A Modest Solution for Handling Multi-Format Legal Briefs

After reading Daniel Sockwell’s article about writing legal briefs that you expect a judge to read on an iPad, Scott Greenfield is a little bummed out over the suggestion to eliminate footnotes:

Initially, Sockwell’s point about eliminating footnotes is a critical one, not just because they’re hard to read on a tablet but because that means footnotes won’t be there to be used. I love footnotes in briefs.  They are the perfect tool to make mini-arguments, small off-shoots of main points that may not merit a point heading of their own but carry weight in the consideration of the main point.

Scott also brings up an important practical point:

There is one problem arising from the mixed brief submission, where a court requires paper briefs as well as digital briefs.  The two can’t be different, and yet the two will be read in very different ways that require them to be different. Sockwell makes the point that an advocate needs to know how a particular judge reads a brief, and tailor a brief to her ways.  That may be fine when the brief goes to a trial judge, but won’t necessarily help when it goes to an appellate panel. You can’t please them all.

I have good news for Scott: Technology has the solution!

If courts insist on only one version of the document, but you want it readable in two different formats, the solution is an intermediate electronic markup language which specifies content rather than format. You’ll submit this intermediate document to the court clerk, who will use it to prepare the judge’s reading copy in whatever form the judge prefers. For example, Scott could create his mini-argument with the appropriate markup, submit his brief to the clerk, and the clerk’s computer could render his mini-argument as a footnote on the printed copy and on the iPad perhaps it could generate a nice fly-out sidebar with an elegant easing algorithm.

How do we know that a content-oriented intermediate markup language is the best solution? Simple. We know it will work because software engineers have already implemented dozens, if not hundreds, of content-oriented intermediate markup languages, such as RUNOFF, troff, Tex, SGML, HTML, BBcode, Markdown, MediaWiki, PmWiki, AsciiDoc, Mobipocket, EPUB, OpenXPS, and PDF. With so many successes already, how can one more possibly fail?

I suspect that tech-savy clerks at several of the more innovative courts will lead the way by specifying their own preferred content-oriented intermediate markup languages, probably using a variant of an existing one with a few court-specific extensions. Once that happens, NIST should react with their customary efficiency and issue a strawman process proposal for establishing a steering committee to develop a national standard for a legal brief submission markup language.

In less than half a decade this should result in an initial draft proposal, after which court systems will begin the process of retiring their prior legacy brief submission formats, except of course for those court systems that want to wait for the version 2.0 draft to stabilize because it adds some exciting new features that didn’t make it into the 1.0 version, and because it will clear up some ambiguities and completely replace the system for handling string citations with one that’s more comprehensive.

Don’t worry if all this sounds confusing, because legal software vendors will be happy to provide a markup translation solutions that will convert between many of the most widely-adopted brief-submission content-oriented intermediate markup languages. Most lawyers shouldn’t need to purchase more than two or three different programs to cover all the jurisdictions they practice in, although many larger firms are expected to prefer cloud-based subscription solutions.

Welcome to the digital revolution! The future is going to be awesome!

Obamacare Meets Basic Economics

I recently received an email pitch for a Change.org petition:

My name is “Sue,” and I work at Staples. I can’t tell you my full name because I’m afraid I’ll lose my job for what I’m about to tell you: Staples recently decided to cut part-time employees’ hours just so they won’t have to provide health care benefits under Obamacare.

Staples is taking advantage of a loophole in the health care law that says employers don’t have to provide coverage for employees who work less than 30 hours a week. Staples also told managers to hire more part time workers if they need people to cover the schedule.

[...]

I’ve worked as an Easy-Tech Representative for 9 years now, selling thousands of computers, protection plans, and services. I typically work 30-35 hours in a week, so when I was told that my hours would be cut, I was heartbroken. I recently got married and we have a baby on the way — 25 hours a week is not enough to make ends meet, let alone start a family.

I’m sorry to hear that Sue’s hours have been cut, especially with a child on the way, and especially if she’s a real person and not just some activist concocting a scenario to gain sympathy. She has my sympathies, and I hope she is successful at finding ways to improve her income. But I don’t much care for her letter.

It’s disingenuous to say “Staples is taking advantage of a loophole.” The cutoff for requiring coverage is not a loophole; it’s an intrinsic part of the design of the Affordable Care Act (ACA). The basic problem is that health insurance costs the same fixed amount of money per week regardless of how many hours you work.

For example, Glassdoor.com reports that Staples EasyTech employees like Sue earn as much as $14 per hour. If she worked a full 40-hour week, that would multiply out as a cost to Staples of $560 per week.

Assuming Sue started work at the age of 18, she’s about 27 years old right now. Making a few more guesses about her, I got a quote at ehealthinsurance.com for the cheapest coverage I could find, a Blue Cross Bronze PPO with a $6000 deductible for $122 dollars per month. If Staples paid for that coverage, it would work out to an extra $30.50 per week (using 4-week months to simplify the math). If she worked a full 40 hours per week, that would raise her hourly cost to Staples from $14 to $14.76, an increase of 76 cents an hour or about 5.5%. That’s fairly high for a non-merit raise these days, but it’s not too absurd, and it works out to a weekly cost for 40 hours of labor of about $590.50.

On the other hand, if Sue only worked 20 hours per week and the ACA still forced Staples to buy her health insurance, she would cost Staples $280/week in wages and $30.50 per week in insurance, for a total of $310.50, which works out to about $15.53/hr, equivalent to giving her an almost 11% raise. To get a full 40 hours worth of work done, Staples would also have to hire another 20-hour worker for another $310.50 a week, for a total cost of $621 (up from $560 for Sue without insurance).

Pushing the example to the limits of absurdity, consider what happens if Sue only works 1 hour a week. An entire week’s worth of health insurance would get charged to that hour, raising her effective wage to $44.50/hour, an almost 218% increase in costs. Getting 40 hours worth of work done with 40 employees working 1-hour each would cost a whopping $1780 per week. When you compare that to the $560 it costs to fill 40 hours without insurance, it’s clear that this would be unsustainable. No company could afford such a huge increase in labor costs. They’d have to lay people off or go out of business.

The point is that requiring an employer to provide health insurance is equivalent to giving that employee a raise, and since health insurance costs do not diminish with hours worked, the fewer hours an employee works, the greater the equivalent raise, and the greater the burden of providing health insurance, compared to hiring the same employee for the same amount of time without providing insurance.

So forcing a company to give health insurance to full-time 40 hour/week employees might be reasonable, but forcing them to give health insurance to 1 hour/week employees would be destructive. Consequently, if we’re designing a law requiring employers to provide health insurance, we have to pick a point somewhere in between 40 hours and 1 hour where we’ll stop requiring health insurance if we want to avoid causing too much unemployment.

(We probably also want to set the threshold fairly high to handle the situation of people with two jobs. There’s no need for someone receiving insurance from their 30-hour day job to also receive insurance from their 12-hour night job.)

In any case, for whatever reason, the folks designing the Affordable Care Act decided to put the cutoff at 30 hours per week. For my hypothetical Sue, this raises her employer’s cost by just over 1 dollar per hour, or 7.26%.

Apparently, Staples didn’t want to give Sue a other workers like her a raise that large, so they cut her hours to bring her under the cutoff for mandatory insurance.

Note that I chose the numbers for this estimate conservatively. For example, if I assumed Sue was 10 years older and earning minimum wage, the math would be even worse: Giving her coverage at 30 hours/week would increase costs by more than 16%, which would have an even more severe effect on Staples’ staffing decisions. Also, I’m neglecting taxes, unemployment, workers comp, and other payroll costs to keep the math simple, but the basic principle still applies.

By signing my petition, you’ll be amplifying the voices of thousands of Staples employees across the country who are afraid to speak out and can’t afford to have their hours cut. Click here to sign my petition demanding Staples follow the law and provide health care instead of cutting part-time employees’ hours.

Staples is following the law. The relevant provisions of the Affordable Care Act are usually described as forcing employers to provide health insurance to employees working 30 or more hours, but there’s another equally valid way to describe it, and that’s to say that it prevents employers from letting uninsured employees work 30 or more hours per week. In other words, if you work more than 30 hours per week, and your employer doesn’t give you health insurance, the ACA makes your job illegal. Employers may choose to fix this by giving you healthcare, but they can also choose to fix this by eliminating your job or reducing your hours.

This is a common feature of many similar laws that require one group of people to provide benefits to another group of people. For example, the accessibility rules for wheelchair users in the Americans with Disabilities Act (ADA) are usually described as requiring places of public accommodation to be wheelchair accessible, but those rules can equally be described as preventing places that aren’t wheelchair accessible from being open to the public. When the ADA was passed, some businesses complied with it by remodeling, but other businesses complied with it by going out of business.

In the simplest terms, the ACA divides all employees into two classes: (A) Those who work less than 30 hours a week, and (B) those who work 30 or more hours per week. Then the ACA adds an insurance requirement for class B which makes employees in class B more expensive to hire. It’s a basic rule of economics that when the price of something goes up, the quantity purchased goes down, so it’s no surprise that making it more expensive to hire people for 30 or more hours per week will cause a reduction in the number of people who get hired for 30 or more hours per week.

This was a completely predictable consequence of the Affordable Care Act that critics (and honest proponents) have been predicting ever since the law was proposed.

Another way to look at it is that when the ACA forced Staples to provide health insurance to its employees, management had to figure out where to get the money to pay the premiums. They had only a few possible sources — stockholders, customers, suppliers, and other employees — and each of those groups is going to resist taking the loss, with various levels of success. Analyzing where exactly the burden will rest is a difficult economic problem, but clearly Staples has decided that at least some of the money used to provide health insurance to Sue’s coworkers will come from Sue.

