The case against Lori Drew has been dismissed (more or less) by the federal judge who was hearing the case. This counts as very good news...but not exactly wonderful news.

For those not following the case, Lori Drew used MySpace email to play a cruel trick on a teenage girl named Megan Meier, who killed herself. Prosecutors in Drew's home state of Missouri didn't prosecute her for this, probably (I'm guessing) because saying mean things to little girls isn't a criminal act.

That didn't stop grandstanding U.S. Attorney Thomas P. O'Brien from stepping in. Even though he was located 1500 miles away in the Central District of California, he used the fact that MySpace's computers were located in California to charge Drew with computer fraud because she violated MySpace's Terms and Conditions when she used fake information to setup her account.

In other words, he didn't prosecute Lori Drew for what she did to Megan Meier, he prosecuted her for what she did to MySpace.

That's a horrifying precedent. Millions of Americans provide false information to web sites, sometimes to be sneaky, sometimes to preserve their privacy, and sometimes just out of vanity. This interpretation of the law makes criminals of them all.

As the judge put it:

"Is a misdemeanor committed by the conduct which is done every single day by millions and millions of people?" Wu asked. "If these people do read [the terms of service] and still say they're 40 when they are 45, is that a misdemeanor?"

Some people have tried to defend this interpretation by pointing out that federal prosecutors just wanted to punish Lori Drew. They aren't about to file charges against millions of Americans. Of course not. I'm not worried about them filing charges against millions of Americans. What does scare me, however, is the thought of federal prosecutors having the ability to file charges, at any time, against any one of several million Americans.

This time they filed charges against Lori Drew, who, in the grand scheme of things, deserved a crapload of grief. But who would have been next? Someone else who did an awful thing that couldn't be prosecuted any other way? Or perhaps just someone who pissed off a prosecutor. It's not hard to imagine O'Brien or some other self-important federal prosecutor (I'm lookin' at you, Mary Beth Buchanan!) going after some of their detractors for giving false information when they signed up for a blogging account.

Fortunately, Judge Wu is dismissing the case, and he's dismissing it not on the facts or on some procedural error, but because he doesn't think the computer fraud statutes apply so broadly. This gives all of us cause to breath a little easier.

(Hat tip: Ken) 

Update: I have edited this post to emphasize the prosecutor's grandstanding, as suggested by Ken in his comment below.

In response to my earlier post of a couple of thoughts on healthcare, a reader called "bunkerbuster" throws a few interesting questions my way:

What's your view on demand for health care?

The market model would have it increase to infinity if it becomes zero cost to the consumer.

Generally, that is the rule, but I think "bunkerbuster" is right to be skeptical for three reasons. First of all, the market model is a model, and nobody seriously expects models to work at the extremes. Having an infinity turn up in the middle of your model is usually a sign that you've gone too far.

Second, healthcare has non-financial costs---such as the time it takes from a busy day and the fact that it's often very uncomfortable---that prevent the true cost to the consumer from ever dropping away to zero.

Third, like everything else, healthcare has diminishing returns. The most important bits of medical care are extremely important to your health, but additional care is less and less valuable. These returns likely diminish all the way to zero---or at least below the costs mentioned in the previous item. Once you've fixed everything that's wrong with you, why would you buy more healthcare, even if it's free?

(Of course, health problems can be defined down. Back when most children never made it to adulthood, nobody worried about allergies. Nowadays, people take pills to get rid of toenail fungus, and some plastic surgeons have lobbied to have small breasts classified as a disorder.)

But in reality, the non-union pipefitter who can now afford to have regular check ups may well have significantly lower long-term demand for medical services.

So here's a point to ponder: If preventive care reduces long-term costs, shouldn't we expect uninsured people to consume a lot of preventive care, since they are more directly exposed to the costs? That's apparently not what happens, however, because our healthcare system already includes a distortion in healthcare pricing, as illustrated by the last part of the comment:

And there's always the classic emergency room scenario in which demand for those ER resources balloons because the poor have nowhere else to go and because minor problems go untreated until they are emergencies...

This happens because hospital emergency rooms aren't allowed to turn people away, even if they can't pay. For poor people, this artificially lowers the price of emergency care with respect to non-emergency care, which distorts the healthcare decision-making process. From the indigent patient's point of view, emergency care is cheaper than non-emergency care. And when something has a low price, people buy more of it.

Since non-emergency situations can progress into emergencies if untreated, this creates some perverse financial incentives for poor people to avoid preventive medical care. But what are the alternatives? Refusing emergency care to people who can't pay? Paying for every doctor's visit, no matter how unnecessary? There are no easy answers.

(And, just to mix things up a bit, some statistical evidence suggests that the benefits of preventive care aren't as clear-cut as we might suppose.)

Random shots around the web:

• Federal conspiracy charges coming in 5...4...3...2...
• Turns out many diagnoses of Shaken Baby Syndrome weren't actually caused by people shaking the baby. Lots of people may have gone for jail for mild accidents that took place days before the murder-by-shaking supposedly occurred.
• This sort of thing is why I'll never let animal-shelter employees lecture me about caring for animals. Read all these comments for more.
• I have to admit, I really was hoping there'd be some truth to this. That would have been awesome. It would be the ultimate weird ending.

(Hat tip: Radley)

I'm probably being unfair, but it seems like Supreme Court Justice Clarence Thomas is a bit of a dumbass. (Or maybe, as fair Jennifer says, we should have listened to Anita Hill.) That's really the only way to account for his explanation of why it was okay for a school principal to order a strip search of a 13-year-old girl to try to find some ibuprofen.

Thomas was the only Justice that thought this was okay. There are a number of ways he might have tried to justify his opinion---stare decisis, in loco parentis---and for all I know, he used them. But this is just plain stupid:

In this case, officials had searched the girl's backpack and found nothing, Thomas said. "It was eminently reasonable to conclude the backpack was empty because Redding was secreting the pills in a place she thought no one would look," he said.

I think that's what mathematicians derisively call proof by ignorance: It must be true because I can't think of any other possiblies.

In the unlikely even I ever meet Justice Thomas, I'm going to accuse him of smuggling crystal meth in his rectum. By his own logic, he ought to let me check, right?

(I know there's more to it than that, but the stupidity here just pisses me off.)

Thomas adds this:

Thomas warned that the majority's decision could backfire. "Redding would not have been the first person to conceal pills in her undergarments," he said. "Nor will she be the last after today's decision, which announces the safest place to secrete contraband in school."

"Nor will she be the last"? What the fuck? They did search her underwear, and she didn't have any drugs. I always assumed Thomas just looked like he was sleeping during oral arguments, or that he was bored because he'd already read it all in the briefs, but maybe he's really just not paying attention.

It's also a question of values. If the cost of keeping dickheaded school administrators from looking in little girls' underwear is that a little more contraband gets into our schools, I, for one, am okay with that.

