Category Archives: Uncategorized

Cabbage Day

So the other day my friend Leo got a call from his cardiologist confirming an appointment. As I’ve mentioned before (post 1, post 2), Leo and his father are staying with us while Leo recovers from heart problems and a stroke. We had set up an appointment with his cardiologist for last Friday in preparation for heart surgery, but according to the call he received, the appointment was not on the day I had in my calendar. I called the cardiologist to find out what was going on, and the office staff had no idea what I was talking about. They had the same date for the appointment that I did.

So maybe Leo misunderstood the message. He has aphasia from the stroke, so he has trouble communicating with people, and it didn’t help that the message was one of those robo-call appointment reminders, which left him unable to ask for clarification. This was really not a good way to communicate with a stroke victim.

Eventually, I figured out what was going on. This call was actually from his cardiac surgeon rather than his cardiologist. Apparently, the surgeon had visited him while he was in the hospital, and somebody had set up a followup appointment, and not bothered to tell us about it.

Actually, we’re pretty sure they told Leo about the appointment, but this would have been a few days after his stroke. I’ve mentioned that his mental abilities are improving every day. The corollary is that his mental abilities were much worse when all this started. He remembers very little that happened during that first week after the stroke.

(This sort of thing was a common occurrence when dealing with Leo’s healthcare providers. A few days after this call we got another call about a cardiology appointment we had never heard of. This time it turned out to be a cardiologist who saw him at the second hospital and wanted to do a followup. We agreed there was no reason to see two cardiologists and cancelled the second one.)

Anyway, since the cardiologist and the surgeon are located a few minutes apart but about 50 miles away from my home, we got the surgeon’s office to reschedule their appointment to the same day as the cardiology appointment we already had, with a tentative surgery date of the following Wednesday. However, when Friday came, the cardiologist’s office called to cancel the appointment and asked if we could reschedule for the following Monday or next Friday. Suppressing my annoyance at the scheduling issue and the fact that these people clearly do not talk to each other, I explained that our surgery date meant next Friday was too late, so we’d be there on Monday.

It was still a busy day. We met with the surgeon’s office nurse, and she asked us a lot of questions and explained the process to us. The whole staff seemed very efficient. Then we were off to the neighboring hospital for pre-operative lab tests and a chest X-ray. Before I even got the car started, however, we got a call from the surgeon’s office. After we had left, the surgeon decided he needed a CT scan of Leo’s head, and in the time it took us to walk out to the car, his staff had called the radiology department to set it up. All we needed to do was tell the receptionist.

That all went relatively quick, and with the afternoon off because of the cardiologist’s rescheduling, we decided to drive over to Leo’s house just to make sure everything was okay.

Leo is something of an amateur naturalist, and last year he killed off all the grass in his yard so he could replant it with wildflower seeds native to the Illinois prairie. When I last saw the place, the prairie flowers had grown in a few feet high and looked pretty thick, but when we got there on Friday afternoon, almost a month later, Leo’s yard had turned into a spectacular explosion of dozens of different types of plants towering over my head and teaming with tiny wildlife.

Leo also likes to feed the local critters — birds, deer, raccoons, skunks, cats, etc. — so he can take pictures of them, but it looked like the feed bags he keeps in his house were starting to attract bugs, so we dumped them out at the back of his property where so the local fauna could chow down.

(In my neighborhood, uncontrolled plant growth and feeding wildlife would piss off my neighbors and probably get me cited and fined, but it’s amazing what you can get away with when you live in an unincorporated area far from the prying busybodies in town government.)

While we were there, we started Leo’s car and moved it a bit so the tires wouldn’t develop a flat spot. (I don’t know if that’s really still a thing with modern tires.) We also rebooted the home network, which was behaving a little weird, and tidied up a bit.

On Monday, I stayed home to work while my wife took Leo to the cardiologist’s office. While they were there, the surgeon’s office called to say they needed some kind of approval from his primary care doctor. After a bit of a pissing match between the two offices, Leo’s doctor managed to get them in late that afternoon, which pretty much killed the whole day.

On Tuesday night, Leo ate his last meal before surgery. He then took a shower using special soap. This morning we got up at 4am, and he took another shower with the same stuff. I guess the idea is to minimize the chance that the surgical team will pick up contamination from a non-sterilized part of Leo’s body.

We were ready early, so we left early, just in case we ran into unexpected delays during the drive. We didn’t, so we got to the hospital an hour ahead of time. Eventually they brought us into some kind of prep room where Leo changed out of his street clothes. The anesthesiologist visited. The surgeon visited. They explained what would happen. They started an IV. And then we sat around and both dozed off until they came to take him an hour and a half later.

I’m in the waiting room now, trying to keep calm and keep occupied.