YPO-SHOT

I was driving home from a trip to the grocery store this morning when I spotted my local Chicago Police beat car ahead of me, and I noticed he had a curious bumper sticker, on which I could make out the letters “YPOSHOT”. When I got a little closer, I could see a message about a $10,000 reward for information about anyone shooting at a Chicago police officer, which you could earn by calling in a tip to 1-888-YPO-SHOT (as in “Why Police Officer shot”).

That doesn’t seem like nearly enough. When someone killed Tupelo, Mississippi, police Corporal Kevin Stauffer and injured another officer last month after they responded to a bank robbery, the FBI offered a $50,000 reward, which was matched by the bank. With other donors, the reward grew to $162,500.

Earlier last year, after someone shot and killed a Rite-Aid store manager, the Philadelphia Citizen’s Crime Commission and Rite-Aid offered $20,000. That reminded me of a story I only vaguely remember from around 1970 about a city in which several pharmacists had been killed during robberies. The pharmacists’ association responded by offering a standing $15,000 reward for the killing or wounding of any pharmacist during a robbery. That was so much money at the time (equal to about $90,000 today) that people would turn in their own family members to get it. Very few criminals were willing to risk robbing pharmacies after that.

Then again, I suppose that offering a large reward could create its own problems. After all, in order to collect the $100,000 reward for information about the shooting of a cop, someone has to shoot a cop. I imagine there are people out there who might try to work both sides of that deal by shooting a cop and then planting the gun on someone else so they could turn them in for the reward.

In any case, 1-888-YPO-SHOT was created by Bill Kugelman, whose son was an officer killed in the line of duty, along with the Chicago Police Memorial Foundation. They apparently got the idea from the NYPD’s 1-800-COPSHOT program.

Scattershot 2014-01-24

Random shots around the web…

After reading the harsh conclusion Scott Greenfield reaches in his response to the Pinal County Sheriff’s department’s shooting of Manuel Longoria as he was surrendering with his hands in the air, I had this running through my head:

When they kick out your front door
How you gonna come?
With your hands on your head
Or on the trigger of your gun

When the law break in
How you gonna go?
Shot down on the pavement
Or waiting in death row

– The Clash “Guns of Brixton”

Along the same lines, Ex-Cop Law Student has started an interesting series of posts about the First Rule of Policing (“Get home safe”) and the harm that it does. Part 1 and Part 2 are up and worth reading.

Mark Bennett isn’t a marketing guru, but his years of participation in the blogosphere have given him some great insights for anyone using blogging or social media to establish a professional presence. He wrote it in response to a specific lawyer who made some specific mistakes, but it applies to almost everyone.

I work in a virtual office where everything we do is conference calls, and this is pretty accurate:

Rankin Bass’s version of The Thing:

A Challenge for Prosecutors

Over at Crime and Consequences, Kent Scheidegger writes about one of the philosophical problems with the exclusionary rule:

For many years, the U.S. Supreme Court has been pruning back one of the most repugnant notions of criminal procedure — the idea that a clearly guilty criminal can suppress rock-solid reliable evidence of his crime on the basis of how it was obtained.  If someone violated a law in the process of obtaining that evidence, that person should be prosecuted or sued for the violation, but it is utterly irrelevant to the justice of the case at hand — whether the defendant did or did not commit the crime of which he is accused.

As it happens, I agree with Kent Scheidegger on the basic issue. I don’t find the exclusionary rule to be repugnant, as he does, but it is a messy half-assed attempt by the courts to remedy a situation that is beyond their power to fix correctly, and we would be better off without it.

As Kent explains, the proper approach when cops break the law to obtain evidence is to punish the cops rather than letting the guilty go free. If a cop enters a house illegally and discovers evidence of a crime, the best solution is not to let the offender go free, but to send both the cop and the offender to jail for their respective crimes.

Unfortunately, this fine solution is beyond the power of the courts and the legislature — neither judges nor lawmakers can press charges for a crime. Only prosecutors can do that. Therefore, my dear prosecutorial readers, you’re going to have to make the first move: Start indicting police officers when they break the law. I’ll bet you’ll only have to imprison a few thousand of them before the Supreme court changes its mind and rules that the exclusionary rule is no longer necessary.

In order to encourage prosecutors to follow this path, I hereby invite the forward-thinking Kent to share his stories of all the cops he prosecuted for breaking the law while gathering evidence…Oh, wait, Kent isn’t the C&C blogger that was a prosecutor. That was Bill Otis

Well, let me just throw it open to any prosecutor who agrees with Kent’s view of the exclusionary rule: We want to hear your story. Inspire other prosecutors with your tale of prosecuting lawbreaking cops — the trespassing charges for entering a home illegally, the theft charges for confiscating cellphones, the false imprisonment charges for detaining people without probable cause. I’m sure there are lots of these stories out there. Now’s your chance to be an inspiration to others to make a real change in the world. Tell us your stories. Just leave a description of the indictment in the comments, or drop a link to your office’s press release.

I’ll be waiting. But I won’t be holding my breath.

Why I Don’t Debate Evolution

My sometimes co-blogger Ken and I often discuss the whole evolution-v.s.-creationism issue, and I’ve tried a few times to explain to him why I don’t write about it much here. I occasionally discuss or speculate about some basic evolutionary science, and I’ve slammed some really idiotic creationist nonsense, but I just don’t want to get into a debate about it.

I got to thinking about it again when I heard that Bill Nye (“The Science Guy”) was apparently going to debate Ken Ham, who is the founder of something called the Creation Museum (now with Zip Lines!).

This strikes me as a bad idea. Bill Nye is famous for explaining science, but not for debating it, and debating evolution v.s. creation (or intelligent design) is hard.

To give you an idea why, let’s start with a simple challenge that might be offered by an opponent of evolution: The second law of thermodynamics says that entropy must always increase, that is, things become disordered. Yet evolution implies an increases in order as things evolve into more complex forms. Therefore evolution would violate the second law of thermodynamics.

This is a simple misunderstanding of the basic science. The second law of thermodynamics applies only to closed systems, and the Earth is not a closed system because it receives energy from the Sun. That energy powers the biological processes of evolution. Considering the combined system of the Sun and Earth, entropy still increases because the decrease in entropy implied by evolutionary processes on Earth is more than made up for by the increasing entropy in the furiously churning heart of the Sun.

As creation v.s. evolution questions go, that was a fairly easy one for me to answer. It doesn’t really even require any knowledge of evolution, just a basic understanding of thermodynamics.

To handle more difficult challenges, some understanding of evolution is necessary. My own knowledge is strictly amateur level, but I think I can respond to a slightly harder challenge, such as If species evolve to survive, how come we still kill cattle in slaughterhouses? Shouldn’t cattle have evolved to prevent us from doing that?

I can think of three answers to that question, depending on your point of view:

  1. Cattle are at an evolutionary dead end. Evolution happens through small changes. But can you imagine any property of cattle as a species — height, weight, speed, intelligence, digestion — where a small change would allow them to escape the ranch or the slaughterhouse? If not, then evolution won’t help them get away.
  2. It’s already happened. That is, the question is misleading because it focuses on a single species. But if you look at the larger Bovidae family, which contains cattle (Bos primigenius)Wikipedia tells us it includes 145 distinct species, including yak, several types of antelope and oryx, bison, anoa, several types of buffalo, zebu, nyalas, elands, many types of duiker and gazelle, a variety of goats, several types of reedbucks, impala, wildebeest, several hartebeest, and muskox. Humans may eat some of those creatures now and again, but how many of them have you seen at the butcher shop? Cattle are an unusual case in a part of the animal kingdom where most species have followed evolutionary paths that escaped humanity’s hunger.
  3. The cattle species is actually very successful. Cattle’s survival “strategy” is to make themselves valuable to humans. As individuals, they may die by the hundreds of millions, but as a species, they are thriving: By becoming a tasty food source, they’ve given humans an incentive to protect and nurture a worldwide herd of a billion cattle. Measured as a fraction of the mass of all living things on Earth, the cattle species has managed to garnered a larger portion of the organic matter of this planet than any other single land-dwelling species. (Humans are a close second.)

That was a lot more evolution-specific, and I had to look a few things up on the web to get the details about the Bovidae family and biomass proportions, but it’s still basic science. And while I find it a convincing response, I can’t be sure that it would convince anyone else.

Now lets move on to a harder challenge: If evolution does move in small steps, how could something as complex as an eye evolve? It seems to be a structure of irreducible complexity — until you’ve got the whole thing, you’ve got nothing useful — so what good would evolving 1% of an eye’s structure do for a species’ survival?

This is at the limits of my knowledge, and I only know the basic outline of an answer: To a blind organism swimming in the ocean, even a slight ability to sense light will give it useful information, such as how close it is to the surface. Then, once any sort of photosensitive patch has formed, any ability to detect the direction of incident light is an improvement, and one of the easiest way to increase directionality is to recess the photosensitive patch into the body a bit, so light has to strike it from within a narrow angle. The more the photosensitive patch recesses, the more directional it becomes, until it reaches the point of being a photosensitive pit with a tiny viewing hole. Then it works like a pinhole camera and images form on the photosensitive surface, so it becomes advantageous to evolve brain structures for interpreting those images — edge detection, motion detection, and so on.

And that’s about all I know. I can only describe the basic idea. To respond effectively in a debate, I’d have to be able to offer evidence that anything like this actually happens. It’s my understanding that you can find examples of all major stages of eye evolution in nature if you know where to look, but I haven’t got a clue.

I’ll bet that many biologists can’t give a high-quality answer this challenge either, unless they just happen to have researched eye formation. Creationists also assert that other things have irreducible complexity, such certain cellular internal structures and the mechanism by which blood clots. To survive in a debate, you’d have to have researched the answers ahead of time, which means knowing the creationist challenges ahead of time.