Now that Michael Jackson is dead, I'm not going to miss him. I didn't know him. I don't think many people did. I do, however, miss the Michael Jackson I once thought I knew, back before it all got so weird. You see, there was a time...

I never really loved Michael Jackson's music, but I loved his music videos. Back in the early 1980s, creating videos for songs was still a new and controversial idea. I liked the videos, but a lot of people, including a lot of artists, thought they were a distraction from the music. Record companies made videos, but they didn't take them seriously.

Michael Jackson helped change all that. At a time when a music video might have a budget of $40,000, he spent about a half-million dollars on the Thriller video and got a major motion picture director to film it. Nowadays, many motion picture directors get started with music videos and think nothing of producing one for musicians they like, but back then nobody had heard of such a thing.

I admired Michael for taking this fledgling artform to heart and treating its fans with respect.

It may sound odd, but I also admired Michael Jackson for his willingness to let Weird Al Yankovic parody his songs. Musicians with considerably less fame and talent took themselves too seriously to let Al do his thing (I'm looking at you, Coolio!) but Michael Jackson was always willing.

That's the Michael Jackson I miss. Something bad happened to him a long time ago.

A few random shots around the web:

• When I heard that bartender-beating Chicago cop Anthony Abbate got a light sentence, I wondered if someone who wasn't a cop did the same thing, would he get off as easy? When Moser did some research, and the answers is probably yes. It was, after all, just a barfight.
• Savana Redding wins her case against ibuprofen-seeking perverts.
• I didn't love the new Transformers movie, but I liked it more than Roger Ebert did.
• Why? WHY? Why do they keep letting M. Night Shyamalan make movies! At least it's an adaptation, so maybe it will have a point.

Chicago police officer Anthony Abbate---caught on video beating up a young woman bartender---has been sentenced. He got probation.

Note that Abbate is still a police officer. The Independent Police Review Authority has recommended he be fired, and it sounds like he was convicted of a felony, which should disqualify him for the police force, but God only knows what the Police Board will do.

Chicago's Police Board is often described as the "civilian review" component of the disciplinary system, which sounds good, but as I understand it, the only thing they can do in police disciplinary actions is to either approve, reduce, or eliminate the recommended punishment. In other words, it's a way for the city political structure to protect officers who have connections.

My guess is that Abbate doesn't have any connections good enough to survive so publicly disgracing the department, but...this is Chicago.

The thing is, Abbate's not the real problem. He's just a drunken fool. Notice, however, that there's been no word in months about the allegations that other officers tried to cover this up and intimidate witnesses with threats of arrest. That would be a criminal conspiracy within the police department.

Nothing to see here. Move along.

Illinois's own Jeremy Richey does some actual journalism and interviews California civil attorney Brian Pedigo about his experience as a juror for a murder trial. He talks about deliberations, and what he thinks each side did wrong or right.

By the way, he has one piece of advice for the prosecutor that I'd like to second if I'm ever on a jury again:

When handling a firearm, do not point it at the jury -- have gun manners.  Point it always at the ground, even though it's unloaded. 

Yeah. It may give us jurors a sense of what it was like to be the victim, but it's also going to give me a sense that you're an irresponsible jackass.

Scott Greenfield, font of so much that I can riff off of, has a complaint about gang experts who try to paint every action by the defendant as related to his membership in a gang:

If a defendant has a tattoo, the expert will testify that tattoos are "brands" typically worn by gang members.  If the tattoo happens to say "Tiffany", then the testimony is changed ever so slightly to accommodate, by the expert then saying that gang members typically brand themselves with the names of their girlfriends.  You get the message.  No matter what the evidence, the defendant can't win.  It's always connectible to being a gang member, according to the expert.

Aside from the implication by Scott that police gang experts are pulling answers out of their ass don't really know much about gangs, I can also see something of a logical problem with the so-called expert's theory. The cop's statement that gang members have specific types of tattoos is a logical statement: If he's a gang member, then he'll have a specific tattoo, say of a snarling dog. If we try to get all mathematical, the statement it would look like this:

gang member ==> dog tattoo

But that's not what the prosecutor wants the jury to believe. The prosecutor doesn't care about the tattoo. He's trying to prove that the defendant is a gang member. He's trying to prove the converse:

dog tattoo ==> gang member

The problem is, as a matter of math, the truth of a statement does not imply the truth of its converse. Even if it's true that all gang members have dog tattoos, it doesn't mean all people with dog tattoos are gang members. It's easier to see with a more obvious example: All gang members have noses:

gang member ==> nose

but that doesn't in any way prove

nose ==> gang member

That is, not all people with noses are gang members.

So why is it that "all people with noses are gang members" is obviously wrong, but "all people with dog tattoos are gang members" seems plausible? The answer is a little more complicated because it involves the real world, the statistics of experimental design for testing hypotheses, and the availability heuristic.

Suppose you wanted to test the hypothesis "all people with X are gang members," where X is either "noses" or "dog tattoos." You'd do it by setting up an experiment---in this case a survey of the population---to look for counterexamples to the hypothesis. That is, you'd try to find people who have X but are not gang members. Finding even one proves it's not absolute truth.

The real world is a little fuzzy---especially in the social sciences---and our methods of testing are less than perfect, so real-world hypothesis testing usually involves testing a statistical relationship. In this case, we'd be testing "people with X have a high probability of being gang members" and we'd still be looking for people who have X but are not gang members. The more such counterexamples we find, the lower the probability of a relationship.

A scientific test of this kind of hypothesis would involve conducting random surveys and gathering enough data to reach statistically reliable conclusions. But when it's not a scientific investigation, when it's just us trying to figure something out, we don't do a scientific study. We just try to think of counterexamples.

When X is "noses" it's easy. We all know lots of people with noses, and nearly all of them are not gang members. Such a large number of counterexamples makes it easy to destroy the hypothesis that all people with noses are gang members.

When the hypothesis is "all people with dog tattoos are gang members," it's a little harder to think of counterexamples, simply because dog tattoos are so rare that we may not know of anybody who has one. Our inability to find counterexamples makes the hypothesis seem plausible.

This way of thinking is called the availability heuristic. We assume something is likely because we can easily bring to mind examples. The more examples we can think of, the more likely we believe it to be.

Although the availability heuristic is not as rigorous and generalized as conducting a scientific investigation, in essence it's a similar process. A scientific investigation gathers data using randomized trials, controlled studies, and careful surveys and then analyzes the data to arrive at results. The availability heuristic does the same kind of analysis, but it works only on the data we have in our heads at that moment. There is no data gathering process.

The availability heuristic is a perfectly valid way of thinking about our day-to-day world, about which we have lots of data but don't have time to gather more. It tends to fail us, however, when thinking about parts of the world with which we are unfamiliar. That's why we have science.

What are the practical implications of all this philosophy when it comes to thinking about gang experts? Probably not much. But if I ever find myself on a jury listening to this kind of testimony, I hope I'll keep a few points in mind.