Leo is having open-heart surgery. It’s a cardiac artery bypass graft, abbreviated to CABG, which all the cool kids apparently call “cabbage.” Basically, as I understand it, they will knock him out and then open up his chest and cut through his chest bones to get at his heart. Then they hook him up to a heart-lung bypass machine that oxygenates and circulates his blood. This allows them to stop his heart. With the heart immobile, the surgeon can splice grafts into the cardiac arteries using relatively unused blood vessels from Leo’s leg. He’ll try to add as many grafts as he can, to maximize blood flow to the heart muscle. When he’s done, they will restart Leo’s heart, wire his chest back together, and then close him up. He’ll recover in the ICU for a day or two, and then they’ll move him to a regular room

As you might guess, this is not a sure thing. The heart-lung bypass lines can come loose, or he can start bleeding where they’re connected, or the machine can cause his blood to form clots which will enter his blood stream. The surgeon could make a mistake. A blood vessel could tear. His heart might not restart. Leo could start bleeding internally after the surgery. And there’s always the risk of infection.

Leo’s surgeon is apparently one of the best. The hospital staff speaks highly of him. Leo’s doctor says he’s the guy she’d want if she was having the surgery. From what they’re saying about him, I get the feeling he’s the kind of surgeon from whom medical students learn how to behave in the operating room.

And yet… there’s a small chance — but not small enough to be negligible — that my friend Leo will die. I can’t really grasp that. I can’t imagine what it would mean to me if Leo were gone. What haunts me now is thought of making that hour-long drive home to tell Leo’s wonderful father that his son is dead.

Really, though, I’m mostly OK. The surgery will in all likelihood go just fine. It usually does. There aren’t a lot of complications in Leo’s case, and everybody seems real confident. So the odds of failure are probably pretty small. Less than 1-in-100. Maybe less than 1-in-1000. In one sense, that’s terrific. But it’s still probably hundreds or thousands of times greater risk of death than on an ordinary day.

Well, an ordinary day for an ordinary person. With Leo’s heart problems, he’d be very likely to die soon without the surgery. So he has to have the surgery, and there’s no point worrying about it because neither of us can do anything to change the outcome. Leo has made the only decision he can, and we’re just going to have to see what happens.

Leo has been totally cool about that. As for me, as I sit here waiting for the surgeon to finish his work and come out and tell me how it went, I’m wavering between somewhat cool and somewhat freaked out.

So, I’ve got my laptop plugged in, I’m on the hospital we-fi, and I’m waiting.

Clinton Did It, but What Would Trump Do?

Here’s a sentiment I’ve seen from some Donald Trump supporters, especially those who get to Trump by way of Bernie Sanders and hate Clinton enough to vote for Trump:

(In case it doesn’t show, it’s a picture of a dumb-looking guy saying “I’m voting for the candidate who got people killed, covered [up] sexual assaults and threatened national security…because the other one said mean things.” The person who tweeted it responds “Sums up Clinton supporters really well.”)

In many situations, that’s a reasonable thing to say, but I don’t believe we’re living through one of those situations.

If this was a matter of criminal justice, for example, that would be a good point: Criminal culpability depends on known bad acts in the past, not on predictions of bad acts in the future. But this is not about criminal justice, it’s about the future of the country. We can’t change what the candidates did in the past, but we can control what they do in the future, so our ultimate concern should be what the candidates will do, not what they have done. Put another way, the Presidency is not a reward we give to the candidate whose past we most admire, it’s a job we give to the candidate who we think will do best in the future.

Of course, a person’s past behavior is a pretty good predictor of their future behavior, so Hillary Clinton’s past certainly does inform us of her likely future, and voters should definitely take her past behavior into account.

But it’s important to understand how that past behavior is shaped by opportunity.

I’ve owned house cats for a couple of decades, and I’ve been scratched by them quite a few times over the years. On the other hand, I’ve never been injured by a tiger. Does this mean that I would be safer if I replaced my house cats with tigers?

Obviously not. The difference is opportunity. My cats aren’t very likely to injure me during any given encounter, but because I encounter them thousands of times a year, they still do some damage. On the other hand, I’ve never in my life encountered a tiger that wasn’t kept safely in a zoo, so even though tigers are much more dangerous than house cats, they haven’t ever harmed me because they’ve never had the opportunity.

No one has given Donald Trump the opportunity to do the things that Clinton has done. No one has given him that much power. He’s never harmed national security because he’s never had responsibility for national security. He’s never gotten anyone killed because he never held a position where people’s lives were on the line.

That makes it harder to predict what Trump would do if he won the Presidency, but we can still make some pretty good guesses. For one thing, we can look at the things he says.