There are still harder kinds of challenges. They tend to sound something like this: If the theory of evolution is correct, how do you explain Professor Robert Schuster’s 1992 paper in which he reports finding Cathayornis yandica fossils in the sedimentary deposits of the Chusovaya River Basin at levels beneath where he found Castorocauda lutrasimilis?

First of all, you’d have to know that Cathayornis yandica is a Cretaceous bird and Castorocauda lutrasimilis is Jurassic mammal, which means you’d expect to find the Castorocauda fossils deposited in the older sedimentary layers beneath the Cathayornis fossils. Finding them higher up seems to imply a problem with our understanding of the fossil record or with the technology used to date fossils, possibly allowing for a younger earth in which all the supposedly ancient extinct species actually lived quite recently, justifying creationists’ depictions of dinosaurs and humans living together.

To respond to this, you’d have to know if Professor Schuster really exists, and if so, did he publish his findings in a peer-reviewed journal or is he some kind of crackpot? Then you’d want to know if his paper actually says what your debating opponent claims it says. And if so, does it mean what it seems to mean? Or would Professor Schuster be shocked to discover that anyone thought his paper disproved the theory of evolution? Is the explanation for the layer inversion actually a geological phenomenon that is a well-understood by anyone who studies the Chusovaya River zone? Could it be that scientists study this area precisely because the well-known inversion gives them easy access to older fossils without digging so much?

For the record, I completely made up this question, so no one could possibly answer it. But when you go up against a sophisticated creationist debater without anticipating his questions and researching your responses, every challenge is going to feel made-up.

Finally, there questions my mother would ask, such as How could the random changes of evolution result in human beings?

The basic answer is that they couldn’t and they don’t and that’s not how evolution works. It’s true that mutations can cause organisms to develop random traits that are different from the parent organism, but whether the organism passes that trait to its own offspring is dependent on whether the organism survives and reproduces. That too is a matter of some random chance, but what’s not random is the differential survival rates between organisms with and without the mutation.

It works a bit like the house odds in a casino. Games like roulette, craps, and keno are all games of random chance, which means individual players could randomly come out ahead or behind after a short playing session. But on average, over time, the house is guaranteed to make money. In the long run — and evolution is always about the long run — that house edge will always wear down the players’ bankrolls until the casino has all the money. There’s nothing random about that result.

Similarly, if a new trait improves the chance of an organism’s survival by even a small amount compared with other members of its species, then the number of organisms carrying that trait will increase as a percentage of the species in every generation until all organisms exhibit the trait.

(I spent a few minutes trying to simulate this, and if I did it right, then if one organism in a colony of a million develops a trait that improves its chance of survival into the next generation by 1%, then that trait will spread to the entire population in less than 3000 generations. That’s tens of thousands of years for a large mammal species, a few decades for houseflies, and about two months for a colony of E. Coli bacteria.)

The thing is, no matter how hard I tried to explain this, I could never find a way to convince my mother. She just couldn’t seem to wrap her mind around the concept. Maybe she was simply unwilling to accept evolution, or maybe I just never found the right way to explain it to her. I had answers that convinced me, but they didn’t convince an evolution skeptic.

This is why I don’t debate the theory of evolution here, and why I think it’s a bad mistake for Bill Nye to try to debate it at the Creation Museum. In order to debate the theory of evolution with a creationist like Ken Ham, it’s not good enough to just learn about the theory of evolution. You also have to learn answers to the kinds of questions creationists raise about evolution, such as my cattle example, or the more specific question about the evolution of the structures of the eye.

That stuff’s not actually so bad, especially if you’re fascinated by evolution, as I am, but then you also have to learn about all the papers and studies and conjectures that creationists have used to attack evolution over the years. For each one of those, you have to learn what creationists say about it, what it actually said, what it meant, whether it was legitimate research, and what legitimate evolutionary scientists say about the issue.

Finally, once you’ve learned about all these challenges you’re going to get from creationists, you have to figure out how to respond to them. That’s harder than it sounds because, as my last example illustrates, it’s not good enough that your responses convince you. A really good response has to convince your opponents, or at least it has to convince listeners who are skeptical about your position.

In other words, in order to debate the subject of evolution, it’s not enough to learn all about evolution. You also have to learn all about creationism, and how creationists think about evolution. You have to be familiar with things like Jonathan Wells’s anti-evolution Icons of Evolution and Alan Gishlick’s explanation of why it’s wrong. You have to absorb the creationists’ way of thinking about evolution in order to explain your point to them in a way they will understand.

And that’s just not something I’m willing to spend a lot of my time on. And unless Bill Nye has been secretly setting up Ken Ham for this debate for months, it’s not something he’s spent a lot of time on either. Which is why I expect it to go something like Greg Laden’s parody of a debate:

Scientist: “If there’s one thing you should take away from this discussion, it’s…

Denialist [interrupting]: Thing one, thing two, thing three, thing four, thing five.

Scientist: “Actually, that thing four you said, that’s not really true ..

Denialist [interrupting]: Thing six, thing seven, thing eight, thing nine, thing ten.

Scientist: We can’t be sure of everything but one thing we are pretty sure of is…

Denialist [interrupting]: I’m sure of thing eleven, thing twelve, thing thirteen thing fourteen.

Greg Laden also discusses some other reasons this debate is a bad idea. I don’t agree with everything he says, but like him, I don’t expect it to go well for the science guy.

We Talk to Cops All the Time…

Over at Popehat, Ken White has another of his posts explaining that the most important thing you can do when talking with cops is to stop:

One of the most consistent messages I offer here is about interactions with law enforcement, and can be expressed in two words — shut up — although “oh you dumb son of a bitch will you for the love of God shut up” might capture the flavor better.

Ken writes about this a lot, as do several other criminal defense bloggers. I’m pretty sure that one of the bylaws of the practical blawgosphere is that every criminal defense lawyer must eventually write a post about not talking to cops.

It seems like pretty good advice. As Mark Bennett says on his brilliant “Million Dollar Legal Advice” page:

If everyone followed this advice:

Many fewer people would be charged with crimes. They would, collectively, be saved millions of dollars in attorneys fees (not to mention lower taxes from needing fewer prosecutors and judges).

Of those charged with crimes, many fewer would be convicted. They would, collectively, be saved countless years in prison.

Of those who avoided prosecution or conviction, many would also avoid the death penalty. Their lives would be saved.

I’ve always had a small problem with this advice, however, because it seems a bit unrealistic. Unless you live the life of a mafia gangster, never talking to cops isn’t really something you can do. And in a routine encounter, refusing to talk seems like a good way to make the police take a lot more interest in you.

Ken responds to that problem:

People ask commonly ask if this advice might lead police to suspect them of wrongdoing, or if it might even lead to their detention or arrest. Yes, it might. Life carries difficult choices and risk assessments. One of those risk assessments is whether, in an interaction with police, it is more dangerous to talk, or more dangerous to shut up. My point, in advocating shutting up, is to suggest that people’s risk assessment is often misguided: distorted by the cultural message that cops are the thin blue line of heroes we should trust, colored by our misplaced faith in our ability to talk our way out of situations, and incorrectly premised on the belief that cops asking questions will react fairly or in good faith to the answers. People substantially underestimate the negative risks of interactions with law enforcement, and substantially overestimate the upside of such interactions.

That sounds reasonable, but I think Ken and the other lawyers are also suffering from some mis-estimations of their own, due to selection bias.  Their clients may have gotten themselves arrested by talking to cops, but people who talk to cops and don’t get arrested are not people they meet as clients. Their clients are a biased sample of all the people who talked to cops. From the lawyers’ point of view, nobody ever talks themselves out of trouble by talking to the cops, but the reality is that we do it all the time.

Many years ago, when I was in college, a cop pulled me over at night and came up and asked me if I owned the car I was driving. I explained that it was registered to my father. He asked me a few routine questions, which I answered. It turned out that another cop had seen someone steal a car and radioed a description to the cop who stopped me, but when they realized I wasn’t the guy, they let me go.

A few years later, I was leaving my girlfriend’s apartment at around 1am, and a patrol car pulled up and the officer started asking me who I was and what I was doing out at night. I explained about my girlfriend. He then asked me why I had so many keys on my belt, explaining that some of them looked like special keys that thieves used. (They were actually Medeco high-security keys, but I had the presence of mind not to demonstrate my knowledge of keys and locks to a cop who suspected me of being a thief.) I explained that I worked at a college maintaining equipment and I had to have access to a lot of rooms. I showed him my work ID, and he let me go.

A few years ago, I was walking in a nearby park with my camera and a cop pulled up to question me. He said somebody has claimed I was taking pictures of children. I could have refused to talk to him — taking pictures of other people’s children isn’t even a crime — but instead I answered a few questions and let him look at the pictures on my camera. I quickly got the sense that he was just going through the motions — he didn’t even ask for my name — and after a few more minutes he let me go.

I’ve had a few more routine encounters with the police — traffic stops, reporting crimes, as a witness to a hit-and-run — and they all ended well. Not a scratch on me. Not a night in jail. Maybe clamming up and not talking wouldn’t have done any harm either, but it feels like something that would have drawn more attention to me in what were otherwise routine encounters for the officers.