Basically, any assertion of a general rule---all fish have fins, all cats have fur, all people with dog tattoos are gang members---is equivalent to an assertion that counterexamples do not exist: There are no fish that don't have fins, there are no cats that don't have fur, there are no people who have dog tattoos who are not in gangs.

(Actually, the gang expert will likely invoke several indicators of gang membership in combination---gang tattoos, gang hats, gang shoe laces, gang jewelry---and the standard in the courtroom is not that there are absolutely no counterexamples, but rather that counterexamples are rare enough that they do not constitute a cause for reasonable doubt. Nevertheless, an assertion of a general rule is still an assertion about the rarity of counterexamples.)

So if you hear someone say that dog tattoos are sign of gang membership, you should be wondering why that person believes there are no (or few) counterexamples. Remember, it's not just about gangs. It's also about tattoos. If he's really an expert on gangs, he may very well have observed that gang members have dog tattoos, but how does he know that non-gang-members don't have dog tattoos as well? He'd have to know a lot about tattoo prevalence in society at large. In addition to being a gang expert, he'd also have to be a tattoo expert.

Or at least he'd have to have received reliable information from a tattoo expert or be aware of a scientific study of some kind that addressed the issue. If I were on the jury, I'd want to hear about that.

Back on my latest I'm-going-to-be-blogging-about-healthcare post, reader Seth makes a few points in the comments. Here's the first one:

Yes, You Do Have Staff, But You've Got to Be Staff, First Too Both First and Too

Twitter, the Favor Economy, and the Power of Crowds

"Yes?"
"Hey, Bob?  It's Joel.  I know it's 2:30 in the morning, but there's water pouring out of the ceiling in my kitchen, and -- "
"I got it. Put on a pot of coffee."
"That'll stop it?"
"Nah.  But I'm on my way, and a cup of coffee would be nice.  Don't worry.  We'll get it done."

Request: anybody got a link to a good javabuttons generator? I'm thinking something like http://twurl.nl/vcpzki , but Open Source.

Check this site out. Tons of great java ideas if you have never been here: http://www.dynamicdrive.com/

Anybody got a shortcut to information about case C 05-04532 JW in US District Court Northern District of California, San Jose Division?

Ask, and ye shall receive. http://is.gd/B7NB

[I started to comment on this over at Simple Justice, but there's so much going on here that I decided to do my own post. As usual these days, it's a bit late.]

I may be a libertarian, but I'm not a cop hater. Sometimes, however, cops make it very hard not to hate them. Go read Scott Greenfield's story about a cop who hit a surrendering suspect and put him in a coma. Here's a bit of a description from the source article at the Seattle Times:

Seattle lawyer Sim Osborn, who has been retained by Christopher Harris' family, said both deputies wore black uniforms and yelled to Harris from a half-block away in a darkened alley. He said one witness reported the two deputies didn't identify themselves as law-enforcement officers until after Harris began running down the alley sometime after 1 a.m. Sunday. Osborn said Harris stopped running a few blocks away, apparently after realizing the two men chasing him were deputies.

"He was blindsided," Osborn said of Harris. "It was not a tackle but an absolute, bone-crushing hit." Harris' head struck a concrete wall. Since then, he's been in a coma and on life support at Harborview Medical Center.

There's video of the hit too, but what apparaently sets Scott off is the comments over at OfficerOne.com. Here's an example he quotes:

Great job Deputy! That suspect FLED on foot and turned toward you. What were his intentions when he turned, fight, weapon, surrender? We may never know but you did right and will be vindicated!

Yes, exactly, what were his intentions? I can just imagine the officer's debriefing:

I was chasing after him, yelling "Stop! Police!" And then the crazy bastard stopped! Who knows why he did that? Naturally, I had to take him out!

That reminds me of a case a few years ago where a police officer pulled a car over, walked up to the driver's window and asked him for his license. Then the cop shot the driver. His reason? The driver suddenly reached for something.

I'm no expert, but this seems to be a common pattern with police violence against innocent people: The cops form the incorrect opinion that someone is a bad guy---either through mistaken identity or misfiring intuition---and then fit all subsequent behavior into that pattern. Even when the suspect does something innocent and cooperative, the cops fit it into their bad-guy model of the situation and interpret it as strange and alarming behavior.

(The Amadou Diallo incident developed in this manner. Diallo was just standing on his own front stoop, but police thought he was a bad guy who was up to something. When they eased their car closer, he didn't slip away like most street people would, which really freaked them out. Then, when they got out of their cars, he tried to re-enter his building, which freaked out the cops even more, until one of them opened fire.)

There are other observations we can make from this incident. For one thing, the whole account starts with a lie. It's a lie that's enshrined in the law. It's a lie so common that nobody even realizes it's a lie anymore, not even the lawyer for the victim's family:

Seattle lawyer Sim Osborn, who has been retained by Christopher Harris' family, said...one witness reported the two deputies didn't identify themselves as law-enforcement officers until after Harris began running down the alley sometime after 1 a.m. Sunday...

Other witnesses thought the deputies yelled "police" immediately.

Here's the lie: Yelling "Police!" is not identifying yourself as a police officer. Yelling "Police!" is claiming to be a police officer. It's something anyone can do, including strangers who want to stop you from running so they can rob you.

Pretending that only real cops are capable of yelling "Police!" is some kind of shared delusion. When a drug raid goes bad, one of the key questions is always whether or not the cops announced before entering, as if---just before the shattering windows and splintering doors---hearing someone yell "Police!" is all it takes to make the occupants feel calm and reassured that all is well.

This incident took place in the street, but I think the same principle applies: When strangers make threatening moves toward you, it's kind of hard to be reassured by what they're saying at the time. Cops know this, because this is exactly how plainclothes and off-duty cops get shot by other cops.

A few other notes:

• The method the cop used to subdue this guy---running straight into him with arms extended---is that a technique he learned at the academy? Does it have a name? Does it appear in any of the training manuals?
• When asked to justify a decision, cops often say it was based on their experience and training. This cop chased and jumped the wrong guy, and the takedown was totally unnecessary. Does that mean that the next time this officer is on the witness stand testifying that he knew something based on his "experience and training," the defense lawyer can bring up this incident as an example of how his experience and training have steered him wrong before?
• The calousness of some of the commenters is disturbing. There is nothing in the video or the news story indicating that the victim had it coming.
• Was this another case of the old police street-justice rule that if they have to chase you, they'll beat you?

The short-term thinking by some of the commenters is depressing. To me, it looks like the officer committed a violent crime against the guy he hit. But maybe there's some excuse for what he did. Maybe, given what he knew at the time, this seemed like the right thing to do. A lot of commenters focus on that.

But just because the officer survived the encounter and won't be convicted of a felony doesn't mean it was good policework. That would be setting the bar far too low. An innocent person was gravely injured. The actual offender probably got away. The lawsuit will cost hundreds of thousands of dollars. The Seattle police look like a bunch of thugs.