If that’s not convincing, we can also look at the kinds of things Trump has actually done with relatively limited power he has:

  • Trump has arranged for his businesses to receive millions of dollars of taxpayer money.
  • When Donald Trump’s deceased brother Fred’s surviving family contested Trump’s father’s will for all but disinheriting them, Donald Trump cut off the health insurance coverage that was paying for their infant’s medical treatment.
  • Trump hired illegal Polish immigrants to work on one of his developments without bothering to supply them with basic safety equipment like hard hats.
  • Trump University scammed working class people into borrowing and spending way too much money for an education in business that never materialized.
  • Trump tried to use eminent domain to force an elderly widow out of her home so he could build a casino parking lot.
  • Trump has done business with the mob.
  • Trump has bankrupted several businesses.
  • Trump has discriminated against black would-be renters of his properties.
  • Trunp hired Roy Cohn — one of Senator Joseph McCarthy’s attack dogs during the red scare — as his lawyer.
  • Trump businesses routinely refuse to make full final payments on bills they owe.
  • When Roger Ailes resigned following allegations of sexual harassment, Trump hired him immediately.
  • Trump runs a charity that is much, much more of a fraud than the Clinton Foundation.
  • The link in that last item also describes Trump’s bribery of a public official.

Trump may not have done some of the bad things Hillary did, but he seems to lie, cheat, and steal at every opportunity. Let’s not give him any opportunities to do even worse.

David Bowie 1947 – 2016

So David Bowie died last night. I’ve been watching the word break across Twitter. Reactions from everyone — from sex workers to Weird Al to Elon Musk.

People have been posting some of their favorite Bowie songs. I guess my choice makes me a traditionalist. It’s not the most radical of his songs, but it has some memories.

I, I wish you could swim
Like the dolphins, like dolphins can swim
Though nothing, nothing will keep us together
We can beat them, for ever and ever
Oh we can be Heroes, just for one day

I, I will be king
And you, you will be queen
Though nothing will drive them away
We can be Heroes, just for one day
We can be us, just for one day

I, I can remember (I remember)
Standing, by the wall (by the wall)
And the guns shot above our heads (over our heads)
And we kissed, as though nothing could fall (nothing could fall)
And the shame was on the other side
Oh we can beat them, for ever and ever
Then we could be Heroes,
just for one day

We can be Heroes
We can be Heroes
We can be Heroes
Just for one day

That was the single version. Here’s the album version.

I think this sums it up:

Haiduk Steps Up On Possession

Kane County criminal defense lawyer Matt Haiduk has posted a response to my earlier post about the strangeness of the crime of possession, in which he address both of my scenarios and makes a few additional points.

In response to my hypothetical stranger-hands-me-a-duffle-bag scenario, Matt has some legal advice:

From a strictly legal standpoint, you need to drop all that stuff immediately. Possession of illegal stuff typically has to be “knowing” to stick in court. Holding that bag in those circumstances for a short time not knowing what’s in it is one thing- you’re not knowingly possessing something you shouldn’t. Once you see child porn, something you believe are drugs, and an illegal firearm the “knowing” element is shot.

You can cure that, though, by not possessing it.  Legally speaking, you don’t take it anywhere to get rid of it and you don’t call somebody while you’re holding it. You cease possessing it immediately.  Then you get the hell away from there…

And then Matt suggests that his legal advice is not the smartest advice:

You’re out on the street with a duffle bag filled with guns, coke and child porn. Depending what the surfaces on the bag or the items in the bag, your fingerprints might be on there. There are cops running at you who haven’t seen you yet, but just might if you do something out of the ordinary (like drop a duffel bag and run across the street).

Assuming that’s how it does go down, dropping a bag full of contraband in front of the cops and possibly having your fingerprints on the contraband inside is what prosecutors call a very strong circumstantial case.

Matt goes on to explain what he thinks is probably the smartest thing to do, but I’m not going to repeat it here. You’ll have to read his post to see.

Matt also addresses my not-so-hypothetical scenario of emergency Doctor Sandeep Jauhar who was handed an envelope of (presumably) cocaine by a client. He promptly threw it away, an act which has attracted criticism from Northwestern Pritzker School of Law Professor Steven Lubet. I in turn had criticized Lubet for accusing Dr. Jauhar of obstructing justice without explaining what exactly the doctor should have done. I felt that Dr. Jauhar did the best he could.

Matt, on the other hand, does better than both me and the law professor:

Patients every day enter a hospital in an emergency fashion with jewellery, a purse or wallet, or important documents. The hospital collects that stuff, and puts it into a safe or some sort of storage.  Juahar could have placed the item in a bag, stapled it shut and put it with the rest of the patient’s belongings- whether in a safe or not.

In that situation there’s no hiding and there’s certainly no destruction.  He’s not possessing it, either. He’s also not betrayed any patient confidences. He’s doing what is always done. If the police ask the Doctor about it, he can tell them what he did with it and where it went.

Note that Matt’s solution addresses the criminal law issue without abandoning doctor-patient confidentiality, which is the difference between asking a law professor (or a blogger) and asking a practicing lawyer.

(I say nice things about Matt Haiduk because his blog is a great read, but also because he’s the only real Illinois law blogger I know of, which makes him my first call if I ever get arrested.)