However, Ken goes on to raise a very interesting point:

My advice to shut up is colored, in part, by privilege. I was reminded of this yesterday when Los Angeles County Sheriff’s Deputies searched Justin Bieber’s house. I praised Bieber for shutting up and declining to talk to the cops, and joked that criminal defense attorneys could shame clients into better practices by asking why they aren’t smarter than Justin Bieber.But Justin Bieber and I — and many of my clients — share a crucial quality: we’re affluent and fortunate. This privilege makes us better able to endure the potential downside risks of shutting up. If we get arrested on a petty or bogus charge by a pissed-off cop, we can make bail. We won’t spend weeks or months in custody on that bogus charge because we can’t scrape together a few thousand dollars. Maybe we’ll spend the weekend in jail, because cops love to arrest you Friday afternoon, but we’ll get out in a few days at most, and in the meantime we won’t lose our jobs. Because we have families and support systems, if we do get thrown in jail on a bogus job by an angry cop, the Department of Child and Family Services won’t take away our children, plunging us into another broken system we have neither the money nor the knowledge to navigate. If the cops tow or impound our car, we can afford to pay the few hundred to few thousand dollars to get it out, and we won’t lose our jobs for lack of transportation. Even if we do lose our jobs because of a bogus and retaliatory arrest, we have savings, and families with savings, and we won’t swiftly lose our homes. If the police choose to retaliate against our silence with petty tickets and infractions and fines rather than arrest, we can fight them or absorb them.

That’s a privilege. Poor people don’t have it. Poor people live on the razor’s edge, and a bogus retaliatory arrest can destroy them. Retaliatory and capricious enforcement of petty crimes and infractions can destroy them financially. Police wield disproportionate power over them, and the criminal justice system and its agendas (like the War on Drugs) disproportionately impacts them. Police are more likely to use force against poor people and for the most part can do so without any significant risk of discipline.

[...]

I maintain my advice to shut up. But I acknowledge it’s easier and safer for me — and for most of the people reading this blog — than it is for the people who most frequently encounter the police.

Scott Greenfield’s thoughts on Ken’s post are thought-provoking as well:

The irony of Ken’s caution is that the folks most in need of this advice are the people most likely to be in the position of being the target of police scrutiny.  Thus, those with the least privilege in society are the most likely to be subject to police questioning and the risk of suffering arrest, or at least harassment, for their refusal to answer questions.

(I’m not sure if irony is the right word here. That sounds more like cause-and effect. But I digress.)

While the affluent are miserable at remaining silent, largely because they perceive no threat from the police by virtue of privilege, the poor, the black, the powerless, can’t remain silent because they are the subject of questions so often that the last thing they want is to force the hand of police to arrest them rather than push them around a bit before cutting them loose.

I’m somewhat privileged too. Not as much as Justin Bieber, but enough to realize that poor people, especially minorities, have a lot more police encounters than I do. And yet, as with me, the vast majority of those encounters end without an arrest. We all have a lot more encounters with police than our encounters with criminal defense lawyers would indicate.

Scott has said on numerous occasions that “Don’t talk to cops” is legally insufficient, but I’ve often thought that in its absolutism it’s not very practical either. It’s a bit like telling your children “Never talk to strangers.” That may seem like a rule that will keep your children safe, but then the next time you take them out with you to the mall or the movies or the zoo, what happens? You spend the whole day talking to strangers — clerks, guides, bus drivers, waiters, people you ask for directions. And then one day you drop your children off at day care or preschool where they’re surrounded by strangers, and then when you see them again you ask if they made any new friends. Whatever safety rules you’re trying to teach your children, “Never talk to strangers” isn’t really the rule you expect them to follow, because sometimes talking to strangers is what you have to do, and often it’s a good thing to do.

I think it’s almost as unrealistic to expect people to “Never talk to cops,” because many people can’t afford to pay the price of being uncooperative. (Heck, I’ve read accounts by criminal defense lawyers who answered questions from suspicious law enforcement officers when they didn’t have to — one because a delay would cause him to miss his plane, the other because he had his dog with him in the car and he was worried what would happen to the dog if he was arrested.) And then sometimes the duties of good citizenship demand cooperation with the police, such as when reporting crimes or providing information that assists an investigation.

Maybe we need a better rule.

Chicago PD, “Stepping Stone” — Not Loving Voight

When I saw that NBC was preparing to launch a weekly scripted drama called Chicago PD, I figured I’d have to blog about it. Aside from taking place in my home city, it also seemed from the advertising to be yet another show about a cop-who-breaks-all-the-rules-to-get-justice, and as a civil libertarian who agrees with pretty much everything Radley Balko has to say about the Warrior Cop problem, I’ve kind of soured on that character, so I figured it would give me something to talk about.

Chicago PD does have that character in the form of Sergeant Hank Voight, who robs and beats a guy in the opening scene and tortures him to get information about someone who’s selling a bad batch of drugs that’s killed a few people. I gather that Voight’s character was established in the Chicago Fire series as the worst kind of cop: Brutal, corrupt, and well-connected downtown, all of which might explain how, despite his crimes, he’s now in charge of a police intelligence unit working out of the 21st District station.

(Real-life Chicago has 22 police districts, numbered 1 through 25, skipping the 13th, 21st, and 23rd districts.)

In some ways, putting a corrupt thuggish cop in an intelligence unit is a great story idea. Intelligence units don’t do normal police work, so their activities aren’t easily tracked by CompStat (or whatever management tools the department uses), and they often work in secret, all of which means they have little oversight. (The LAPD Organized Crime Intelligence Division famously crashed and burned when Detective Mike Rothmiller wrote a book exposing mismanagement and shady activities.) Chicago cops are always complaining about connected guys who get away with all kinds of crap — often in special teams that are hard to monitor — so a connected douchebag in charge of an intelligence unit seems like a plausible villain.

Except I’m pretty sure the show’s producers don’t want us to think of him as a villain. I think he’s supposed to be “complicated.” He’s a tough guy doing a tough job the only way it can be done. He may torture a guy for information to save lives, but he’s a solid cop who will always have the back of the cops in his unit.

In real life, assholes like this aren’t that selective. They tend to be assholes to everybody. They are nightmares to work for because they know they control your paycheck and career, so they can treat you like crap. If Voight is beating drug informants for information now, then he was probably beating 15-year-old black kids for mouthing off when he was working patrol. (Also, Voight torturing informants has a certain sick resonance here in Chicago where Detective Jon Burge used to torture people in custody.) They only time guys like this are nice to people is when they need something, at which point they become your best friend in the world. That’s how guys like Voight get connections downtown.

The fictional version of this character usually isn’t as terrible as the real thing, and that tends to work well dramatically. Andy Sipowicz was one of the most beloved characters on television despite his rage, and it gets easier as the shows get less realistic: Bullies like Leroy Jethro Gibbs on NCIS come across as stern teachers, torturers like Jack Bauer on 24 are heroes because they’re doing it for God and country, and a pair of efficient assassins like Nikita Mears and Michael Bishop on Nikita evoke admiration and even sympathy. And wouldn’t you like to have a murderous vigilante billionaire like Oliver Queen from Arrow as your friend?

Anyway…

Once I get past the Voight character, Chicago PD is an OK show. Some of the clichés are a little thick — Voight turns out to have a softer side, his boss is a black guy who’s angry at him, a cop takes off his badge and gun before challenging a jerk to a fight, and there’s a car chase at the end — but it’s also full of action and a few surprises.

It’s also nice to see a bit of Chicago on the screen. They don’t show much of the famous stuff, but the houses look like Chicago houses and the alleys look like Chicago alleys — you wouldn’t think you could tell, but it feels a lot different than it would if they shot in Vancouver.

I’ll give it another shot.

Scattershot 2014-01-10

Random shots around the web:

  • Radley Balko now has a home at the Washington Post. Interestingly, he’s billed as an “Opinion Blogger” rather than an “Opinion Writer” like the columnists featured at the top of the Opinions page. (In fact, he doesn’t appear anywhere on that page as I write this.) Radley plays it like an old-school blogger too: He starts with an Introduction explaining his background and what he’ll be trying to do with the blog, and then a few hours later he follows up with a substantive post about the rollback of forfeiture reforms in Utah. And then later a piece about exposing corrupt prosecutors. And a list of links. You can find his bio page — and more importantly, a Radley-specific RSS link — here.
  • A Jesse Walker post about the old COINTELPRO scandal gives a hilarious example of the FBI’s technique for trying to disrupt dissident political organizations: Socialism is Gay.
  • I’m sure the folks at the U.S. Centers for Disease Control do lots of good work, but it’s hard to take them seriously when they fret that Americans drink excessively, given that they’ve defined excessively to include consuming more than 3 drinks for women or 4 for men on a single occasion or any drinking by anyone under the legal drinking age.
  • Spotted this a while ago and just kept thinking about it: With my limited legal knowledge, I can’t quite follow the main point nidefatt is making here about the Oregon Supreme Court’s ruling on implied consent in DUI investigations. His post did, however, contain the phrase “right to an administrative hearing.” I’m pretty sure that “right to an administrative hearing” is the “cheese food” of due process.

Plenty of Blame to Go Around for the National Debt

I spotted this awful meme image on Facebook, from the Being Liberal page:

Blame For the Debt

Aside from the poor grammar and gratuitous attention-getting reference to 9/11, its implications about the history of our national debt are just plain wrong.

On 9/11 we were attacked. Immediately after military expenditures doubled. Do you recall the Bush administration seeking added taxes or other revenue to pay for this spending?

No. Because they didn’t. They didn’t seek to pay for the invasion of Iraq, or Afghanistan, or Medicare Part D or anything else. In fact They CUT taxes. And now they blame Obama for their debt.

In some sense this is probably correct. The blurb doesn’t say who “they” are, but I imagine the reference is to Republicans and right-wing pundits, and I’m sure many of them are trying to blame Obama for the debt incurred during the Bush administration, but it’s not as if the debt didn’t get a heck of a lot bigger after Obama took office.

Here’s the available data since 1990:

Federal Debt With Slopes

The blue dots and line are the raw data. I added the other lines by hand to give a rough indication of the rate of increase of the debt under each of the last three presidential administrations. You can feel free to quibble with where I drew the lines, but even without them, it’s pretty clear that the Clinton years were great for debt hawks, with relatively little debt growth at all. (I think these are nominal figures, so that may just be inflation rather than real debt growth.)