And for what it's worth, I still think the cop was trying to deliver some street justice...just maybe not that much.

While honoring our nation's fallen soldiers, I'm also going to take a moment to remember those who died in our longest and most senseless war.

[No, this isn't a repeat of this episode of "Mike and Me," from a couple of years ago. More on that at the end. This article, slightly tweaked, is crossposted on TrueNorth, my LiveJournal and on the Forum, as well as here, where comments are welcome.]

*ring*
*ring*
*ring*

"Joel Rosenberg."

"Will you hold for Commissioner Campion?"

"No." *click*

*ring*
*ring*
*ring*

"Joel Rosenberg."

"Will you hold for Commissioner Campion?"

"No.* *click*

*ring*
*ring*
*ring*

"Joel Rosenberg."

"Mike Campion here. Got a minute for me?"

"Sure, Mike. Happy to talk to you. Not happy to get a call to be put on hold by His Most Puissant Excellency Herr Commissioner Campion's secretary."

[long pause; deep breath]

"Fair enough. I see you've been having a bit of fun with that Metro Gang Strike Force story."

"Yup. I laugh so that I will not cry. Been following the popup cartoon stuff?"

"Constantly."

"I haven't had so much fun since I walked out of your office that time you summoned John, Professor Olson and me to hear your sermon. It's dreadful, and I guess it's better to laugh than to -- "

"You walked out a scant fifty-eight minutes into a one-hour meeting, Joel."

"True. Wish I'd had a camera. Loved your expression. I did thank you for the coffee, though."

"Yeah."

"So, what can I do for you, Mike?"

"I take it you think I really stepped in it."

"Well, yeah. Piles of cash and thirteen cars disappear -- on your watch -- and first thing you do is carefully not order the perps' offices sealed?"

"I didn't think -- "

"Correct. You didn't think that, after the announcement that there was going to be an investigation, things might disappear there. When you're going to raid the Rolling 60's Crips, you usually hold a press conference in advance? Not exactly sure I agree with your police work, there, Commissioner."

"I guess that looks bad."

"Yeah.  Mike, didn't I read somewhere about people going to prison for tipping off the target of a raid?"

"Well, I --

"Looks like you announced that there was going to be an opportunity to steal the horses before the barn got locked."

"I know. I didn't mean to, but -- "

"Whatever."

"So what do I do now? I mean, these guys do a lot of good work, and -- "

"I guess you could issue another statement assuring the public that you don't think any evidence of criminality will now be found, what with that head start you gave the perps, and all. Wonder where all that cash and those cars got to."

"It's probably just bookkeeping errors."

"Sure. Cars often disappear in bookkeeping errors. Happens all the time. In Narnia."

"Do you have any constructive suggestions? I mean, we gotta do something to win back the public trust, and -- "

"Nah. You're not going to do the obvious, so -- "

"I don't see what's so obvious."

"Yeah. At least thousands of dollars and more than a dozen cars disappear while in the possession of the Gang Strike Force, and you don't see what's so obvious. But you've got a nice little, slow investigation that won't show anything as long as it doesn't go deep, and the perps had time not only to lawyer up, but to flush the evidence, unless you -- "

"I'm going to hang up if you don't give me one constructive suggestion."

"Hang up if you want, but I'll give you one way anyway. Not the only possibility, but I'll make it easy for you: Get on the horn to Susan Gartner. County Attorney, Ramsey, where some of this money appears to have disa -- "

"I know who she is."

"Good. Tell her you think it's in her interest to bring on a special prosecutor, give him a staff, and convene a grand jury. And tell your you've already talked to a few people, and you've got some suggest -- "

"Special prosecutor?"

"Yeah. You don't want somebody who needs these cops to make cases to be the one investigating -- and maybe prosecuting -- them. Even if he looks real, real hard, and doesn't find anything -- and, shit, there's got to be some clean cops on the Gang Strike Force, after all, no? -- it won't clear their names, and it won't nail the crooks who 'lost' all that money and all those cars. And let's not get to their splendid Hawaiian vacation.

"So instead of getting up in front of the press and announcing that you're maybe going to eventually hire some unnamed guy who has scored a lot of points in slam-dunk Federal prosecutions and some ex-FBI guy who may or may not be able to find his ass with both hands, and do that before the evidence has been secured, now that you've screwed up --

"And screwing up by saying in advance that they probably wouldn't find any evidence of criminal wrongdoing, like I did -- "

"Stop interrupting. Just get somebody with real prosecuting experience in Minnesota, who isn't in the game anymore, and let him hire on some staff who know how to look. I know one guy; you know more, and Gartner knows more than you do. Tell him to hire some clean, retired cops, who still have their current POST licenses, and swear 'em in. Kaplan* is about to retire out of EPD, and, hell, Lex Kent* used to work for you, even though he's got that new gig. I know some; you know more. A forensic accountant or two -- have him follow the money. See where it leads.

"And I'm sure you know who should be leading this, or on the task force, right?"

"Hell, no. I mean, were it me, I'd pick up the phone to Ya'acov Smalls* and see if he'd do the the lawyer part. Smalls is tough and honest, and he's prosecuted enough guys, after all. Both of the Turk* brothers are retired, but they've still got their licenses, and you know they're straight arrows. Don't know what they'd say if you asked them, but how much stink do you think they like on the badge? Billy Mitchell* would probably love to run the financial and bookeeping side of it -- he likes to keep his hand in -- and, hell, you've already got Wong* at the BCA to run the computer forensics side of it.

"But what do I know? I don't have the connections you do; you're the state's top cop, and I'm just a balding, middle-aged Jew writer who knows a few people. Finding one honest former prosecutor and six honest guys who used to carry badges and do keep their word and would say yes to this should take you about ten phone calls. If I have to guess -- "

"You don't."

"You called me, Mike. Don't interrupt so. As I was saying . . . if I had to guess, a real thorough investigation would exonerate a bunch of guys, and might just convict a few. I dunno. But, either way, it would do something to persuade people that you really want to get to the bottom of this, and not apply a slow-rolled coat of youknowwhat."

"Yeah. I see your point. Get to the bottom of it, even though we screwed up by announcing the investigation before we preserved the evidence."

"Yup. Admit the screwup, do your best, clear the innocent and arrest the folks you've got reason to think are guilty . . . and let the system handle it while you move on. Glad you called?"

"Not really."

"Didn't think so."

"Hey, I'm just trying to help, Mike. Really."

*click*

[Author's note: the previous episode of "Mike and Me" wasn't fictional. This one is fictional. Yes, published reports indicate that the real Campion did everything that the fictional Campion admits to in this fictional dialog -- he says he's appointing some former Fed prosecutor and some former FBI guy to look into things; he didn't arrange to have the Gang Strike Force HQ sealed and guarded -- that only happened after Chris Omodt was informed, according to the Star Tribune's Randy Furst, that "some Strike Force investigators turned up at the agency's New Brighton headquarters after hours on Wednesday to remove items from the offices." Maybe those items were just keepsakes of the leis that they'd gotten on their Most Excellent Taxpayer-Funded Hawaiian Vacation. Yes, there really are real people behind those names I gave the fictional Campion; I know them all, and have talked to none about whether or not they'd be willing to look into this, but they're all honest guys -- they'd either pass, or they'd do it.