Threats Best Ignored

Over at Simple Justice, Scott wrote in the comments about receiving threats:

I get “threats” regularly. The difference is grown ups don’t cry about how they’re “terrified” whenever any flaming nutjob writes something on the internets. I’ve been told that’s because I’m male and can defend myself, while they’re just fragile females, but it’s a nonsense argument. Words are words, for better or worse.

It’s hardly worth my time whining about words that threaten me, but the SJWs are obsessed with it, and so the idiot children who attack them have a very different impact than the idiot children who attack me.

To which commenter DrPizza responds:

Were words just words when 4chan lunatic posts that he’s going to shoot up a school and then does precisely that?

First of all, I don’t think the 4chan link has proven out. It seems to have been a misunderstanding, a satire, or a hoax (4chan apparently has a strong discordian vibe).

More importantly, even it if were true, it would be a completely different thing. The people threatening Anita Sarkeesian and Zoe Quinn are making anonymous threats against public figures that they don’t personally know, whereas the Umpqua Community College shooter killed a teacher and a bunch of students in a class he was taking. Even if he had posted about it on 4chan, his targets were people he knew personally and met on a regular basis. These are completely different scenarios.

Sometimes words are just words.

Other times words betray intent.

How does one reliably determine the difference? Which words should be ignored; which should not?

Threat assessment is a tricky subject, but as a general rule, people who make anonymous threats against public figures almost never actually carry out the threatened attack. That doesn’t mean they’re not assholes and criminals — they’re still trying to use threats of violence to intimidate and manipulate — but it’s best to ignore them if you can find a way to do so.

That’s not always as easy as Scott makes it sound. Since these people don’t actually attack their targets, drawing attention to themselves is the best they can hope for, and so they tend to get really good at it. Scott’s probably met some genuinely dangerous people, so he can spot people who are faking it on the internet, but the rest of us have to pretty much take it on faith.

Criminal Defense and the Cardinality of the Client

In a tweet, criminal defense blogger Norm DeGuerre refers to an article by Michelle Alexander that asks,

What would happen if thousands of people charged with crimes refused to plead out?

Norm then asks

Bringing the system to its knees is in your clients’ best interest. Why aren’t we doing it?

And in a blog post, Mark Bennett gives the standard response that every thoughtful criminal defense lawyer gives when confronted with the “take every case to trial” idea:

The answer is simple: because we do not serve our clients’ best interest. We serve our client’s best interest. And what is in the clients’ best interest has nothing to do with what is in the client’s best interest.

What Mark’s getting at, once you sort through his very specific use of apostrophes — and assuming I’m not totally crazy here — is one of the more interesting game-theoretic aspects of criminal defense: The ethics of legal representation require lawyers to act in each client’s best interest (in the context of legal representation), and they are not allowed to sacrifice the client’s interests to achieve their own goals, including their goal of acting in the interests of other clients.

Thus, when making decisions about how to proceed for a particular client, they are not allowed to take into account the effects of their decisions on any other client of theirs, now or in the future, nor are they allowed to pursue social goals that might benefit other clients of theirs or other lawyers. For example, if a lawyer represented several people accused of committing a crime together, he would theoretically be obligated to make independent decisions about each client — including whether to recommend testifying against his other clients, in which case he might find himself racing to the prosecutor’s office on behalf of two or more clients at the same time!

No lawyer could possibly handle a conflict of interests this severe without at least the appearance of impropriety, so the ethics of legal representation wisely prohibit a lawyer from representing multiple clients in the same case (or whose interests otherwise conflict). Consequently, when several people are accused of committing a crime together, each defendant gets to have a separate lawyer. In practice, this means they would also have to be from separate law firms (except apparently in some public defender’s offices.)

If lawyers somehow cooperated to implement a “take every case to trial” strategy, the justice system would be overburdened, which would mean that prosecutors would probably be willing to offer really amazingly good deals to some defendants in the hope that they will plead out and reduce the trial load. It might be in the best interests of all clients considered as a whole to go to trial, but it could also be in the best interest of any single client to take the really great deal he’s been offered. Since defense lawyers are required to act in the best interests of each client, they would each be obligated to advise their client to take the deal. But when enough clients take the deals, the burden on the justice system is relieved, and the “take every case to trial” strategy collapses back to plea bargaining as usual.

As a consequence, the “take every case to trial” collective strategy would fall apart almost immediately as long as lawyers continued to obey the ethics rules. Consequently, no ethical criminal lawyer would seriously consider attempting this strategy. Which is why, no matter how unpleasant it is in the aggregate, lawyers continue to correctly advise their individual clients to take good plea deals rather than risk being found guilty at trial.

Civil law is more flexible, and several parties to a lawsuit will often consent to representation by the same lawyer in the interest of simplicity and cost savings if they consider themselves to be on the same side — e.g. all sued by the same plaintiff. This is especially likely to be the case if a single party such as a common employer has agreed to pay all costs. Since all the damages are coming out of the same party’s pocket, the lawyer is effectively representing a single client.

