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Archive for March, 2010

Class Action

Q: How many lawyer jokes are there?

A: Three.  The rest are true stories.

It used to be said that the best thing that could happen to an attorney in a one-lawyer village is for another lawyer to move into town.  Presumably, these two could then proceed to find clients that could be induced to sue each other, leading to a long happy but incestuous career.

We live in modern times, so having a second lawyer in town is no longer necessary.  All it takes is a computer, some creativity, a little old-fashioned greed, a litigious client and a DSL line.  Which brings us to today’s amusement, a little paper insert in my recent monthly billing from my DSL provider.

You are included in a Class Action Settlement Involving Your DSL Service

Of course, the minute you see that sort of notice, a variety of feelings rush through your head.  There is the greed aspect, the possibility of fabulous riches.  There is the experience aspect, which leads you to remember that the fabulous riches will most likely accrue only to the attorneys in this case.  There is the humor aspect, leading to the aforementioned joke about lawyers.  There is nostalgia, fond memories of class actions that I have been “involved” with over the years.  Ah, the hazy fond memories of class actions past.  Who could forget:

  • The Airline Ticket Price Fixing Class Action suit.  This one came from Atlanta, right here in river city.  This was my first class action suit, and you can never really forget your first one.  After a lot of paperwork and research, all I got was a bunch of ticket vouchers.  As it turned out, it was cheaper to just buy an airline ticket than try to claim one of those cheesy vouchers, but I’m sure that the lawyers made money on the deal.
  • The Computer Monitor Size Class Action suit.  Size is such a male thing.
  • The Apple Helpline Class Action suit.  Actually, when trying to find this little suit  by using Google, the search terms turned up dozens of different class action suits against Apple.  Flies are drawn to honey…..

But enough about nostalgia, we don’t have time to enumerate all of the class action suits in our great Republic.  Let’s get back to the facts of the DSL Class Action suit.  There’s even a website that includes a Spanish language version, just to make sure that all damaged customers can enjoy the fruits of the suit.

There’s a ritual, kabuki-like feeling to these things.  Names have been deleted to protect the guilty.  First, the offense:

****** DSL customers have sued alleging that ****** breached its contracts with and defrauded some of its customers by limiting the maximum data speed that some of its customers could obtain at a rate below the maximum rate for the plan the customer purchased. The lawsuit also alleges that ****** breached its contracts with and defrauded some of its customers by delivering speeds lower than the minimum promised under the customer’s plan, or otherwise disappointed its customers expectations regarding the speed of the DSL service.

Shocking, shocking.  Something must be done!  But wait, I’m innocent!:

***** strongly denies the allegations, but has agreed to settle to avoid the burden and cost of further litigation.

And, the pitch:

You are a Settlement Class Member if you purchased DSL service from ***** in the U.S. after March 31, 1994.

But first, some paperwork. Which, of course, is the kicker.  The website has the full details of this vital case, but your eye is naturally drawn to a little notice on the paper insert:

However, *****’s records do not show that your DSL Service was affected.  Regardless, if you believe that your DSL Service has not performed at satisfactory speeds, you may submit a Claim Form, and you may be entitled to a one time payment of…….

Wait, here it comes:

$2.00

So, there you have it.  For the time necessary to complete an online Class Action form, your time is worth $2.00.  I suppose that I could rail on about this for a while longer, but why?  These days, everybody is outraged and offended; that’s so boring.  Let us consider history, a long lost practice.

Those who cannot remember the past are condemned to repeat it.

[Life of Reason, George Santayana]

Just take a look at the electric powered streetcar.  At the turn of the 1900’s, electric traction was a powerful social and economic force.  An outgrowth of the horse-drawn car, and quaint by today’s standards, every town of any consequence had a car line, and was connected to other significant towns by the electric interurban.    Towns like Redlands, California were created by real estate developers in conjunction with the Pacific Electric, allowing people to work in urban Los Angeles and go home to a house in the orange groves.

The traction companies were a powerful force in that era.  And, like our modern corporations, the traction companies had their share of financial failure and scandal, including a company official found guilty in the public press but later found innocent in a court of law.  Consider Sam Insull.  The electric traction companies had plenty of money and thus became a target of interest by those who wanted more money.