[And, no, Campion didn't call me. I told you this was a story, didn't I?]

________________________
* Not the real name.

Home at last.

Last I saw, Dad was discussing his care with one of his nurses. He will always be my Dad, but he's no longer by day-to-day responsibility.

Time for me to go to bed with the wife and the cats.

Last August, I boldly announced that I would begin blogging more about healthcare.  Like most such announcements here, it didn't work out. I had figured the big story for the next administration would be healthcare, but just days later the economy blew up.

The story of the Obama administration is turning back toward healthcare now, and I'd still like to learn about healthcare issues, so I'm finally getting around to starting some research.  (My recent experiences with the healthcare system probably have something to do with it.)

Before I actually learn anything, I thought I'd document some of my thoughts and intuitions about healthcare and ideas for reform, so that I can compare my current biases with my more informed opinions in the future.

So, in no particular order, here's what I believe or suspect right now:

• I'm not entirely convinced we have skyrocketing out-of-control healthcare costs.  Our total healthcare expenditures are rising, but that's because (1) our population is getting older on average so we need more healthcare, and (2) healthcare technology is getting better, so there's greater value in buying it (kind of like the reason most households have higher computer expenses today than they did 25 years ago). This is normal.
• The only healthcare externalities are infectious diseases.
• The reason some people can't get healthcare is because it's a scarce commodity: There aren't enough doctors, hospitals, nurses, drugs, and medical equipment to give everyone the care they want.  That some people can't afford healthcare is merely a symptom of its scarcity.
• Any healthcare reform plan that does not increase the supply of healthcare---more doctors, hospitals, nurses, drugs, and medical equipment---cannot possibly provide more care.  It can only change who gets the care.
• Lots of people say you can make healthcare cheaper with more efficient handling of medical and billing data.  I believe this is true, but that the overall saving will be small compared to the total for healthcare.
• Some of the cost is due to protective barriers to entry in the medical profession.  Many routine tasks performed by doctors could be performed by less skilled people.  The emergence of low-cost clinics staffed by nurse practitioners is a step in the right direction.  If more efficient data processing is going to have a serious effect on medical costs, it will be by enabling more care to be provided by less-expensive labor.
• As long as healthcare remains scarce, we will have to ration it somehow, either by price or by insurance claims processing or by government rules.  There will always be people who can't get what they want.
• The diseases you get are somewhat random, the accuracy with which you're diagnosed is somewhat random, and the outcome of your treatment is somewhat random.
• All that randomness amounts to risk, and the presence of risk means that insurance---private or public---will be an unavoidable part of healthcare for the foreseeable future.
• The health insurance market is perverse in that the assymetry of knowledge runs opposite to the usual direction of most markets:  The person buying health insurance almost always knows more about their health than the seller of insurance.
• Under the wrong conditions, that can cause massive adverse selection---where only those most at risk bother to buy insurance.
• Medical care is very complicated, so healthcare buyers---patients---don't usually know much about what they're buying.
• Much of what we call health insurance---especially coverage for routine medical procedures that people can pay for themselves---is really a legal way to dodge taxes:  Our employers pay for medical insurance with pre-tax dollars, but if we had to pay those fees ourselves, we'd pay with post-tax dollars.  This distorts and obscures the insurance market.
• If not for the tax advantages, most people wouldn't buy non-catastrophic health insurance.
• The problem of pre-existing conditions is a particularly ugly feature.  If you have a chronic $25,000/year disease, nobody will want to insure you for less than $25,000/year.
• One solution to the problem of pre-existing conditions is to make health insurance companies responsible for the lifetime costs of any condition discovered during the period of coverage.  This is like medical malpractice insurance, where a lawsuit many years later will still be covered by the company that held the policy at the time of the doctor's mistake.
• A robust system of post-discovery specialized re-insurance may make the process more efficient.  For example, if a covered person is diagnosed with lung cancer, their insurance company could pay a lump-sum premium to a company that specializes in lung cancer to cover all future treatment.  These companies would have strong incentives to improve patient care in order to cut costs.
• Private insurance should probably be backed up by the government so that failed insurance companies do not leave people uncovered---perhaps policy blocks could be bid out to other companies.
• Any government insurance should be at least partially re-insured on the private market to establish realistic pricing.

Some of this must be wrong, much of it could be wrong, but I doubt it's all wrong. We'll see.

I can hear the Maury Povitch show from here. Woman says her man is cheating on her. He denies it. She got three sexually transmitted diseases while they were together. Maury's going to put him on a lie detector. Gosh, I wonder what it will say.

Update: Liar.

So this guy named Richard Wolf is on the job at the Shelby City Wastewater Treatment Plant, where he's using his work computer to surf porn sites. At one point even visits Adult Friend Finder and uploads a nude photo of himself.

He gets fired. No surprise.

This, however, is a bit more surprising:

Wolf was convicted on state charges for three counts: unauthorized access to a computer, a felony; theft of services in office (essentially for depriving the city of his paid services while he conducted the unauthorized activities on a city computer on city time), which is also a felony; and solicitation of prostitution, a misdemeanor.

He was sentenced to 15 months and a $5,000 fine for the two felony convictions and ordered to pay the city about $2,400 in restitution for personal business on city time. On the misdemeanor solicitation charge, he was sentenced to 60 days (to run concurrently with his other sentence) and a fine of $500. His sentence was later reduced to two and a half years in "community control."

The solicitation charge is apparently legitimate because he tried to hire someone called "Mistress Patrice" (if we accept for the sake of argument that this is the state's business).

The hacking charge is the big news at Wired, because Ohio's anti-hacking statute includes an exceeding-the-scope clause:

The Ohio hacking statute reads in part that "No person, in any manner and by any means, including, but not limited to, computer hacking, shall knowingly gain access to, attempt to gain access to, or cause access to be gained to any computer, . . . without the consent of, or beyond the scope of the express or implied consent of, the owner of the computer, . . . or other person authorized to give consent."

The appellate court wrote that Wolf's conduct was "beyond the scope of the express or implied consent" and the charge of unauthorized use of a computer was based upon sufficient evidence.

Thus, any use of a computer for an unauthorized purpose---checking your personal email, paying your bills, maybe even just surfing the blogosphere---can earn you a felony hacking conviction. Violate your company's computer policy, go to jail.

Then there's the absurd "theft of services" charge, which stems from the fact that the time he spent surfing is time he wasn't doing his job. It's crazy that this is a crime. Whether an employee is doing the job or goofing off is pretty much between him and his employer. This is why we have civil courts. Unless it's part of an organized extortion racket, there's no way a quality-of-work issue should trigger a prosecution.