In criminal matters, the same is true of the prosecution. There may be victims, but the prosecution is carried out on behalf of the government, so all prosecutors are working for the same client. They are free to make any tradeoffs they want between cases, such as offering deals to some defendants to testify against others, and they can use their discretion to pursue broad policy goals, treating some crimes lightly in order to free up resources to come down hard on others. This flexibility is one of the fundamental differences between prosecution and defense strategies.

I should emphasize that none of this is intended to impugn Norm DeGuerre’s ethical standards for bringing this up. Subsequent twitter exchanges make it clear that he understands the ethical issue, but he nevertheless laments the resulting harm to clients.

However, being after all a lawyer, he does seem to be trying to skirt the ethical issues when he tweets,

And who knows, maybe we would be better at trials if we accepted our clients’ decisions and DID more of them.

Clients often say they want a trial even in cases where it would be a really bad idea. Ultimately, the decision is up to the client, but a good lawyer is supposed to try to talk them out of doing dumb things. However, if the lawyer didn’t try very hard, and the client still went to trial, the client would get what he wants, and going to trial would put pressure on the justice system to not take other cases to trial, so clients as a whole would conceivably benefit. This would benefit clients in general at the expense of specific clients, but if it’s what the specific client wants…maybe it’s ethical?

(I think probably not, because lawyers have a duty to give good advice, but I’m in over my head here. Lawyers are experts at finding tricks in systems of rules, so there might be situations where this is completely ethical.)

Norm also seems to think that a significant number of criminal lawyers are trial averse — due to either fear or laziness — and discourage their clients from going to trial more often than they should, which hurts all criminal defendants by easing the trial load on the prosecutors’ office. (Norm apparently loves going to trial. As he puts it elsewhere, “As a public defender, a client telling me, ‘I didn’t do shit!’ is enough of a reason as any to take his case to trial.”)

In another post, Mark Bennett takes that idea in an interesting direction:

[F]or the sake of the system it’d be better if more lawyers had pathologically rosy outlooks, because then fewer defendants would plead guilty. In fact, one way that we might get more defendants to refuse to plead guilty is to get lawyers to believe more in their ability to win more cases. If our concern is the clients’—rather than the client’s—interest then we want to encourage criminal-defense lawyers to view trial more optimistically, whether or not that optimism is merited.

How might we encourage criminal-defense lawyers to view trial more optimistically? One way would be to pretend to teach them to be better lawyers—to teach fake CLE, and pretend to give them more tools to use to win their trials.

This neatly skirts around the ethical issues of legal representation. The folks teaching the fake CLE classes are deceiving the lawyers by pretending to teach them skills that don’t work, but if the ultimate result is to bring the plea bargaining system to its knees, then it could produce a net benefit for clients. And the lawyers teaching the classes have no ethical obligations to any individual client, so they are free to seek to maximize the clients’ aggregate welfare. In fact, since bringing down the system will probably end with prosecutors charging fewer people, this will even help people who are never the clients of any lawyer.

This is the logic of many public health initiatives — the flu vaccine kills a few people every year, but the vaccination program saves thousands. It is also the logic of many public interest activist groups, which may engage in activities intended to improve society, even at the expense of some members of society.

(Mark goes on to say that fake CLE classes might not be such a good idea, and that a much better solution would encourage lawyers to be more optimistic about trials by actually teaching them better trial skills.)

Interestingly, I think the article that got Norm DeGuerre excited in the first place may also avoid the ethics issue. The way I read it, Michelle Alexander isn’t encouraging lawyers to crash the system, she’s contemplating the possibility of the clients themselves doing it:

After years as a civil rights lawyer, I rarely find myself speechless. But some questions a woman I know posed during a phone conversation one recent evening gave me pause: “What would happen if we organized thousands, even hundreds of thousands, of people charged with crimes to refuse to play the game, to refuse to plea out? What if they all insisted on their Sixth Amendment right to trial? Couldn’t we bring the whole system to a halt just like that?”

Great change often involves sacrifice. If thousands of black people in Montgomery could boycott buses for a year, if the boycott leaders could be arrested and jailed, if black people could risk beatings and arrest for sitting at whites-only lunch counters, if slaves could risk their lives escaping, and thousands of people could fight and die in a civil war…then perhaps today enough people would be willing to risk lengthy jail sentences to bring down the system of mass incarceration.

“I’m not saying we should do it. I’m saying we ought to know that it’s an option. People should understand that simply exercising their rights would shake the foundations of our justice system which works only so long as we accept its terms. As you know, another brutal system of racial and social control once prevailed in this country, and it never would have ended if some people weren’t willing to risk their lives. It would be nice if reasoned argument would do, but as we’ve seen that’s just not the case. So maybe, just maybe, if we truly want to end this system, some of us will have to risk our lives.”