Debt growth under the Bush administration was somewhat steeper, probably for all the reasons mentioned in the meme image. But then starting with the Obama era, the debt begins to climb even faster. (It starts to tail off toward the end, but note that those are based on estimated budget figures, not actual results.)

It looks even worse when you plot debt as a percentage of national income:

Federal Debt v.s. GDP

I didn’t draw any slope lines this time, but you can see how well-off we were in the 1990s as the debt actually stopped climbing and started to decline. The Bush era erased that decline, and the Obama era blew it out of the water. (Again, the decline at the end is based on estimates.)

Timing does not necessarily identify causation, of course. Just as Bush was not responsible for the dot-com crash and recession that he inherited from Clinton, Obama was not responsible for the bank panic and recession that he inherited from Bush. And it’s not clear to me that any president had much responsibility for the recessions that started under their terms. Taxation and spending — and for that matter, banking policy — are under the control of Congress rather than the President. And much of the skyrocketing debt from Obama’s first years in office was due to the massive stimulus package passed by both parties.

Whoever you choose to blame, the size of the debt is pretty disturbing.

(All data drawn from the White House Office of Management and Budget historic budget tables.)

The Opposite of Boiling Water

Here’s something to think about if you’re in Chicago like me, and you’re thinking of going outside:

Go to your kitchen and fill a pot with water. Put it on the stove and turn the burner up to high. Bring it to a boil. That water is now at about 212°F. Given that your internal body temperature is just under 99°F, the boiling water is about 113°F hotter than your body.

As I post this, the weather station at O’Hare airport is reporting a (non-windchill) air temperature of -14°F, which is about 113°F colder than your body. In other words, the difference in temperature between the outside air and your body is the same as the difference in temperature between your body and a pot of boiling water.

(For those of you of the metric persuasion, water boils at 100°C, normal body temperature is 37°C, and the outside air is at -26°C, for a difference of 63°C.)

So if you wouldn’t stick your hand into that pot of boiling water, you might want to think carefully before going outside today.

(Technically, of course, they’re not equivalent situations, because air has only about 1/4 the heat capacity of water and is about 800 times less dense, meaning that it won’t sap heat from your skin anywhere near as fast as boiling water will scald you. On the other hand, you’re probably going to be exposed to the cold air for a lot longer than you would be likely to touch boiling water, and with a 15 mph (24 km/h) wind, you could easily find yourself in the frostbite zone that will damage your skin in about 10 minutes. Also, every unheated object outside is also at -14°F, and touching some of them could freeze your skin as fast as boiling water would scald it — a metal post being the canonical example. Finally, don’t forget that cooling your skin will make it numb to pain, so you might not notice the damage until it’s too late.)

And if you do go out — like my crazy wife, who had the option to work from home today — be careful out there.

It’s Not Anti-Vax, It’s Anti-Force

Why are antivaccinationists so at home with Libertarianism?

That’s the question Orac asked last month at Respectful Insolence. It’s kind of an odd question, since the main piece of evidence he discusses is Ronald Bailey’s pro-vaccination article at Reason Magazine, one of the flagship publishers of libertarian thought. Here’s the main point of Bailey’s argument:

People who refuse vaccination for themselves and their children are free-riding off herd immunity. Anti-vaccination folks are taking advantage of the fact that most people around them have chosen the minimal risk of vaccination, thus acting as a firewall protecting them from disease. But if enough refuse, the firewall comes down and other people get hurt.

Oliver Wendell Holmes articulated a good libertarian principle when he said, “The right to swing my fist ends where the other man’s nose begins.” Holmes’ observation is particularly salient in the case of whooping cough shots.

To borrow Holmes’ metaphor, people who refuse vaccination are asserting that they have a right to “swing” their microbes at other people. There is no principled libertarian case for their free-riding refusal to take responsibility for their own microbes.

Orac’s evidence of libertarian anti-vax leanings is in the response at Police State USA, and a bunch of Facebook comments about Bailey’s article. Orac quotes a few of the dumber comments:

Explain how not getting a vaccination yourself puts someone else at risk. If you get sick and they are vaccinated then they won’t get sick because they a vaccinated against it right? Oh, vaccinations don’t actually protect against getting sick?!? Then why do we get them.

Herd Immunity is more Bullshit from Big Pharma with NO logic behind it!

That’s certainly uninformed anti-vaccination nonsense, but all it proves is that libertarianism is not totally free of anti-vax goofballs. Neither are the Democrats or Republicans. A few idiotic comments hardly make the case that libertarianism is a good home for anti-vaxers.

In fact, far from shunning vaccines, libertarians have complained that the government-controlled vaccine market often experiences shortages, a problem rarely seen with more commercial medications that trade in a freer market. And when Reason Magazine published their “45 Enemies of Freedom” edition, they picked anti-vax nutjob Jenny McCarthy as #28, saying that “hundreds of thousands of fearful parents have needlessly endangered the health and lives of their children.”

Orac also objects to this comment, without realizing it’s substantially different:

How about “I DON’T WANT TO!”? That’s about as libertarian as it gets. There is no such thing as a positive obligation in libertarian philosophy and that includes an obligation to be vaccinated.

From the libertarian viewpoint, there’s a world of difference between saying “X is a good thing” and saying “the government should force people to do X,” and that’s true whether X is getting vaccinated, wearing motorcycle helmets, or drinking smaller beverage portions. The government does not enforce its rules with a gentle hand, and even the most trivial infractions are ultimately enforced by men with guns who will drag you off in shackles, lock you in a cage, and take your stuff.

Ronald Bailey’s article is actually part of a Reason debate with Dr. Jeffrey Singer over vaccination policy. Neither debater questions the general efficacy of vaccines, both reject the autism danger, and both debaters think getting vaccinated is a good idea. Those are not the questions being debated. The libertarian issue in question is whether the government should force people to get vaccinated.

Questioning the appropriateness of forcing medical treatments on people against their consent is not some kind of crazy fringe concern. One of the cornerstones of medical ethics is that all treatments require the informed consent of the patient. If a patient refuses even lifesaving treatments, doctors will generally respect that decision.

There are exceptions, of course, but the issue is complex, confusing, and worthy of careful thought. In most cases it’s also highly controversial, such as the requirements in some states that women seeking abortions receive a medically unnecessary trans-vaginal ultrasound, which involves placing a probe into the woman’s vagina. There’s also a long history of school systems pressuring parents into putting their children on psychoactive drugs, ostensibly for the child’s benefit, but apparently also as a tool for classroom management.

I’ve written about doctors who perform invasive procedures on patients in the name of the war on drugs, and this country has a disgraceful history of involuntary sterilization of people with undesirable attributes, the Tuskegee syphilis experiments, and of course the Nazi atrocities that led to some firm rules about informed consent which have informed medical ethics all over the western world. Generally speaking, this is not good company to be in, and I think that before implementing plans to forcibly vaccinate people we should give careful consideration to alternatives such as education.

It’s one thing to believe — as Ronald Bailey and Orac both apparently do — that the utilitarian social benefits of vaccination outweigh the violation of self-ownership and personal dignity that forced vaccinations would necessarily entail. But it’s disingenuous to lump this libertarian objection in with the generic anti-vax crowd that denies the effectiveness and safety of vaccination.

Farewell Simon, We Hardly Knew You

Last spring, our cat Ripley passed away after a somewhat lengthy period of illness. It was a very sad time for us. My wife was especially heartbroken, as Ripley had been the first cat we adopted after a catless period that followed the death of her previous cat.

As is my way, I had put up a post about Ripley’s passing. Unbeknownst to me, someone over at the Opinionated Pussycat noticed it and posted a rather wonderful eulogy for Ripley which was picked up by The Cat Blogosphere, and a couple of dozen people stopped by in the comments to leave their condolences. It was very touching, and it helped.

I mention all this because we just found out that PDgirl‘s cat Simon — a foundling she’s only had since October — got so sick that she had to put him down.

SimonRIP

I can remember how excited she was when she got him, and I know how cats can break your heart. So if you get a chance, stop by her farewell post for Simon, and send some comfort her way. I have the feeling she’ll need it.

Update: This post is now in the 512th Carnival of the Cats at Opinionated Pussycat.

2013 In Review

WordPress likes to send out a year-end review to all their JetPack users. Most of it is routine statistics I can find anywhere, but a few items are amusing.

On my busiest day, my most popular post was “Yet Another Tale of the Awful, Awful People at ICE”. I think this line captures the essence of the post:

The sad thing is that if she had freaked out and, say, gouged out one of his eyeballs with a pen so she could make her escape, some prosecutor would have tried to make it seem like she was the bad guy.

On the other hand, the post with the most views all year was the perennial winner, “Fucking Sprint!!!” which continues to receive comments 8 years later, as does my 4th most popular post, “Sallie Mae is a Nightmare”. The 2nd most popular post was Never Get Busted Again, Volume 1: Traffic Stops, my review of Barry Cooper’s DVD, the 3rd most popular was “Yet Another Tale of the Awful, Awful People at ICE” again, and the 5th was my advice piece, “I’m Sorry, But I Simply Can’t”.

Then there are the top search terms:

  1. sw 500
  2. fuck sprint
  3. michelle malkin bikini
  4. michelle malkin nude
  5. sw500

“Fuck Sprint” is self explanatory — I’ve been at or near the top result for that for years — and the Michelle Malkin stuff is probably because of this, which has attracted some vitriolic comments from people who didn’t get the joke. I think the SW 500 stuff is probably because of this post by J-Dog.

In any case, here at Windypundit, 2013 was the year in which:

See you next year.

10 Books, More Or Less

There’s a meme of sorts going around, the rules to which are: “List 10 books that have stayed with you. Don’t take more than a few minutes; don’t think too hard. They don’t have to be great works, just the ones that have touched you.” The rules don’t specify fiction, but that’s how most people seem to interpret it.