After all, the reverse never happens. If Wolf's employer had cheated him out of pay by failing to follow the overtime policy, they might have been fined by the labor department, but no one ever would have prosecuted his boss for slavery.

As it happens, Wolf beat the theft of services charge on appeal. The judge said the prosecution failed to prove that he didn't perform the duties for which he was hired. I guess you can't convict for theft of services if the city got all the services they paid for.

In fact, although Wolf was suspended after his activities came to light, he was reinstated and then promoted. His employer only fired him after he became a convicted criminal.

Scattered thoughts over the last few weeks surrounding my mother's passing.

• Keeping track of everything going on would have been so much harder without the internet and mobile phones.
• My dad was in a VA hospital, and my mother was in a private for-profit hospital. I don't think it's just libertarian bias that makes me like the private hospital much better.
• I completely lost interest in watching House while my mom was in the hospital. It hasn't returned.
• It was incredibly frustrating trying understand what the doctors were saying about my mother's chances. They hate to say there's no real hope, even when there's no real hope.
• The hospice workers, on the other hand, were very clear. It was a relief to be given a direct answer to a direct question.
• On my mother's last day, a hospice nurse called to tell me that based on certain signs, my mother was "actively dying." What a strange turn of phrase that is...yet obvious in its meaning.
• My mother died on the exact same day of the year as my wife's mother.
• My mother was quite vehement that she wanted no funeral or memorial ceremony. She stopped going to other people's funerals many years ago---she couldn't stand having to remember them all that way---and so she didn't want a ceremony for herself either. My wife and I are okay with her choice, but I think some of my mom's friends are a little disappointed. I can understand that. But I also know what my mother wanted.
• Empty funeral homes are creepy. I've seen way too many horror movies.
• When we were talking with the funeral director, she asked us if we wanted a notice in the newspaper. I thought about it---perhaps people who know my mother but weren't in her address file would find out about her if we put in a notice---but ultimately decided it wouldn't do much good. As it happens, my eulogy for my mother is the top result for her name on Google and Yahoo. I don't think a routine death notice could have done that.
• My mother died of pneumonia, probably caused by an infection. You don't catch infectious diseases from nowhere. You catch them from other people. Since my mother rarely left her home, she must have caught it from a visitor. I wonder which one of us it was.
• I keep stumbling over phrases like "my parents' apartment" and "mom and dad's place." That's probably going to happen for a while.
• I've had a few of those moments where I imagine my mom's reaction when I tell her something and then remember that I can't.
• Then there are those times where I remember something I was supposed to do for my mother but kept forgetting. Over maybe two seconds I go through feeling upset with myself for not doing it, then feeling relieved that it no longer matters, then feeling guilty that I felt relieved.
• When I moved into my parents' place, I was pretty careful not to disturb the operation of the household. I tried to always put everything back the way it was, and I bought the exact same groceries my mother had. I'm slowly realizing there are things I can change, such as putting pots and dishes on high shelves and buying gallons of milk instead of the half-gallons my mother could lift. I can also rearrange the couch cushions and leave the remote control wherever I want.
• We're starting to clean my mother's stuff out of the apartment. My mother had a lot of keepsakes, and it feels very wrong to contemplate throwing away things that she held onto for thirty or forty years. It's the most vivid reminder of her passing. I'll probably keep a few of her things for no good reason.
• It doesn't bother me that it's Mother's Day...but I'm glad all the Mother's-Day-themed commercials are over.

In a comment to an earlier post about USLaw.com, someone calling themselves "d." wrote:

There is still a nofollow tag, at least on links to Scott's most recent post (or most recent as of a few minutes ago).... it seemed from comments at SJ that the nofollow tag was an issue in terms of something technical I do not understand.

I'm not a search engine guru, but let me take a shot at explaining.

Search engines such as Google try to estimate the value of a page based on how many other pages link to it. Say you write a blog post about Admiralty Law and Jet Skis, and it's a really great blog post about Admiralty Law and Jet Skis, so lots of other bloggers post message saying "Hey, check out this cool post about Admiralty Law and Jet Skis" followed by a link to your post.

Google will notice all those links and remember them. Then, the next time someone does a Google search for Admiralty Law and Jet Skis, Google will remember your page that talks about Admiralty Law and Jet Skis, and it will remember that your page had a lot of links from other pages that talked about Admiralty Law and Jet Skis.

Google takes all those links as a "vote" for your page, so if you have more inbound links from other high-value pages, Google assumes your page is high-value as well. If Google's link following algorithm decides your page is high-value, it will put your Admiralty Law and Jet Skis page near the top of the result list for any search involving "Admiralty Law and Jet Skis."

Google's estimate of your page's value is crudely summarized by your Google PageRank, although Google supposedly uses more complicated measures internally. (Google doesn't reveal the details of its search algorithms.)

There's a sort of flow to all this. Your site's value is determined by inbound links from other sites, and your outbound links help the value of pages you link to. For the kinds of people who worry about their position in Google search results, this is the most important thing in the world.

For various reasons, Google and other search engines allow you to mark a link as "nofollow", which provides a way for you to tell the search engines that an outbound link on your page is not a vote for the linked page.

For example, comment spammers like to post links to their pages in your blog comments in the hope that Google will find the link and vote up their page rank. You can discourage this by marking all such links "nofollow". Major blogging engines like Blogger do this for you.

It's also what USLaw.com is doing to all the people whose blogs it lists in its directory. They (he?) use "nofollow" on the link, which tells Google not to count the link.

Why would they do that? I'm guessing it's because they want their content to rank as high as possible in search results (so people will visit their site and click on their ads), so they don't want to vote up other pages that have the same content.

The end result is that being listed in USLaw.com---or having your content republished on their web site---does nothing to help your rank at Google. USLaw.com is taking from blawgers, but giving nothing back.

And before you ask, yes, every link to USLaw.com on my site is marked "nofollow".

When Scott Greenfield complained about an outfit called USLaw.com which was republishing his blog articles in their entirety, I didn't think they were doing anything terribly wrong because Scott's blog publishes a syndication feed, and this is what syndication looks like.

Scott disagrees. He doesn't think that's proper use of a feed, and he says my position indicates that I don't think my original content has value. My co-blogger Joel also disagrees with me, but he's less diplomatic: "the SOB is selling my stuff, without my goddamn permission." Since intellectual property lawyer Marc Randazza agrees with both of them, I have to concede. The rules must have changed since the wild-west days when I learned about RSS feeds.

In some ways, my disagreement with Scott and Joel is a culture clash. I do think my original content has value, but I have different ideas about how to exploit that value. Scott is blogging about his profession, and Joel is a professional author, so I think they have more invested in distributing their original content. On the other hand, I'm blogging for fun about stuff outside my area of expertise.

