the idea.) And they generally make frequent statements that are contrary to facts, alas.

But I’m thinking that may change when guests who are younger and more technologically knowledgeable appear. Specifically, such guests will routinely carry an iPad-like tablet computer that they use for their calendar, to-do lists, etc. And such a guest is likely to spend the day before an appearance in reviewing the hot topics (immigration enforcement, magnitude of the oil spill, the economy) and loading the table with graphs relevant to each topic. Then, when someone like Bill Kristol makes one of his frequent contrary-to-fact statements, the guest can simply tap the tablet to bring up the appropriate graph and show it to the panel, effectively refuting Kristol and avoiding a “he-said, she-said” argument: “Here is a graph created that shows the monthly gains and losses of jobs since December 2007. As you see, Bill, not only are jobs being added at a good rate, the trend is clearly positive. The change in the color of the bars represents a change in administration: red bars are from when Bush was president, and the blue bars indicate Obama is president.”

This will be MUCH more effective, and I don’t think it would be difficult to have a few graphs ready for any hot topic.

The graph I’m referring to in the example is, of course, this one (click to enlarge):

Written by LeisureGuy

23 May 2010 at 1:47 pm

Terrific recipe from The Wife

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Just made this for lunch:

8 oz shrimp in shell (these were fairly large: 10/12 count)
1.5 Tbsp Lucini Fiery Chili-Infused Extra Virgin Olive Oil (just found this while looking for pecan oil)
Casa Sanchez Pico de Gallo
cooked white rice
sheep or goat feta (I used a sheep’s milk feta made in France)

While the rice cooked, I shelled the shrimp then sautéed them in the oil—which is absolutely wonderful! Once the shrimp were done (it takes little time), I removed the skillet from the heat and added Casa Sanchez Pico de Gallo. I didn’t measure, but probably 3/4 cup.

Rice in a bowl, shrimp with pico de gallo over that, and crumble some feta on top. You could probably then squeeze a lemon over all.

Extremely delicious—it qualifies as a recipe for when you have company, especially since it’s dead easy and takes no time at all to prepare. Obviously, you can use regular olive oil. I do like a little chili, though.

Steve from Kafeneio points out that in the EU "feta" is a Protected Designation of Origin (PDO), so there you can’t call a cheese "feta" unless it’s made in Greece. (They do, however, make some so-called "feta" with cow’s milk. I vastly prefer the original version, which used only sheep or goat milk—though the original was made not only in Greece, but also in Turkey, Bulgaria, and Macedonia (and now, obviously, in France), with some saying that the very best was Bulgarian.

Since I bought the cheese in the US, it is labeled "feta" though it was made in France.

Written by LeisureGuy

23 May 2010 at 1:27 pm

Posted in Daily life, Food, Recipes

EPA Officials Weigh Sanctions Against BP’s U.S. Operations

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Potentially some very good (thought after-the-fact) news.

Abrahm Lustgarten at ProPublica:

Officials at the Environmental Protection Agency are considering whether to bar BP from receiving government contracts, a move that would ultimately cost the company billions in revenue and could end its drilling in federally controlled oil fields.

Over the past 10 years, BP has paid tens of millions of dollars in fines and been implicated in four separate instances of criminal misconduct that could have prompted this far more serious action. Until now, the company’s executives and their lawyers have fended off such a penalty by promising that BP would change its ways.

That strategy may no longer work.

Days ago, in an unannounced move, the EPA suspended negotiations with the petroleum giant over whether it would be barred from federal contracts because of the environmental crimes it committed before the spill in the Gulf of Mexico. Officials said they are putting the talks on hold until they learn more about the British company’s responsibility for the plume of oil that is spreading across the Gulf.

The EPA said in a statement that, according to its regulations, it can consider banning BP from future contracts after weighing "the frequency and pattern of the incidents, corporate attitude both before and after the incidents, changes in policies, procedures, and practices."

Several former senior EPA debarment attorneys and people close to the BP investigation told ProPublica that means the agency will re-evaluate BP and examine whether the latest incident in the Gulf is evidence of an institutional problem inside BP, a precursor to the action called debarment.