Here’s my list:

  1. The Mote In God’s Eye. Larry Niven and Jerry Pournelle.
  2. Protector. Larry Niven.
  3. Ringworld. Larry Niven.
  4. Iceworld. Hal Clement.
  5. Salem’s Lot. Stephen King.
  6. The Forever War. Joe Haldeman.
  7. All My Sins Remembered. Joe Haldeman.
  8. Stand On Zanzibar/The Jagged Orbit. John Brunner.
  9. In the Ocean of Night/Across the Sea of Suns. Gregory Benford.
  10. Hyperion/The Fall of Hyperion/Endymion/The Rise of Endymion. Dan Simmons.
  11. Arc Light. Eric L. Harry.
  12. Revelation Space. Alastair Reynolds.
  13. A Fire Upon the Deep. Vernor Vinge.
  14. Pandora’s Star/Judas Unchained. Peter F. Hamilton.

That’s a lot more than 10, but I’d have had to “think too hard” to cut it down to just 10.

Why I Hope Peter Schiff Gets Painful Rectal Itching

So I got this press release thingy at my blog email address:

From: Peter Schiff <[email protected]>
To: Mark Draughn
Subject: Peter Schiff on the People Threatening To Murder Him

I have no idea who Peter Schiff is, but I was curious what he did that would lead to death threats, so I read on…

While most Americans spent the last few days peacefully celebrating the holidays with their families, hundreds if not thousands of people I’ve never met threatened me with bodily harm, attacked members of my family, issued death threats, described various diseases they hope I would fall victim to, and attacked me based on my Jewish religion.

“I really dislike you and am ashamed that you breath the same air as me,” came a Facebook note from one Karen Jordan.

Not a death threat.

After expressing his wish to see my wife and I murdered, Clayton Fletcher says, “Humanity would be much better off without these two gigantic wastes of human flesh and bone breathing in part of its air supply.”

Wanting to see you murdered or deploring your existence is not the same as threatening to murder you. Not a death threat.

“You are an evil person and you are part of what is wrong with this country,” Jeff Kernen of Eugene, Oreg., wrote me.

Not a death threat.

From Portland, Oreg., Lydia Andy Bendorf wrote, “I hope you get cancer, aids, gang green, the plauge, and suffer a slow miserable lonely fate [sic].”

Hoping you get sick and die doesn’t actually make you get sick and die, so not a death threat.

Allen Bates opined, “I hope you develop psoriasis on your [expletive].”

Not a death threat.

The blogger Truth Militia wrote to me, “[Expletive] you old [expletive], shut your mouth and die like a good gentile slave! These Jews make me so [explicative] sick.”

Telling you to “die” is not a threat to murder you any more than telling you to “get lost” is a threat to kidnap you. Not a death threat.

So how did I unleash such unhinged rage?

For the rest of this commentary, please click here.

Nope. No way. I have so far resisted clicking that link. I have no idea where it goes.

I have no idea who you are, Peter Schiff, but your message got my attention by saying you had been threatened with murder, and yet not one of the six examples you provided was an actual death threat. When you mislead people this much in your teaser email, I’m not going to waste my time following your stupid links.

(Actually, curiosity will probably get the better of me. With an email like that, who knows what entertaining stupidity I’ll find…maybe I’ll get another post out of it.)

Also, Peter, when I say I hope you get painful rectal itching, I’m not actually threatening to make your ass itch. In fact, I’m not planning to go anywhere near your ass. Just wanted to clear that up.

When Press Releases Rule the Media

I just noticed that Matt Haiduk posted a complaint a few weeks ago at his Kane County Criminal Lawyer blog about how often news stories about crime are based on nothing but press releases:

If you read a newspaper article and don’t know what’s going on, you’d think a newspaper reporter was sitting in a courtroom watching trials as they unfold. That certainly does happen a lot of the time. What happens more often is that a reporter sits in for parts of a trial. [...]

Anyhow, what seems to be happening more often (especially in Kane County) is that media and press releases are pushed out to media outlets, who then write stories based largely on the reports.  Of course, those reports are coming from the Kane County State’s Attorneys office, and the police departments.

Haiduk then goes on to give an example by quoting parallel bits of text from a press release from the Kane County prosecutor’s office and from an uncredited story in the Elgin Courier News. It’s not quite word for word, but it’s close.

There’s nothing unethical about working from a press release — it’s a statement from a source, just like any other — but when that’s the only source of information, it makes the story unbalanced. In this story, for example, there’s no evidence that anyone at the paper tried to get a statement from the defendant or her lawyer. Every attribution is to the prosecutor’s office. Furthermore, given the minimal rewrite of the press release, it’s pretty lazy. I imagine that’s why there’s no reporter’s name on it. And I guess the credit to “Submitted Reports” is the paper’s way of saying they used a press release.

This sort of thing has been going on for a long time, and it’s not just police and prosecutors or even just government. In newspaper terminology (somewhat obsoleted by the internet) the combined amount of print space in the whole paper that’s not advertising is called the “news hole.” And the news hole has to be filled every day.

(On the internet, it’s less about filling the hole and more about pushing out enough content to get enough people to click on the ads, so everyone gets a paycheck.)

Some days, there’s so much going on that the news hole isn’t large enough and stories get left out or saved for later. But on days when there’s not enough news, the editors have to look for filler, and press releases are an easy source of material. This happens a lot, especially in business reporting, which is why most major corporations issue press releases. A whole distribution network has sprung up to handle the flow.

For example, I picked a large company that doesn’t normally generate a lot of media coverage (so not Microsoft or Apple) and visited their press releases page. Then I opened the most recent story “Caterpillar Announces Officer Retirement” and picked a short paragraph near the top:

After more than 15 years with Caterpillar, Hans Haefeli, vice president with responsibility for the Advanced Components & Systems Division (ACSD), has elected to retire to return to the United Kingdom. Haefeli’s retirement will be effective April 30, 2014.

That paragraph doesn’t have a quote in it, so the news media would have no obligation to report it verbatim.

I dropped that paragraph into Google search and looked at the results. The first result is the Caterpiller press release itself. The rest are news outlets:

  • MarketWatch reprints it verbatim off of PR Newswire, and properly labels it as a press release.
  • As does the Wall Street Journal.
  • Rental Equipment Register reports it as a story.
  • HighBeam Research rewrites it as a story about the the replacement and hides part of it behind a paywall.
  • Jutia Group pulls a piece of it off of PR Newswire, and throws in a bunch of other boilerplate.
  • ABC 27 (WHTM), out of Harrisburg, PA quotes it verbatim as coming from “an independent third-party content provider” which is apparently PR Newswire.
  • Benzinga pulls it from PR Newswire.
  • NBC 26 (WAGT), out of Augusta, GA also quotes it verbatim as coming from “an independent third-party content provider” which is apparently PR Newswire. It looks like ABC 27 and NBC 26 are both getting the PR Newswire feed from some sort of news service called WorldNow.
  • The WorldNow version also hits NBC 4, KXXV, WSPA, maybe CNN Money, KCEN, WJHL, Toledo News Now, and many, many more.

There are three lessons here: First, if you want to learn about the world from the news media, learn to tell the difference between news reporting and reprinted press releases.

Second, if you want to get your version of the story out, write press releases. If you’re not sure how, there are plenty of unemployed journalists these days who would be willing to help for a small fee, but basically you just write a story about yourself or whatever you want people to know about. It has to have the same structure and tone as a real news story, and it shouldn’t be full of blatant cheerleading, but there’s no need to bother with balance. Also, remember this is just filler, so it only just barely has to be newsworthy — you wouldn’t believe the crap I get as press releases in my blog email.

Here, let me see if I can make up an example:

FOR IMMEDIATE RELEASE

Attorney Haiduk Blasts Elgin Courier News Editors

December 10, 2013, Geneva, Illinois — Kane Country criminal defense attorney Matthew J. Haiduk lashed out at the Elgin Courier News over their practice of rewriting press releases and publishing them as if they were reporting actual news.

“If you read a newspaper article and don’t know what’s going on, you’d think a newpaper reporter was sitting in a courtroom watching trials as they unfold,” said Haiduk before providing examples of a December 6th Courier story and a press release the same day from the Kane County State’s Attorney Office which had multiple sections that were nearly word-for-word identical.

“It’s not so much an article as it is a rebroadcast of a prosecutor’s statement about the outcome of the case,” said Haiduk, who went on to describe the problem as widespread and recurring. “This happens nearly every day, all over Chicagoland.”

(You’d need to polish it and pad it out a bit, but that’s easy to do when you can quote yourself as saying something because there you are, saying what you said, right there in the press release!)

The third lesson is to use PR Newswire, or something like it. The PR Newswire website describes itself as “the authoritative source of news and information for leading global media organizations,” which certainly seems to be true, given the large number of media organizations quoting from it.

In two places, there are big green buttons labeled “Send a News Release” which take me to an “Online Member Center” that offers such wonders as:

  • Content Distribution
  • Targeting Monitoring and Measurement
  • Online Engagement
  • Social Media Distribution
  • Multimedia Content Submission
  • Online Press Kits

I don’t have an account, of course, but clicking “Sign up to get started” takes me to the membership signup page, which tells me that for $195 per year I will get:

  • Ability to distribute news via the newswire network with the greatest reach and most comprehensive reporting in the industry…
  • Pre-registration, verification, and setup for news release distribution…
  • Quarterly re-authentication of all of your organization’s “authorized senders”…
  • Complimentary access to Premium, member-only webinars that teach you how to effectively leverage your content and engage with your key audiences…
  • Complimentary organizational archive (with logo) on www.prnewswire.com, our award-winning, heavily trafficked, and search-engine optimized news and information site, attracting over 2,800,000 unique visitors each month.
  • 24/7/365, concierge-level professional services and customer support
  • Complimentary phone/webinar training for all major services. Extra fees may apply for in-person training.
  • Complimentary audience engagement counseling. We’ll provide you with effective guidance to help you achieve your communications objectives.