Consider the words of the late Frank Rowsome, in his wonderful, witty book, Trolley Car Treasury [McGraw-Hill Bonanza Books, 1956].  This delightful book details an era of electric powered streetcars and interurbans of the late 19th Century.

On New York’s Lower East Side some accidents developed into stylized rituals, like the mating of trumpeter swans.  A trolley would be moving along congested and turbulent Delancey Street when a pushcart would somehow carom off its side or rear, dumping its contents on the street.  Instantly loud caterwauls would arise and hundreds of people gather to curse the rich and callous traction company.  In court later so many witnesses for the plaintiff would appear, all voluble and eager to testify about the trolley’s reckless speed, that company lawyers found it virtually impossible to win such suits.  To cut losses, it became the practice to settle such claims by equally stylized ritual; a reasonable number of pushcart accidents a month, properly executed and with witnesses marshaled, would be routinely settled in advance for a flat fee of twenty-five dollars.

Who says you can’t learn something from history?

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We are now being told to expect completed health care “reform” legislation to be on the President’s desk shortly. Of course, we were told that it would be on that desk in August. September. October, December…… The ruling party said that they simply wanted an “Up or Down” vote, but have been reduced to parliamentary machinations that would do Machiavelli proud.

You look back and simply wonder why they were in such a hurry, why they didn’t just gradually take it one step at a time.  The old story of throwing a frog into boiling water; they just simply jump out.  But when you put the frog in cold water and then slowly, ever so gradually raise the water temperature…….

If it Passes

I am sure that there are those naive enough to believe that once the bill has passed, everything will be cool.  To those that believe that, consider this.  The legislation will start a process of collecting taxes, but the benefits will not kick in for several years.  The idea is that there will be sufficient funding available when the time comes.  I don’t see it that way.  I see the politicians looking at that giant growing pot of honey and being unable to resist spending it, right now.  If you question that, consider the outcomes of the tobacco settlement.  Consider what happened in Georgia.  Consider that the Georgia General Assembly is again talking about raising taxes on tobacco, with the stated purpose being for “anti-smoking” programs but really being for general revenues.  The past is prologue.

If the current conception of health care “reform” passes, it will not be the end of things, it will be the beginning.  It sets the stage for a Constitutional crisis.  There are states that will sue, there are professional groups that will sue.  For example: “Tortious interference of a contractual relationship“; that is, the relationship between a patient and their doctor.

It will all culminate in the Supreme Court, and the current administration has little regard for the Supreme Court and the Constitution that it protects.  Just consider the current president’s behavior at the last pep rally called The State of the Union.

Consider that the People will be required to purchase health insurance or face fines.  There are those who point out that you have to have automobile insurance, but that predicates upon owning an automobile.  You can avoid that by not driving, but everybody has a body and thus will be required to purchase the requisite insurance or face a fine. There are sure to be those that calculate the differential between a fine and health insurance and figure that not paying for health insurance will work out in the short term.  Then, when they face a health problem, they will get in to the system, but the costs will be significantly higher because they are sick.  Just like right now.

For the moment, the insurance will be provided by the private carriers, but at some point, some bright politician will say “Wait.  People are being required to pay for insurance that is administered by for-profit firms and that’s not right.  We need a public insurance carrier that does not operate for profit.” And because government does not have a for-profit perspective, it does not have a cost control perspective, either.  So, the health care cost burden will grow, not fall as predicted.

The $40.00 Grocery Copay

I heard something interesting the other day.  I’d like to claim this as my idea, but it’s not.  I’m just a repeater, not a generator.  Consider what things would be like if there was a governmental support program for groceries.  Well, actually, there already is, which is why corn ethanol is now in our gasoline supply and corn sweetener in our food supply, but that’s another story.  No, consider the effects if when Congress passed Medicare that it also passed a bill that insured that Americans would be able to buy “affordable” groceries.