It's like they're Metallica and U2, and I'm just an indy garage band. They're worried about the threat of piracy, but for my purposes, obscurity is the greater threat.

Anyway, USLaw.com has responded to this in a most entertaining way.

Dear Mr. Greenfield,

I was sorry to hear that you are unhappy with the way our web site has made use of your content. We appreciate the hard work you've put into your blog, and we felt our readers would appreciate it as well. In addition, many bloggers feel they benefit from being listed in our directory. Nevertheless, it was not our intent to offend you or make illegitimate use of your content, and in light of your objection, I have removed your blog from our site. I hope that we can pursuade you to reconsider at a later date.

is what *I* would have written.

The folks at USLaw---which may just be a guy calling himself "Gregory Chase"---took an...alternative...approach:

Scott Greenfield - Simply Unjust or Forgetful?

Some of USLaw.com's responses to Scott Greenfield's erroneous accussation have been censored and removed from Simple Justice's comment thread. What follows is an updated and less passionate interim comment.

Scott Greenfield is a prolific and rambunctious law blogger with an admitted yen for controversy (perhaps one that is occasionally greater than his yen for fairness). He represents the best and unfortunately, in this case, the risks of what the law blog community offers (one sided intellectual bullying). We are surprised by his unjust behavior in this particular matter.

Mr. Chase has also been leaving comments of a similar nature on Scott's Simple Justice and here on Windypundit.

So, while trying to build a legal web site---and having some success, judging by the page rank---he's decided to badmouth a top legal blogger and accuse him of censorship because he won't let him post their comments on his blog. Does he realize this makes him look unprofessional? And a little crazy?

When I titled my previous post "The Evil that USLaw.com Does," it was just a tongue-in-cheek title for a post in which I argued that USLaw.com wasn't as bad as Scott thought, but they were still making a few mistakes. After a response like this one, I think I have to reassess the level of evil upward.

(To be fair to USLaw, they also claim to have asked for and recieved permission from Scott to list his blog in their directory. They list my blog too, but I looked through my email and I can't find any requests from them. Make of that what you will.)

Seeing how Mr. Chase has responded, I can't help but think that Scott was responding to more than just the theft of intellectual property. Being a criminal lawyer, he probably encounters psychopathic personalities all the time, and I imagine he picks up the clues pretty quickly when he encounters someone who will be trouble. I think he must have had a Blink-style intuitive flash about just how much craziness was hidden behind the USLaw.com website.

Scott has put up his own post about all this. As is often the case, Joel has posted the best comment:

You know, just the other day I was talking to myself. Jdog, I said -- I call myself that -- it'd be a really smart thing to infringe on the intellectual property -- copyright, trademarks, whatever -- of a smart, prickly guy with a law degree. Maybe he wouldn't notice. If he did, maybe he wouldn't care. If he cared, maybe he wouldn't complain. If he complained, maybe I could bully him into backing down.

Scott Greenfield is pretty far from the aggressive lawyer stereotype you see on TV shows, but you'd have to be nuts to think you can intimidate him like this. I mean, really, Gregory, you're threatening to embarass him with an email? This is a guy who makes a living by telling federal prosecutors to go fuck themselves.

And have you noticed how many other lawyers are dropping in to leave comments? It's like you strapped raw steaks to your body and jumped in the shark tank.

The good news is that most of these guys are criminal lawyers. That's a good thing for you because their job is getting people out of trouble. When you get right down to it, they don't really want to hurt you.

The bad news is that Marc Randazza has also jumped in. He makes his living from these kind of lawsuits---hell, he teaches this stuff---and he clearly enjoys his work. When he says "I think it would be a worthwhile and enjoyable endeavor to sue the living shit out of 'Mr. Chase'", he's speaking as a guy who knows exactly how to do it. (Especially since USLaw.com is republishing his blog as well.)

Understand, when all is said and done, while I have not granted any rights to USLaw.com to re-publishe Windypundit content, it still doesn't really bother me. Of course it doesn't really help me either. In the last 3 months, referrals from USLaw.com have amounted to 0.08% of my traffic. I'm pretty sure I could drum up more interest by scrawling my URL on a few bathroom walls.

Addendum: Events have overtaken me. The USLaw.com site was down last night, and now that it's back, it's only publishing summaries and it's linking to the full articles at the original blogs. That's the right way to be a part of the community rather than just leeching off it.

This is the long-awaited (mostly by me) fourth post in my series about the stimulus bill. I would have got it posted earlier, but I've been kind of busy. (You might want to read the first three parts about GDP, Fear, and Spending.)

Recall that under the theory behind the stimulus, recessions happen when consumers decide to reduce their consumption to try to save cash for an uncertain future. Individually, this is often a wise decision, but collectively, the crash in consumer demand leads to a drop in production which leads to unemployment. A stimulus plan is designed to replace the lost consumer spending with government spending, with the goal of keeping production and employment from slumping so drastically.

The fundamental problem with this approach is a simple matter of microeconomics. Think about what happens when you buy something for yourself---a shirt, or a hot dog, or a music CD: You trade your money to get something you like. In particular, you trade your money for something you like more than the money you traded for it.

Say you go to the store to buy a shirt. You find one you like, and based on its fit, comfort, and appearance, you figure it will improve the quality of your life enough that you'd be willing to spend $30 on it. So, if it costs more than $30, you will leave it on the hanger, but if it costs less than $30, you'll take it.

Good news! It's priced at $25. You pay the clerk and take the shirt home. You've now got a shirt that's worth $30 to you, but you only spent $25 on it. You have made a net improvement in the quality of your life, to the tune of $5.

The difference between what you spent and what you got out if it is called consumer surplus, and it's very important: Nearly all the benefits of our modern economy eventually show up as consumer surplus, with the result that most Americans live better than medieval lords. (Sure, they had servants, but we have antibiotics, clean water, and the internet.)

Sure, consumers sometimes make mistakes---that new Bon Jovi album that wasn't as wonderful as you'd hoped---but nevertheless, when you spend money on yourself, you tend to spend it pretty well. There are two important reasons why this is so.

First of all, you are a world-class expert on yourself. When you bought that shirt, you knew the right size, the right color, the right fit, the right style of collar, the right material and so on. You might not know everything, but you know more than anyone else. And although you may have guessed wrong about that Bon Jovi CD, nobody else could have guessed better.

There are a few areas---professional services such as medicine and law, for example---where this may not be true, but for most purchases, from nail polish to televisions to homes, you are the expert on fulfilling your own needs and desires.

The second reason you spend so well on yourself is that nobody in the world is more motivated to make wise choices on your behalf than you are. If you let somebody else make these choices, you tend to run into agency problems---the people making the choices tend to serve themselves rather than you.

(For example, send someone shopping for your groceries, and instead of returning with products that closely match your grocery list, they may return with the products that were easiest to find.)

Consumers spending for themselves are having their purchasing decisions made by the best-motivated and most well-informed individuals available. The same cannot be said when politicians and government bureaucrats make purchases on your behalf. In a nutshell, this is the libertarian argument against stimulus spending.