Manipulating the media about big things is hard — just ask the NSA and the President — but when it comes to the small stories, it sounds like you can do it for a low annual fee, billable to your credit card.

Freebies, Part 3 — It’s Not All About You

Because Tim Kreider‘s writing is the gift that keeps on giving, I’m writing a series of posts in response to several issues that he raised in his op-ed in the New York Times called “Slaves of the Internet, Unite.” In Part 1, I discussed how trading free work for exposure isn’t always a con: Sometimes it’s just how the business works. In Part 2, I discussed some of the economics of pricing mental labor. In this third part, I’d like to discuss some of the other people involved in art besides the artist.

Kreider is upset that the artists don’t get enough credit:

This is partly a side effect of our information economy, in which “paying for things” is a quaint, discredited old 20th-century custom, like calling people after having sex with them. The first time I ever heard the word “content” used in its current context, I understood that all my artist friends and I — henceforth, “content providers” — were essentially extinct. This contemptuous coinage is predicated on the assumption that it’s the delivery system that matters, relegating what used to be called “art” — writing, music, film, photography, illustration — to the status of filler, stuff to stick between banner ads.

(Dude, publishers have been contemptuous of their artists since long before the internet was invented. See, e.g., the history of rock-and-roll.)

As for the word “content,” the internet revolution was changing many aspects of the publishing process — marketing, production, distribution — but it was not changing the intellectual process of creating the artistic content: The internet didn’t do much to make writing, composing, or performing any easier. Thus content creators were relegated to a small part of the discussion because they weren’t part of the new revolution.

I now contribute to some of the most prestigious online publications in the English-speaking world, for which I am paid the same amount as, if not less than, I was paid by my local alternative weekly when I sold my first piece of writing for print in 1989.

So why does he keep writing for these publications if it pisses him off so much? Or think back to that band he was talking about earlier, with the venue owner who wanted them to perform free for the exposure. I can understand how that’s frustrating, but bands still perform for free. Why?

Probably because they have to. The delivery system certainly isn’t the only thing that matters, but it certainly does matter.

If it weren’t for the venue owner, that band would have to rent a hall, buy advertising that appeals to potential concert goers, hire people to do sound and lighting, maybe hire a bartender and waitresses and buy some booze, figure out how much to charge for tickets, hire someone to work the door, figure out how to handle the money and pay everybody, and so on. Even then, they’d still have a hard time bringing in a big enough crowd to make money, unless they had been putting on these concerts long enough to establish a reputation for bringing in good bands.

Artists may not like being relegated to “content creation,” but unless they can do all those other jobs, they’re just one part of a system for selling art. None of the other work is easy, and all of those people work hard too, and they want to get paid as much as they can, which means that managing expenses is a challenge. And the audience doesn’t want to get ripped off either, so it won’t be easy to get them to part with money for tickets. Chances are, if bands tried to put on their own shows without the help of promoters and venue owners and managers, they’d probably lose more money than they make. By comparison, working for free is a bargain.

The publishing industry used to be the same way. Perhaps nobody but Stephen King could write a Stephen King novel, but he wasn’t the only person doing hard work. Other people had to copy edit the manuscript, design the book layout, hire the cover artist, typeset the book, print the books, transport them to the stores, and stock the shelves. And if they wanted the book to sell, they had to buy advertising and arrange for promotions. All of that work costs a lot of money and takes skill and knowledge, and none of it was optional. If we judge by how the money was paid out, the author wasn’t even doing the majority of the work: Authors’ royalties were rarely more than 15%, with the rest going to pay everyone else involved in the process.

But these things can change, and Kreider doesn’t care for that either:

Just as the atom bomb was the weapon that was supposed to render war obsolete, the Internet seems like capitalism’s ultimate feat of self-destructive genius, an economic doomsday device rendering it impossible for anyone to ever make a profit off anything again. It’s especially hopeless for those whose work is easily digitized and accessed free of charge.

That’s a funny thing to say, considering that we’re publishing more books and music than ever before. By reducing publication costs, the digital revolution has opened up the market to a lot of smaller artists, bringing much more variety to the market.

I’m a huge fan of Linda Nagata’s science fiction, but in the more traditional publishing environment of the late 1990′s she was unable to sell enough books to make it worth her while, and she dropped out of sight for a few years. But with modern ebooks and print-on-demand technology, the publication process is a lot cheaper, and Nagata has started publishing her own books. She has a lot more expenses these days, but she gets to keep a lot more of the gross. And I get to enjoy reading her new stories.

Another example is Toni Dwiggins, the self-published author of the Forensic Geology series (Badwater and Volcano Watch). Her books are far off the bestseller list, but they are very much the kind of stories I like to read: Mystery/thrillers set against an accurate scientific background. A lot of bestselling authors sell many times more books than Dwiggins does, but just because she has fewer readers doesn’t mean those readers enjoy her work any less.

While visiting her website as research for this post, I discovered that Dwiggins has released a new novella in the series (Quicksilver), and I am just as thrilled about that as I am about books that get a lot more publicity, such as Michael Connelly’s new Mickey Haller novel. However, under the old publishing model that Kreider is mourning, I probably wouldn’t be able to read Quicksilver, because its narrower appeal would have made it unpublishable. That would have been unfortunate for both Toni Dwiggins and for me.

It’s all part of the recent explosion in our ability to customize our lives: We can customize our Facebook page, our mobile phones, and our T-shirts. My local grocery store has five types of potatoes, twenty types of meat, and fifty types of wine. The local cineplex has 18 movies, my television has 100 channels, and I have millions of songs at my fingertips for download. And now thanks to the vast explosion of low-cost publishing, I’m no longer stuck with just a handful of highly-marketable authors. I can customize my reading by choosing from millions of published books.

As it turns out, Dwiggins is giving away the ebook version of Quicksilver for free. That’s just the kind of thing Kreider was complaining about, yet as a self-published author, Dwiggins has near-complete control over the price of her books — no one is making her work for free — so she must have made the decision herself. I emailed her, and she was kind enough to explain:

[...] It kind of boils down to: “I should be paid for my work” versus “How do people find my work?”

I sure want to be paid for my work but the reality is that there are well over a million ebooks available now, just in the Amazon store. One of the side-effects of easy entry to ebook publishing is that a lot of people are doing it. So the question becomes, how does one author get one book noticed?

For instance, you mentioned you noticed that Michael Connelly and I both had new ebooks out. [...] By giving Quicksilver away for free, I get it on various lists that get it noticed by…people like you ;) I’m not a name like Connelly. People who haven’t already found my books and want to read more would never go searching for a Toni Dwiggins book. I need to shove my book under as many noses as I can. And then, if they like what they read for free, the theory is they’ll go on to pay for the next books in my series.

Not dissimilar to the free cheese samples at the grocery store.

In other words, she did it for free because — Kreider’s dire warnings not withstanding — she wanted the exposure. And I got a free copy of Quicksilver out of it.

I’m willing to believe Kreider when he says the new publishing reality is bad for him, but I’m not convinced it’s a problem for the rest of us. Just because successful artists like him are not doing as well as they used to is not a sign that the system is broken. They may be losing out, but other people are gaining. Authors like Linda Nagata and Toni Dwiggins get to sell books, and people like me get to read them.

No Means No: The Medical Exception

Let’s talk about rapist doctors.

I’m not talking about doctors who take advantage of anesthetized patients. That’s a problem law enforcement can deal with. What I’m talking about is someone like Dr. Michael Parsa, who works at the University Medical Center of El Paso, and who essentially raped an unidentified woman for the police, according to a lawsuit filed by the ACLU:

39. After the X-ray, Ms. Doe was again handcuffed to the examination table. CBP agents Portillo and Herrera and Medical Center personnel were present in the room. Defendants left the door to the examining room open, and Ms. Doe could see hospital personnel at the nurses’ station in the hallway. She was angry that CBP had not released her and scared about what would happen next.

40. Defendant Parsa entered the examination room and barked an order that Ms. Doe spread her legs. She complied.

41. Ms. Doe was mortified. Defendants did not even have the decency to close the door to the examining room so that Ms. Doe would not also be subjected to being observed by passersby as she endured a forced gynecological exam.

42. Defendant Parsa then conducted a series of examinations. While agents Portillo and Herrera and other Medical Center staff watched, he inserted a speculum into Ms. Doe’s vagina and observed the interior cavity. According to medical records, Defendant Parsa did not see any foreign objects or evidence of internal drug smuggling.

43. Defendant Parsa also stuck his fingers into Ms. Doe’s vagina while palpitating her abdomen. This bimanual cavity search was negative: According to medical records, Defendant Parsa did not feel any foreign objects or evidence of internal drug smuggling.

44. Defendant Parsa also conducted a rectal examination: he inserted his fingers into Ms. Doe’s rectum and probed the orifice for foreign bodies. According to medical records, Defendant Parsa did not feel any or find evidence of internal drug smuggling.

45. While her rectum was being probed, agents Portillo and Herrera and Medical Center staff watched. Ms. Doe felt that she was being treated less than human, like an animal.

The police didn’t even have a warrant, which means that if these allegations are true, then a bunch of people brought a woman into the University Medical Center of El Paso against her will, and just because they asked him to, Dr. Michael Parsa inserted his fingers and a foreign object into her vagina and rectum against her will. That sounds like rape to me.

When something similar happened to David Eckert at the Gila Regional Medical Center last January — multiple medical explorations of his rectum — the police had at least gone through the trouble of obtaining a search warrant. I’m not convinced that getting an okay from a judge for this kind of violation makes it any better, but in theory the warrant compelled David Eckert to comply with the probings.