The argument would be that eating properly contributes to the overall health of the nation.  As it stands right now, eating in America is largely a free market enterprise, so you have huge grocery stores with a lot of different foods to choose from.  Yes, there are Ding Dongs and Ho-Ho’s, but there also is a substantial area filled with organic foods.  The vegetable section is right up front, because it is a profitable area.  You can choose to eat out at a variety of restaurants, or eat in.  If you are hungry and can’t afford to buy food, there is a food stamp program, and there are food banks.  In short, by and large, you are not going to go hungry in America unless you are on a diet.

If there was a governmental grocery co-pay program passed along with Medicare, for $40.00 per grocery store trip, you could have as much of what you want, from any category of food available in the store.  Consider what the outcome would be 50 years later.  Of course, there would be substantial political pressure from different groups trying to gain market traction.  The corn lobby would be there, of course, but also the popular expectations would be different.  There would be those who push for only organic food.  There would be the advocates pushing for no sugar.  The only sugar in the store would be from American growers and manufacturers.  There would be no sugar flavored sodas, and Twinkies would be in a museum someplace.

And, because there is not a profit motive present in this $40.00 copay grocery marketplace, costs would continue to rise without stopping.  Popular expectations for grocery choices would have become politicized.  And, based upon the horse trading now going on in Washington as we walk up the ramp to the stun line, some states would be getting better grocery stores than others.

It won’t happen tomorrow, or even next week, but at some point 17% of our economy will be government run, with all of the issues that that introduces into a successfully working market.

A Matter of Numbers

I’ve covered the vagueness of polling numbers already; it all depends upon who is doing the counting.  Interestingly, the health care market is about 17% of our economy, at least according to some sources.  It might be higher.  At the same time, Congress is enjoying a 17% approval rating, which actually might be up.  The 46 million of “uninsured” has winnowed down to 31 million.  Hmmh, let’s see here, where did the 15 million others go?  Maybe they were illegals…..

And, according to a recent Wall Street Journal / NBC poll, far more than half of the people polled were willing to toss out all of the Congress, including their own representative.  While the politicians may not think so, it is the considered opinion out here in the real world that the legislative process has broken.

If it Doesn’t Pass

If, for some reason or another, the health care “reform” does not pass this round, it is safe to say that the proponents will be back for another try, further contaminating the already toxic environment in the country.  Those who have supported “reform” will be angry.  There will be more anger, but the real damage has already been done.  Now it’s just a matter of damage control.

From the world’s perspective, the United States is weak and an unreliable ally.  Because of the intense navel gazing focus of the health care debate, our foreign policy relationships have decayed.  We are seen as weak, and no matter how the vote turns out, the current president is seen as weak and ineffective.   If he wins this one, there will be months if not years of reminders that at least 50% of the American people do not agree with him and do not approve of his actions.

If the bill passes, the current president will not put up a “Mission Accomplished” banner on the side of the White House and kick back and start dictating his memoirs.  No, there will be something else to push, some other agenda to further.  And the resulting rancor will further the global impression that we are a weak and unreliable ally.  And that will further create a dangerous and unstable world.  If the United States is not present, who will fill that vacuum?

And, in Related News

While the health care debate has sucked all of the oxygen out of the news cycle, a small blip has appeared on the radar.  It’s just a little thing; nothing more than a 3rd rate burglary.  “I’ll get back to you on that.”  Washington does it all the time, you know, it’s just the way that we do things.  Please see here.

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Bad Examples

It has been opined that even bad examples can be used to teach a lesson about good.  Back in the tie-dyed days of 1960’s Atlanta, in the early days of my misspent youth, the corner of Peachtree Street and 10th was the epicenter of youthful rebellion.  Due to a combination of cheap rent, suburban flight and the proximity of Piedmont Park, the youth of the region were drawn as if by magnet.  This meant that there were a lot of long haired, oh dare I use the word, hippies doing what hippies did best; that is, stand around and draw attention to themselves.  I suppose that you could thank Dr. Spock for that.

The neighborhood at that time was a melange of decaying structures, faded glory of a great past.  There was a 5 & Dime, probably S. H. Kress that was on its last legs, a vestige of a business model that once dominated retail.  There was an old Chinese restaurant, The House of Eng on one corner.  For several blocks along Peachtree, there were a variety of strip clubs and the like, including the Pussycat Club, which was at 6th Street.  There also was the late, great bar called the Stein Club, which hung on long after the hippies got a haircut and a job.