Federal law allows agencies to suspend or bar from government contracts companies that engage in fraudulent, reckless or criminal conduct. The sanctions can be applied to a single facility or an entire corporation. Government agencies have the power to forbid a company to collect any benefit from the federal government in the forms of contracts, land leases, drilling rights, or loans.

The most serious, sweeping kind of suspension is called "discretionary debarment" and it is applied to an entire company. If this were imposed on BP, it would cancel not only the company’s contracts to sell fuel to the military but prohibit BP from leasing or renewing drilling leases on federal land. In the worst cast, it could also lead to the cancellation of BP’s existing federal leases, worth billions of dollars.

Present and former officials said the crucial question in deciding whether to impose such a sanction is …

Continue reading.

Written by LeisureGuy

23 May 2010 at 9:21 am

The true face of business: Deepwater Horizon survivors allege they were kept in seclusion after rig explosion, coerced into signing legal waivers

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Brett Dykes at Yahoo News:

According to two surviving crew members of the Deepwater Horizon, oil workers from the rig were held in seclusion on the open water for up to two days after the April 20 explosion, while attorneys attempted to convince them to sign legal documents stating that they were unharmed by the incident. The men claim that they were forbidden from having any contact with concerned loved ones during that time, and were told they would not be able to go home until they signed the documents they were presented with.

Stephen Davis, a seven-year veteran of drilling-rig work from San Antonio, told The Guardian’s Suzanne Goldenberg today that he was held on a boat for 36 to 40 hours after diving into the Gulf from the burning rig and swimming to safety. Once on a crew boat, Davis said, he and the others were denied access to satellite phones or radio to get in touch with their families, many of whom were frantic to find out whether or not they were OK.

Davis’ attorney told Goldenberg that while on the boat, his client and the others were told to sign the statements presented to them by attorneys for Transocean — the firm that owned the Deepwater Horizon— or they wouldn’t be allowed to go home. After being awake for 50 harrowing hours, Davis caved and signed the papers. He said most of the others did as well.

Davis’ story seems to be backed up by a similar account given to NPR by another Deepwater Horizon crewmember earlier in the month. Christopher Choy, a roustabout on the rig, said that the lawyers gathered the survivors in the galley of a boat and said, "’You need to sign these. Nobody’s getting off here until we get one from everybody.’ … At the bottom, it said something about, like, you know, this can be used as evidence in court and all that. I told them, ‘I’m not signing it.’ "

Choy said that once he was finally allowed to get off the boat, he was shuttled to a hotel, where he met up with his wife. At the hotel, representatives from Transocean confronted him again and badgered him to sign the statement. Exhausted, traumatized and desperate to go home, Choy said that he finally relented and signed.

Choy’s lawyer, Steve Gordon, is incensed over what transpired in the hours after the explosion. He, along with other attorneys for Deepwater Horizon workers, is trying to get the documents voided by the courts.

"It’s absurd. It’s unacceptable, and it’s irresponsible," Gordon told NPR.

Seems clear that the documents were signed under duress. They should indeed be invalidated. Moreover, the company should suffer a serious penalty for this behavior.

Written by LeisureGuy

23 May 2010 at 9:18 am

Posted in Business, Daily life, Law

Empathy: A gift of evolution

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The Age of Empathy: Nature’s Lessons for a Kinder Society

by Frans de Waal

A review by Joan Silk

The thesis of Frans de Waal’s new book, The Age of Empathy, is that empathy comes "naturally" to humans, by which he means that it is a biologically grounded capacity that all people share. According to de Waal, empathy has deep evolutionary roots, having originated before the order Primates came into existence. The antiquity of empathy firmly fixes its place in human nature, he believes, making it a robust trait that develops in all societies. De Waal makes an impassioned and eloquent case that understanding the role of empathy in nature can help us build a kinder and more compassionate society. His message will have considerable resonance for many readers.

De Waal has long been a critic of the notion that evolution drives us (and our primate relatives) to express the darker sides of our natures. He has been impatient with colleagues who are fixated on the struggle for existence and give short shrift to the need for cooperation and accommodation among interdependent animals that live in groups. Thus, while many primatologists have focused on evolutionary pressures that generate high levels of competition and conflicts within a group, de Waal has emphasized the importance of the mechanisms that primates use to defuse tension, resolve conflicts and repair the damage caused by them.