It would be better to wind down the system of mass incarceration through moral suasion and peaceful change, but if that’s not working, maybe something drastic will be needed.

Finally, while the ethical barriers to a “take every case to trial” strategy depend on the nature of lawyers’ obligations to individual clients, a more fundamental requirement is that there be a trial tax: If going to trial isn’t particularly likely to be worse than taking a plea, then taking cases to trial becomes the dominant strategy. If the justice system treats defendants terribly even if they accept plea bargains, and if the prosecution comes to depend on plea bargains so much for certain types of cases that they lose the organizational capability to convict people, then all hell can break loose.

You know how we worked? We put the state on their heels with our crazy volume of cases.  At the height of our “reign” it was a full nine months from the time somebody demanded trial until their first trial setting.  The state was so overwhelmed that they were only getting subpoenas out a week to ten days before the trial.

[…]

When you force the state to actually prepare for trial on every damn arrest the cops make, you’re going to win a lot of cases. Like, almost all of them. They were having to drop cases as quickly as we set them. We’d be crazy to change anything.

Although, as the author of that post eventually discovers, the system has ways of defending itself. It’s one thing to gum up the works, and it’s another thing to cause lasting positive change. It may not be possible to overthrow mass incarceration with cool legal stunts.

Protests Are Not For the Police

It seems I’ve been taking a lot of shots lately at muddled thinking on the left, so I thought I’d try to balance things out. I often grab my craziest liberal nonsense from Addicting Info, and now I needed to find a similarly addled site for right-wing content. Fortunately, there’s the Conservative Tribune.

The site is mostly clickbait nonsense, but this article displays an attitude I’ve encountered before — it’s a why-aren’t-people-outraged piece — and I wanted to try to come up with a response.

Our nation’s police officers are under attack. Between last week and this week, three police officers have been gunned down in cold blood. Yet there are no protests. No buildings are being looted. The president isn’t saying that one of those officers could be his son.

What exactly would people be protesting? More to the point, who would they be addressing their protests to?

Officer Gregg Benner, a Rio Rancho, N.M., police officer, was shot on Monday night. The 49-year-old Air Force veteran had been with the police department almost four years. He was survived by his wife and five adult children. His killer has been brought to justice.

The protests in Ferguson and Baltimore broke out because people felt they weren’t getting the justice they deserved. What exactly should people be protesting here? The shooter, Andrew Romero, has been arrested, he’s been charged with murder, and he’s is being held on a $5 million bond. The FBI is also taking an interest. The system is working. There’s no one to protest against.

Instead, Rio Rancho residents have been showing support for the Benner’s family and the police department. The memorial at the site where he was shot is covered in flowers and flags.

Officer Kerrie Orozco was murdered in Omaha, Neb., on Wednesday by Marcus D. Wheeler, a 26 year-old black male. Wheeler was killed during the shootout with Orozco.

Again, why should there be protests? The person who murdered Officer Orozco is dead. You can’t get much more justice than that. What would protesters be protesting for?

Rather than protest, people gathered to mourn the loss. Hundreds of people attended Kerrie Orozco’s funeral, and thousands lined the streets along the route.

And on Sunday, Officer James Bennett Jr. was shot and killed in his patrol car in New Orleans. A manhunt is underway for his killer (H/T The Gateway Pundit).

Three unnecessary deaths all within a week of one another. Three lives cut short, yet no one from our government seems to care. This is disgusting.

One killer arrested, one shot dead by police, and one the subject of a massive police manhunt. I’d say people from the government care rather a lot. The criminal justice system comes down very hard on cop killers. You don’t need fiery speeches from politicians and protesters when the system is working.

All across the country, police officers are under attack by the very criminals they are trying to protect us from. Killing a cop used to be a line that almost no one would cross. Now, it seems like every other day we read about another officer down.

Actually, the number of police officer killings has been fairly steady lately, and it’s down quite a bit since the high point of police killings in the 1970’s.

President Barack Obama, Al Sharpton, and the rest of their race-baiting ilk are directly responsible for these atrocities. Through their efforts to criminalize the police force, they have created an open season on police officers.

It would be nice to offer some evidence for a claim like that. The three examples in this article certainly don’t appear to have been the result of a generalized anti-police sentiment. We don’t yet know why Officer Bennett was shot, but both of the other officers were shot by people with long criminal records. Wheeler shot at cops trying to arrest him, and Romero was trying to avoid arrest.

Police officers are out there every day trying to keep us safe. They aren’t perfect. None of us are. However, they represent law and order in this country, and when you attack them, you are attacking everything this country is built upon.

Uhm…actually…this country was kinda founded on fighting against British law and order…so maybe that’s not the best argument…

Yet there have been no mass protests. There have been no riots demanding justice for these slain officers.

You know what kind of people have protests and riots? People who feel they have no other way of being heard, no other way of attracting attention to their needs, no other way of getting justice.