Now, of course, the corner is wreathed in respectability; even the Atlanta Federal Reserve Bank is there, but at that time, the area was an attractive nuisance.  Which is to say, that there was a lot of automobile traffic, slowly creeping along with the cars’ occupants staring out at the grand spectacle.  And because of all the traffic, there also was a police presence.

Although the area is in the Atlanta Police Department’s Zone 2, Tenth & Peachtree merited its own sub district.  Within the limits of the police spectrum, there were a variety of officers present to keep the peace.  Some of them had a sense of humor about the matter, which led to the offices of the sub-district being called The Pig Pen.  Of course, there also were a good number of police officers who took a strict view of law enforcement.  On more than one occasion, there were extra-legal criminal hearings conducted in the back alleys of the district.  Late at night, some officers accelerated the wheels of justice, streamlining the departure of individuals that they deemed to be unworthy of presence in the district.  On the whole, however, relations between the hippies and the cops were formal at best and adversarial at worst.

With the slow crawl of Peachtree traffic, there was opportunity for commerce, with a variety of street vendors hawking things that could be quickly sold to automobiles that had stopped at the traffic light.  This included a local newspaper called The Great Speckled Bird, which promoted local events for the community.  Another editorial outlet, if you can call it that, was a magazine called Dolls For Guys; use your imagination.

There was a street vendor, “Tom”, if I remember correctly, who was a neighborhood icon.  He had long hair, modestly shabby clothes and mottled skin; the perfect vendor for Dolls for Guys magazine.  At one point, one of the local cops engaged him in conversation.

“You know, Tom, that you are a very useful addition to this community.”

Taken aback at this comment, Tom expressed confusion.

The cop returned with : “No, I mean it.  You stand here every day and people from outside the city drive by and look.  They spot you and turn around to their kids in the back seat and say: “Look at that man.  If you don’t go to college, that’s how you’ll turn out.“”

So, even a bad example can be used to teach a lesson.  Likewise, it is often helpful for people to discover that they have a common enemy.  Once people discover that they have a common enemy, they can focus their energies on the enemy rather than feud amongst themselves.  And, of course, you can always drum up a common enemy with a helpful scapegoat.  In earlier days, you could use the petroleum industry executive when gas was selling for $4.00 a gallon.

Now, the health insurance carriers are enjoying unwarranted attention because it serves the purposes of the current president of the United States.  If he can distract the people from their concerns about his health care reform plans, then he stands a chance of passage.  Note that what started off as health care reform is now health insurance reform.

The health insurance carriers are an easy target, since they have to tell people that they will not cover certain procedures.  In specific, most policies don’t cover elective cosmetic surgery.  As a result, elective cosmetic surgery has not experienced the rapid cost increases which are common to the medical establishment.  Why?  Because people have to pay for it out of their own pockets, and as a result, shop around for the best combination of surgical skill and cost.

Would that the rest of the medical industry were that way, but unless you have a High-deductible Health Plan and the related Health Savings Account, you probably don’t care what a medical procedure costs as long as you only pay your piddly $20.00 co-pay.  Which serves to explain why the costs of insurance go up.

Without rate increases, the health insurance carriers could only briefly absorb the differential between what they collect from the insured and what they pay to the medical vendors.  It is, after all, a business that involves provable numbers, with countless actuaries behind the scenes to keep things accurate.  It is, after all, an industry subject to the regulatory attention of each state in our great Republic.

In other words, if the people had their way, the health insurance companies would cover everything and charge nothing.  Which is pretty much what the current administration is advocating.

It’s always disconcerting when the politicians start high-minded talking.  They’ll “fight” for your interest, along with thousands of other active words that their political consultants came up with.  But in the end they simply seek to serve themselves.  Calling insurance company executives evil is not even high-minded speech, this is just down and dirty demonizing of people. And it is convenient.

The insurance executives are members of the business community, and if what they are doing is illegal, they would be in jail.  These are people with children, parents, friends and neighbors.  These are human beings and fellow citizens of our country.

No, that does not matter any more.  All that matters is your political goals.  We’re not talking about Al Capone here, but it’s still the Chicago Way.