It did not, however, compel the doctors to perform the probings. I’m not a lawyer, so don’t use this as legal advice, but until the doctors performed their examinations, they were completely uninvolved with the investigation, and therefore beyond the judge’s jurisdiction. Judges can compel people to produce evidence and reveal knowledge that they already have, but they don’t generally have the authority to order random third parties to obtain evidence and discover knowledge. They can’t, for example, order random photographers to go take pictures of a crime scene for them. David Eckert may not have had a choice, but the doctors did, and I think they chose unethically.

As I pointed out a few years ago, when the subject of forced catheterization came up in connection with a DUI testing incident, the general ethical requirement is that medical procedures should only be done with the informed consent of the patient, and for the benefit of the patient. Consent has its exceptions — in cases where the patient is incompetent to consent, due to mental defect, unconsciousness, or minor status, certain family members can give consent, and there have been cases where a judge overrode a guardian’s refusal to give consent (e.g. had religious objections) to a lifesaving medical procedure, but in each of these cases the treatments were still done for the patient’s benefit.

That’s not what happened here. The examinations performed in all of these cases were not done in any way to benefit the patient, but to benefit the government’s war on drugs. I think the only ethical response to such requests is to refuse to do them.

There’s plenty of precedent for physicians refusing for ethical reasons to do things which they government wants them to do, the most prominent example being the refusal by nearly all American physicians to perform court-ordered executions. And although I can’t find any AMA ethics rules that specifically address forensic examinations conducted against the patient’s will, the AMA rules about participating in court-ordered medical treatments seem sort-of relevant:

Physicians can ethically participate in court-initiated medical treatments only if the procedure being mandated is therapeutically efficacious and is therefore undoubtedly not a form of punishment or solely a mechanism of social control.

So, for example, doctors might use drugs to calm a prisoner with a mental disorder that causes extreme agitation and self-harm, but they shouldn’t simply drug prisoners to make them more manageable for the benefit of the prison staff. Since the examinations conducted in these incidents have no clear medical purpose, they seem a lot more like the latter than the former.

I should note that I’m not saying that Dr. Parsa (or any of these other genital-handling doctors) is a rapist in the usual sense of the word: There’s no indication they did any of these things for their own enjoyment, and they certainly weren’t charged with the crime of rape. My guess is that they were all just having another busy day in the emergency department when someone in charge said “Go help those officers,” and so they did their thing and moved on to the next patient without thinking it through. But here are a few things they should probably think about next time some cops come in wanting someone examined:

Dr. Parsa and the others may not have been charged with rape, but I’ll bet that at least a few of them are rapists in the legal sense of the word. The key to most rape laws is the consent of the victim, not the motivation of the rapist. I’m pretty sure prosecutors never have to prove that the rapist enjoyed it.

And while you might think a doctor would be immune from prosecution because they were working with the police or participating in a court-ordered exam, the thing is that many states’ criminal statutes are notoriously poor at exempting law enforcement actions. For example, in states with the death penalty, the legal definition of murder might not include an exemption for legal executions. My guess is that the rape statutes in many states are no more thoughtfully written and do not include exemptions for law enforcement cavity searches, because no prosecutor would ever charge that. This does mean, however, that any doctor who participates in such searches is probably at the mercy of the District Attorney — and any succeeding District Attorneys — until the statute of limitations runs out.

Or perhaps more to the point, do you really want to do anything to an unconsenting human being that might or might not be rape only because a judge or a cop told you it would be okay? Shouldn’t you make that decision for yourself? And shouldn’t the right answer be obvious?

The title of this post is a lie. No means no. There is no medical exception.

Freebies, Part 2 – Pricing Creative Labor

I’m writing a series of posts in response to several issues that author Tim Kreider raised in his op-ed in the New York Times called “Slaves of the Internet, Unite.” In Part 1, I discussed how trading free work for exposure isn’t always a con: Sometimes it’s just how the business works. In this part, I’d like to discuss some of the economics of pricing mental labor.

Kreider laments:

I’ve been trying to understand the mentality that leads people who wouldn’t ask a stranger to give them a keychain or a Twizzler to ask me to write them a thousand words for nothing.

The difference is in how the price is established. If people asked him to give them a commercial product, they would be asking him for something that he paid for himself — something which, in fact, they could buy themselves at the exact same price. That’s not much different than asking him for money.

Asking Kreider for his writing is different: First of all, Kreider is the only source of Kreider’s writing, so they can’t just buy it from a store; they have to ask him. Second, writing costs Kreider almost nothing out-of-pocket, so it’s not like they’re asking him for the equivalent of money. Third, and most important, the value Kreider places on his time is entirely up to him, and there’s nothing preventing him from setting the price as low as he wants.

Pricing creative labor is a lot like the confusing process of pricing airline tickets. Having paid maybe $100 million for an airplane, the airline wants to charge enough money to earn a good return on their investment. And once they schedule and staff a flight, they’ve already committed to the cost, so they want to make as much money off it as possible. In an ideal world, they’d like to fill every seat with a business traveler paying the full $1000 airfare on his company’s expense account.

But seats on a flight are a perishable good: Just as spoiled fruit can’t be sold at any price, once the plane leaves the terminal, the value of every empty seat falls to zero. That’s why 10 minutes before takeoff the airline will be happy to sell those $1000 seats to standby passengers for $75. As long the airline recovers the small cost in food and fuel for adding an extra passenger — maybe $50 for a coast-to-coast flight — anything else is money in the bank.

Accomplished artists like Kreider are in a similar situation. Kreider has made a large investment in his own human capital. He’s spent 20 years  building up his skills and reputation, so that 1000 written words from Kreider are a valuable thing, worth a lot more on the market than 1000 words from the rest of us. And just like an airline, he now hopes to put that investment to work for him so he can earn a decent income, selling his words for as much as possible.

On the other hand, whether he’s writing for pay, writing for free, or staring blindly at the wall of his dentist’s waiting room, each hour that goes by is an hour that he’ll never get back. At any given time, Kreider will be best off financially if he does the thing that pays the most. So if he’s got an opportunity to do a writing job that will earn him $1000, it would be a financial miscalculation for him to spend the same amount of time doing anything that pays less. On the other hand, on a day when he has no paying work anyway, he loses no income by writing for free. And like an empty seat on a plane, he loses the time whether someone is paying for it or not.

My parents…put my sister the pulmonologist through medical school, and as far as I know nobody ever asks her to perform a quick lobectomy — doesn’t have to be anything fancy, maybe just in her spare time, whatever she can do would be great — because it’ll help get her name out there.

In order to perform the lobectomy procedure, the pulmonologist would need to rent time in an operating room, rent a bunch of specialized medical equipment, hire an anesthesiologist, maybe a surgical assistant, two or three nurses, purchase consumables, run lab work…and whatever else you need for major surgery. So of course she can’t do it for free — it costs a fortune even without her labor.

But if you do work that has a low out-of-pocket cost — writer, musician, photographer, lawyer, programmer — you have little to lose financially by working for free if you’re not foregoing paying work.

I suppose people who aren’t artists assume that being one must be fun since, after all, we do choose to do it despite the fact that no one pays us. They figure we must be flattered to have someone ask us to do our little thing we already do.

I will freely admit that writing beats baling hay or going door-to-door for a living, but it’s still shockingly unenjoyable work.

That’s unfortunate for him, and it leads to one of the things that rubs me the wrong way about his article: He seems to have a contemptuous attitude not only toward people who ask for free work (understandable at times), but also by implication toward people who are willing to do free work.

The fact is, however, that a lot of us get enjoyment out of our work. It’s not exactly a crazy good time, but the human brain seems to be wired so that when we learn a useful skill, we enjoy the chance to use it. We get a rewarding feeling of accomplishment out of doing something we’re good at. So, if it costs us nothing, and we enjoy doing it, why wouldn’t we do it for free every once in a while?

Not only do I write this blog for free, I’ve done software development to support it. Last year, when I moved this blog to WordPress (Part 1, Part 2), I probably did about $10,000 worth of programming at my consulting rate, but I didn’t lose $10,000 by doing it. And in addition to porting the blog, I felt the rewarding sense of a job well-done: The port went really well.

Last spring I helped a friend set up a WordPress blog for free. At my consulting rate, the work I did probably would have cost about $1600, but that doesn’t mean I lost $1600 by doing it for free: He would never have paid that much for a website, and I did it in my spare time when I wouldn’t have been earning money anyway. I enjoyed the chance to use my skills to help someone out. I’m not saying I’ll work for free just for the sheer joy of doing so, but show me a project that’s interesting, and I just might take it up.

On the flip side, I’ve benefited from the effects of spare time and enjoyable use of skills by others. Years ago, I asked science fiction writer Joel Rosenberg to contribute to this blog for free (I didn’t realize he was a published author when I asked), and he joined me here for a while, writing several dozen posts. I don’t know exactly why he did it, but I assume that spare time and enjoying writing had something to do with it.

More recently, law clerk Marilou Auer has been proofreading some of my posts for me. I’ll post something, and a few hours later she’ll email a list of suggested corrections. I do this blog for free, so I couldn’t afford to pay her commercial proofreading rates, but she tells me she does it to keep up her mental agility.

Over the years, several lawyers I know through the internet have offered advice for free, presumably for similar reasons. (I’m not naming them because I suspect I wouldn’t be repaying their kindness by boosting their placement in a Google search for “free lawyer.”)

All of this free work irritates Kreider:

So I’m writing this not only in the hope that everyone will cross me off the list of writers to hit up for free content but, more important, to make a plea to my younger colleagues. As an older, more accomplished, equally unsuccessful artist, I beseech you, don’t give it away. As a matter of principle.

And that kind of contemptuous attitude irritates me.

Update: Part 3 is up.