The police don’t have that problem. One of the perpetrators has already been arrested, and another is dead. The third is still at large, but it’s not because nobody cares about the officer he killed. Nobody’s protesting over murdered police officers because the police don’t need protests to get justice.

Of Experts and Explainers

The Volokh Conspiracy blog has finally made the move behind the Washington Post paywall, and that led to an interesting comment on Twitter by conspirator Orin Kerr about the change in audience from being an independent blog to being part of a major media outlet:

I think we’ve gained some and lost some. I’m worried we lost the law nerds and gained general interest readers.

As Roger Ford adds,

Skimming down the site now, it sort of reads like “Eugene Volokh explains the legal news for lay readers.”

The original Volokh Conspiracy site had long been a source of intelligent discussions about legal theory, but with its new larger and more varied readership, it has apparently become less focused. Scott Greenfield at Simple Justice explained the change in more detail:

Forgive me for digressing, but my thoughts are best expressed with some context. While VC historically highlighted legal scholarship from a somewhat conservative libertarian perspective, it did so with a touch of realism, in connection to real world events, that made it relevant to what practicing lawyers do, as well as judges who decide such matters. VC was the nexus between theory and practice.

SJ is written from the criminal defense lawyer perspective, which meant that it tended to be too rough and vulgar for academics. From my perspective, the critical audience was fellow CDLs; that others, from lawprofs to civil lawyers to non-lawyers, didn’t really matter.  To the extent I was concerned about other people’s views, it was the views of my colleagues, my brethren.

That VC has abandoned its effort to connect academic theory, even with its libertarian tilt, with real world practice, and instead sees its future as persuading the groundlings to embrace its theories, makes no sense to me at all.

Does that mean the ridiculous drivel dished out by Paul Cassell will be the norm?  Does that mean Eugene will no longer offer First Amendment analysis of any depth?  Does that mean Orin will only use small words and abandon trying to explain the mosaic theory?

That’s a common area of tension that shows up in many fields, including the sciences: There are people who are important in their field, and there are people who are experts at explaining their field. There’s not much overlap.

Some of the explainers achieve a degree of fame, but when you look at their scientific contributions, they haven’t usually made major contributions to their field. Carl Sagan was not one of the world’s greatest astronomers, and Neil deGrasse Tyson is not one of the great astrophysicists. Much the same can be said of Richard Dawkins and Steven Pinker in their fields, and Bill Nye The Science Guy is more of an engineer and inventor than a scientist.

I’m not saying these people are idiots or fakes. I’m sure they all did their jobs very well, and they’ve usually contributed something original to their fields, and all of them by definition are good at science education of some kind. Nevertheless, they usually aren’t among the top experts in their fields in the opinions of other experts in their fields.

The real experts are rarely well known to the public. Except for major historic figures like Isaac Newton or Charles Darwin, most of us wouldn’t recognize the names of important research scientists unless they have stuff named after them like Heinrich Hertz and Alessandro Volta or because they have entered popular culture, such as Erwin Schrödinger, known for his cat, and Werner Heisenberg, known for his uncertainty principle (and now for also cooking crystal meth). In their time, however, they weren’t well known to the public.

(Because the major contributors to scientific fields are generally not known to the public, I’m pretty much guaranteed to have characterized someone as an explainer rather than a major contributor because I am unaware of their important contributions to a field other than my own. Sorry.)

By way of example, my background is in computer science, and I think I can come up with a few very important contributors to computer science that you probably never heard of, such as Edsger Dijkstra, Donald Knuth, C.A.R. Hoare, Fred Brooks, Grace Hopper, and Niklaus Wirth. You probably know Noam Chomsky, but for his politics rather than for his influence on computer science, and everyone seems to have heard of the Turing Test for artificial intelligence, but that was not Alan Turing’s most important contribution to computer science.

The division between contributors and explainers often occurs within academia, in the split between teaching and research. Economist Steven Landsburg illustrated the difference between these groups by analogy to a cocktail party involving two groups of people: The researchers are like a group of people in the center who are talking to each other about all the interesting things they do, whereas the educators are are all standing around the edges, talking about what the group in the center has been up to. (I may have mangled this a bit.)

Landsburg asked readers which group they’d rather talk to: The interesting people in the center or the people at the edges who talk about what the folks in the center are doing. To him, the answer obvious answer was that you’ll want to talk to the people in the center, and that’s why students are better off joining academic departments that do research.

I think that misses an important point: Talking to the group in the center is only the best choice if you can understand what the people in the center are talking about. A student new to the field is unlikely to benefit from discussions that assume half a decade of education in the field. More to the point, there’s a difference between understanding complicated subjects, and knowing how to break down complicated subjects into simplified component bits of knowledge that can be taught to students.