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Digital Maoism

The impetus for this posting comes from a Gordon Crovitz column in the Wall Street Journal, “You Can’t Judge a Book by Its Author“.  The gist of this article is:

Last week one of the large textbook publishers, Macmillan, announced new software to let college instructors rewrite textbooks by substituting new material for what the author wrote. This will allow options such as deleting paragraphs or editing down to the level of individual sentences. The software can bring to print and e-textbooks what’s called a “mashup” in other forms like music and videos……

In other words, if you don’t like what a book says, change it to say what you want it to say.  Well, that’s not the intention of the publisher, but that certainly seems to be the net effect of Macmillan’s plans.  A “mashup” is a “…. a web page or application that uses or combines data or functionality from two or many more external sources to create a new service….”

In a way, many things that we do are mashups; we selectively choose the words of others to present our ideas.  I’m doing it right now, but I also assume that you have the intellectual wit to know more than what I am presenting here.  And that you have the intellectual background to compare my ideas with yours and make a decision as to whether or not I’m talking like an idiot. 

The digital mashup is part of a larger notion, that of collaborative work.  Wikipedia is an example of such work.  I use Wikipedia links frequently to provide background for concepts and thoughts.  This allows you to explore something which you are not familiar with.  Wikipedia does have some flaws, most notably that it can be wildly uneven.

I’ve contributed to Wikipedia myself, in areas such as Rokal trains, Dawson, New Mexico and other areas with which I am quite familiar.  Presumably, other areas are covered equally as well by those who have good knowledge of a subject.  But collaborative works such as Wikipedia also have the weakness of political infighting, digital vandalism and just plain error.  It can also be remarkably trivial.

Consider that there was considerable controversy about a Wikipedia article which detailed the comb over.  Or, what we enthusiasts of the technique refer to as “strategic combing“.   This item proved to be a hot bed of semi-intellectual back & forth, with at least three groups fighting over the “facts”.  One set of entries contained a photograph of politician Carl Levin, an enthusiastic supporter of this technique.  Never mind that Western Civilization was circling the drain, this was a matter of great import.

And, such a controversy points to the fact that the trivialization of information undermines the value of what we as a society “know”.  As more and more “information” gets passed about, it also becomes more difficult to differentiate between trivia and important facts.  Familiarity breeds contempt; or, in this case, you just can’t spot an important idea because of the flurry of useless information.  This is not to say that there should be less information, it is just to recognize that we are being overwhelmed with data and it requires even better intellectual skills to sort things out.

Of course, this ability is a learned skill, and I leave it to you to decide if our children are being given the training for this challenge.  Your response likely depends upon how confident you feel about the educational industry of our great republic.

And, textbook mashups are predicated on the notion that the individual reader is able to  assess the validity of a fact stated in such a document.  Yet, the whole point of textbooks is that the reader does not know and is reading the book to know.  Traditionally, a text book represented the work of a serious scholar or scholars devoted to a specific subject.

Thomas Bailey’s The American Pageant, comes to mind since it was the book that I studied in high school about American history.  Of course, the book took a point of view, that of its author, but Bailey was, and still is, an interesting read.  Now, of course,  a Google search for “American Pageant” is as likely to bring up material on women in swimsuits as it is a serious study of the history of our great Republic.

Likewise, other books have fallen by the wayside.  Consider the three part “The Rise and Development of Western Civilization” by Stipp, Hollister and Dirrim.  Stipp taught Western Civ at the college that I attended, but it appears that his thorough study of the subject is likely to be out of favor since it is probably too white, too male and “not inclusive”.  Which is to say, that it was written in the 1950’s.  I don’t know that for a fact, by the way; just call it an educated guess.

Now, of course, having such a problem textbook can be easily remedied by just culling out all the too white and too male stuff and putting in your own ideas.  Nice in one way, but kind of tough on those who spent their lives studying a subject and trying to bring coherence out of the confusion.  It is also reasonable to question the accuracy of the source material.

The term Digital Maoism first popped up on the collective radar in 2006, with an op-ed column in the New York Times by Steven Johnson commenting on the thoughts of Jaron Lanier.  In part: “Wikipedia may be not too far from the historical reality of Maoism itself: a system propagandized with the language of collectivism that was, in practice, actually run by a small power elite.