De Waal’s argument in this book hinges on his claim that empathy is an ancient trait. Emphasizing the continuity in empathic concern across species, he speculates that empathy may be as old as maternal care itself. His reasoning is partly based on the selective advantages that he thinks empathy would have provided for mothers. Females who were sensitive to, and able to anticipate, the needs of their developing offspring would have been more successful mothers than those who were less responsive, he argues. But even if that’s the case, it does not necessarily mean that mammals actually evolved the capacity for empathy. After all, it might also have been useful for mammalian males to have the capacity to lactate, because in some circumstances males who could provide nourishment for their young might have had greater reproductive success than those who lacked this capacity. Nevertheless, except under rare specific conditions, mammalian males do not lactate.

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Written by LeisureGuy

23 May 2010 at 9:07 am

Posted in Books, Daily life, Science

Bacon, Hot Dogs And Sausage Look Worse For Heart Than Unprocessed Red Meat

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Interesting report by Deborah Franklin on NPR:

The link between heart disease or diabetes and a diet rich in red meat has always been a little fuzzy. Some studies show a strong connection; others not so much.

Now Harvard researchers think they may have turned up a reason for the discrepancy: Most studies don’t distinguish between processed meat and fresh.

When nutrition epidemiologist Renata Micha and her colleagues pooled and analyzed the data from 20 previous studies in a new way, they spotted the trend. Healthy people who tended to eat a lot of preserved meats like bacon, sausage, hot dogs, and cold cuts were much more likely than those who rarely touch the stuff to go on to develop heart disease or Type 2 diabetes.

The more they ate, the higher the risk. Eating unprocessed red meat with the same amount of fat — steaks, hamburgers, lamb chops, and the like — showed no such effect, Micha says. The results appear in the May 17 issue of the journal Circulation.

She sees her meta-analysis as more of a starting place than a conclusion; it’s another hint that there’s more to determining a food’s potential harm to the heart than just measuring its fat and cholesterol content. But she can’t tell from her work whether the problem is the oodles of extra salt in processed meat, the nitrates and other preservatives, the way it’s cooked, or some other factor entirely.

Michael Thun, an epidemiologist at the American Cancer Society, says that at this point Micha’s finding is interesting, but shouldn’t yet be the basis for any shift in dietary guidelines.

"We’ve been telling people for years to limit their consumption of all red meat, including processed meat and that still holds," Thun says. There’s plenty of solid evidence, he points out, that a diet heavy in any kind of red meat —fresh as well as processed — raises the risk of colon cancer, and maybe other cancers, too.

I find it easy to give up sausage and hot dogs, but bacon will be a bit of a struggle.

Written by LeisureGuy

23 May 2010 at 8:56 am

Posted in Daily life, Food, Health, Science

Quick punishment for nun, slow punishment for priests

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Barbara Hagerty for NPR:

Last November, a 27-year-old woman was admitted to St. Joseph’s Hospital and Medical Center in Phoenix. She was 11 weeks pregnant with her fifth child, and she was gravely ill. According to a hospital document, she had “right heart failure,” and her doctors told her that if she continued with the pregnancy, her risk of mortality was “close to 100 percent.”

The patient, who was too ill to be moved to the operating room much less another hospital, agreed to an abortion. But there was a complication: She was at a Catholic hospital.

“They were in quite a dilemma,” says Lisa Sowle Cahill, who teaches Catholic theology at Boston College. “There was no good way out of it. The official church position would mandate that the correct solution would be to let both the mother and the child die. I think in the practical situation that would be a very hard choice to make.”

But the hospital felt it could proceed because of an exception — called Directive 47 in the U.S. Catholic Church’s ethical guidelines for health care providers — that allows, in some circumstance, procedures that could kill the fetus to save the mother. Sister Margaret McBride, who was an administrator at the hospital as well as its liaison to the diocese, gave her approval.

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Written by LeisureGuy

23 May 2010 at 7:08 am

Megs: “Good morning, sun”

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Taken a few minutes ago. Is she sticking out her tongue?

Written by LeisureGuy

23 May 2010 at 6:54 am

Posted in Cats, Daily life, Megs


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