One of my introductory calculus classes was taught by a professor who was one of the most important researchers in the math department. It was a terrible class. I have no doubt he understood the subject, but he had no idea of what it was like to not understand calculus, and he was consequently incapable of explaining it to us. Rather than using carefully crafted examples to illustrate how calculus works, he would make up ad hoc problems that required us to spend a lot of time thinking about ancillary issues. The homework problems would be straight out of the lesson plan, which was not always what he had been teaching us. The disconnect was especially bad on the test questions — I’m convinced that some of them required us to know things he didn’t realize he hadn’t taught us yet.

There’s also the question of whether the people in the center will be willing to talk to people who know very little about the subject. After all, they also want to learn the cool new stuff, and that means they have little time for newcomers who can teach them nothing interesting. Serious research professors are known for having crappy office hours.

Switching back to my own field, software development, as an experienced software engineer, I would probably have trouble figuring out how to teach an introductory course in computer programming. For example, when I approach a programming problem, I might think about many aspects of it at once — algorithmic correctness, efficiency, resource consumption, parallel processing, network traffic, database architecture, interface design, scalability, generalizability, separation of concerns, layering, composability, opportunities for refactoring, testability, and so on. I’m not trying to brag. Those are all things that pretty much any experienced software engineer will keep in mind, and they are things that all developers should learn about.

However, it would be a mistake to try to teach someone computer programming from the ground up by teaching them about all those things at the same time. A good teacher would probably start with some foundational skills such as expressions, control structures, and basic class design before moving on to details of the language and the runtime library and then some of the bigger-picture organizational concepts.

Every field needs both kinds of members — those who do it well, and those who explain it well. Those who do it well sometimes look down on those who teach it, especially since the teachers often lack the detailed knowledge of the practitioners, and they often make mistakes. These errors and omissions are a problem, and they should be corrected, but when it comes to teaching a field of knowledge, a skilled teacher who gets some parts wrong can still impart more information to an audience than a skilled practitioner who knows everything but doesn’t know how to explain it.

For example, in discussing the weather, we refer to the relative humidity of the air. The basic idea is that air has a temperature-dependent maximum capacity for moisture — the higher the temperature, the more water the air can hold — and relative humidity expresses how much water is in the air as a percentage of the maximum theoretical capacity.

This concept explains thinks like why items in the refrigerator frost over when you leave the door open — the warm room air cools down, which reduces the water carrying capacity below the amount of water already in the air, forcing the excess water vapor to be deposited as “sweat.” This is also why air conditioners always have to drain off water: The suddenly cooled air can’t hold the water and deposits it on the evaporator coils.

This model also explains why we run humidifiers in winter — your furnace warms the air, which increases it’s water vapor carrying capacity, but your furnace doesn’t actually add water to the air. Since relative humidity is the amount of water vapor in the air divided by the maximum capacity, and only the capacity is increased, your furnace reduces the relative humidity of the air, and it feels too dry. A humidifier adds water vapor to bring the relative humidity back up to comfortable levels.

Further, the human body’s cooling system relies on sweat evaporating from the skin to carry off heat, but if the air is already near its carrying capacity, there’s no “room” for the sweat to evaporate, so your body doesn’t cool enough. This is why dry heat is more comfortable than hot and humid weather. It’s also why we set out thermostats warmer in winter than in summer: The heated air is drier, so evaporative cooling makes us feel chilly unless we bump the temperature up a bit.

This “carrying capacity” model of humidity is widely known, it makes sense of a lot of things we observe about the world, and it is routinely taught by school teachers. And yet it is almost completely wrong. The real explanation of what’s going on is considerably more complex and harder to understand, unless you are used to thinking about systems in equilibrium and know some basic physics of gases.

To be sure, the correct explanation is much better. It can be expressed analytically, and you can use it to solve real-world engineering problems, where it will give accurate answers across a broad range of scenarios. And yet most people can get by with the simple but wrong explanation, because it’s good enough. And in this case, good enough is easier to teach.

Understand, I’m not defending teaching people things that are wrong. That’s always a bad outcome, and in fields like medicine or law, it can be dangerous. What I’m saying is that often someone who’s good at explaining things can be a better educator, even if they make some mistakes, than someone who gets everything right, but can’t get it across to anyone else.

And sometimes it’s not so much that they can’t explain it as that they won’t explain it or they don’t have the time to explain it. We can complain about some of the questionable neuroscience in Carl Sagan’s Dragons of Eden, but most real neuroscientists are busy doing real neuroscience, and they don’t have time to answer your questions or write a popular science book. We can poke fun at law professors who reveal their lack of practical knowledge when they go on talk shows, but most experienced trial lawyers are too busy practicing law to answer questions about the latest trial in the news. In both cases, as long as they don’t actively make people stupider, we’re better off with them than without them.

As for the Volokh Conspiracy, I don’t read enough there to follow what’s going on, but if they are changing their target audience from “law nerds” to general interest readers, that’s going to disappoint the nerds, but maybe it will bring a smarter, more rigorous explanation of the law to lay readers.

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