You don’t hear the term Maoism very often, and those that say it are often aging hippies and garden variety radicals looking back with fond memories of their past.  Likewise, you don’t hear that sort of stuff very much from the Chinese themselves, who largely seem eager to get those memories behind them.

And what memories they are.  Who can forget the disastrous Great Leap Forward?  The little Red Book?  I even have a copy; alas, it is not a signed edition.

Especially when talking about Maoism, it’s hard to forget the Cultural Revolution.  The Red Guards?  Who could forget that memorable phrase “Completely destroy the old world!  We shall be the master of the new world.”?  Children renouncing their parents.  Books being burned.  Religious icons being destroyed.  All for the sake of the “revolution”.

Humiliate Your Elders Day in China

Of course, things have changed.  Back then, Red China (as it was called by the west), was an impenetrable mystery.  A billion people cut off from the rest of the world.  It would be Richard Nixon who would be the first westerner of consequence to visit the country in the better part of a century.   Back then, China was an elusive mystery; these days, you can’t go three feet without running into something Chinese.

So, Lanier’s choice of words for this cultural phenomenon are harsh ones, but not totally out of context.  While you and I may remember Mao, and Chou En-Lai, Madam Mao and the Gang of Four, the kids today do not.  Not only do they not remember, they do not care.  And, they probably have not heard of them in school either.  In short, they are destined to repeat the mistakes of the past.

Wikipedia is taking the hits here, but the mentality it represents is far larger.  It calls into the question the notion of being an individual in our modern society.  Certainly from health care “reform” to free speech on college campuses, to a variety of other subjects, individualism has fallen out of favor in more than a few districts.  Yet, it is individual expression that has produced so many cultural, artistic and financial assets for our society.

In the end, we can only hope that today’s fractious behavior is yet another example of the constant dynamic of our society.  That there is a give and take action which is, hopefully, constantly improving our culture.  It makes us better for it.  For when this dynamic action ceases, out culture will slowly fade.

How will Stipp’s “The Rise and Development of Western Civilization” end?  “Denounce your parents”, or “I have a better idea”?

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The health care “reform” issue won’t die.  No matter that most people are opposed to what is being proposed.  No matter that what is being proposed costs too much.  No matter that what is being proposed will result in massive governmental intrusion into our daily lives.  Regardless of these facts, the current administration and the Democratic leadership is determined to, as they say in the right side of the media, ram this thing down our throats.  I leave it to you to figure out why this act is so important to the Democrats.

As we approach the “nuclear option”, the current president is: “calling for an “up or down vote” within weeks under rules denying Republicans the ability to kill the bill with mere talk”.  Like with so much else, the Democrats are forgetting history.

What we have right now is a “gentleman’s filibuster“.  That is, under the current rules of the Senate, whichever party is conducting the filibuster gets to run their mouths until late afternoon, when everybody clocks out and goes home.  Just like Wile E. Coyote and Sam the Sheepdog:

The next morning rolls around, everybody clocks back in and the “filibuster” resumes.  Everything is very easy, and nobody is greatly inconvenienced.  Take a look back at the notion of a traditional filibuster.  And, take a look at the Frank Capra movie, Mr. Smith Goes to Washington.

Mr. Smith Filibusters Washington

In a classic filibuster, the Senator takes the floor and starts talking.  The Senator reads from the dictionary, they read their grocery list, they read whatever material that they can find.  And no matter what, they do not yield the floor to another Senator.  The process drags on to the point where the Senatorial staff bring in mattresses and sheets for the Senators to sleep on the floor.  They actually did things this way until convenience won out over principal.

It’s time to take a look at the movies again.  Because whatever the Democrats may think, there is always the option of returning to a traditional filibuster.  We’ve already had a taste of this in recent days.  Consider Senator Jim Bunning.

[Since I wrote this, an interesting article about the “gentleman’s filibuster” turned up.  Note that it was written in 2003, and concerned Bush judicial appointments.  Regardless, although the accusing parties have changed, the circumstances and issues have not.  Please see herero’c]

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