For that matter, this is the libertarian economic argument against all government spending.

It helps to imagine the purest case of stimulus spending, which is usually described as hiring half the unemployed to dig holes and the other half to fill them. This will certainly have the effect of pumping money into the economy, as the diggers and fillers spend their hard-earned salaries, but the entire first-order effect of the stimulus is useless. All that hard labor produces nothing that improves anyone's quality of life.

This is the libertarian's fear of government spending: Government bureaucrats are likely to waste the money because they are neither motivated enough nor well-informed enough to spend efficiently. Since government spending pulls resources away from more efficient private industry, the result is a net loss of production. And that would be bad.

However, there's an escape clause: During a recession, production is below it's theoretical limit, which means that valuable people and resources are sitting idle, waiting for someone to put them to work. Clearly, giving them work, even stupid work, can't possibly pull them away from something more valuable.

That's why so many economists agree that one of the best ways to stimulate the economy is to extend the amount of money given out through unemployment insurance. It's a direct handout of money to the people hardest hit by the recession, it doesn't tempt them away from real jobs, they'll probably have to spend most of it on consumer goods which spreads the money around, and since they're spending for themselves, they'll spend it wisely.

The next best stimulus plan is probably a tax cut of some kind, perhaps aimed at people near the bottom of the income distribution who are most likely to put it to good use. One way to do this is by giving block grants to state and local governments so they won't have to balance their budgets by taxing their residents to death. These taxes are often much less progressive than federal income tax so they hit the poor kind of hard.

These two stimulus measures---unemployment payments and tax cuts---are likely to be successful because they leave the decision making to the smartest people in the economy, the consumers.

Unfortunately, that's not how the stimulus package works. I'll explain what goes wrong in my next post.

A few days ago, Scott Greenfield pointed out this paragraph in a New York Times article about Obama's thinking about law and justice:

[W]hen it came to sentencing laws, Mr. Obama led [student Adam] Bonin in a more conservative direction than the student had expected. The primary victims of black criminals were fellow blacks -- and so minority neighborhoods had an interest in keeping sentencing laws tough, he taught.

How is it that so many people---including smart people with experience in the inner city like Barack Obama---can talk about victims and sentencing and not notice that an awful lot of tough sentences are imposed for crimes that have no victims? Is that distinction---which looms so large in my own world view---just of concern for libertarians? Does everyone else really think the absence of victims makes no difference?

It's like being in one of those horror movies where only I can see that the mysterious strangers have horns and fangs. Can anybody out there hear me screaming?

It's Monday, and over at Simple Justice Scott Greenfield is complaining about marketers. Usually, he complains about people who leave comments on his blog with an SEO-friendly link back to their web site (e.g. "DWI Attorney").

I never really understood why Scott was so vehement about this. Personally, I will delete the totally gratuitous comments (e.g. "You raise some interesting points! This is a great site!"), but if someone leaves a legitimate comment, I don't object to a link back to their site. They've given me content that adds value to my blog, and I'm paying for that content with a backlink. This is how the search-engine-driven blog economy works.

This time, however, Scott is complaining about an outfit called USLaw.com which is republishing all his posts in their entirety.

Again, I'm a bit mystified by Scott's reaction. It's not like USLaw.com is scraping the content off his website. Scott publishes full feeds for Simple Justice---in RSS and Atom, both also advertised as related content in the HTML header---and USLaw.com has picked them up. This is how content syndication works.

I'm not sure if U.S. law recognizes a syndication link as granting a license, but it's common usage in the blogosphere. If Scott doesn't want other people publishing the full articles, he probably shouldn't be offering the full articles in the feed.

I've never objected to people who repost my stuff like that. Sure, they're trying to benefit commercially from my work, but I don't think it hurts me just because it helps them.

For one thing, Windypundit is only technically a commercial enterprise (I make a little scratch off advertising). Mostly, it's about getting my ideas out there where people can see them. If some other web site wants to re-post my ideas, that's okay with me.

For another thing, reposting my content is just another way of advertising my site. I think most people are smart enough to recognize a site like USLaw.com for what it is, and if they accidentally stumble onto something of mine on the site, and they like it, they can follow the link back to Windypundit.

Finally, sites like that give me a little bit of link juice. Search engines treat every link from there to here as a vote for my site.

So, my reaction to a site like USLaw.com is to check if they include me on their list of legal blogs. Having done so, however,I've decided that I don't like them using my content either.

The first problem is that they don't list me in their directory (that I can see), but they've got a page for me, and I show up in search results on their site. In other words, they're using my content to increase the likelihood of a search hit on their site, but they didn't list me in their directory, so people who find their site by other means can't find my blog.

The second problem is how they describe my blog:

This blawgger opines on Illinois statutes, law-related current events, links to content on other legal blawgs he finds interesting. He'll also write the occasional movie review and post his photography.

There's nothing wrong with the way that's written, probably because it's word-for-word the same as the description the American Bar Association's blog directory uses to describe my site. I checked a few other blawgs, and this is not a general pattern for USLaw.com---usually they just use the description in the feed---but I wonder if they stole anything else from the ABA blawg directory.

The third problem is a little more technical. The page that lists my blog includes a link back to my blog, but take a peek at the HTML that implements the link:

Go to <a zclass='snap_preview' rel='nofollow' href='http://www.windypundit.com/' target='blog'>Windypundit</a>

Note that the "rel" attribute is set to "nofollow". That little bit of HTML tells search engines not to follow the link for rating purposes. In other words, even though they're using my content, they've gone to the trouble of making sure the link back to my site doesn't help my search engine ratings. I checked around, and they seem to do this to everybody.

USLaw.com doesn't bother me the way it bothers Scott Greenfield, but he was onto something. These people may not be breaking the rules, but they're damned impolite.

What Shepherds Do When They're Bored:

(No, it's not dirty.)

(Hat tip: Lindsay)

An Interesting Way to Draw Cartoons:

(Yes, it's dirty.)

(Hat tip: Rogier)

All of this political correctness is making me ill.

Now we have to refer to the flu pandemic as H1N1 so we don't offend the pig farmers, the National Pork Board, or God forbid the pigs.The hell with that. 

From now on, I'm calling it FFKAS or the "Flu Formerly Known as Swine".

The Supreme Court's decision in Kansas v. Ventris is one of the strangest things I've seen from them in a long time.

I'm not a lawyer, but as I understand the law, it has been normal procedure for many years that once a defendant invokes his right to a lawyer, the cops have to stop questioning him. From that moment forward---all the way to end of the trial if need be----neither the prosecution nor the cops can ask him any more questions. If they do, the answers can't be used in court.

The prohibition applies as well to agents of the police. If the defendant confesses to a snitch, the snitch can testify, but if the police send a snitch to question the defendant, he can't testify to the defendant's confession because he was acting as an agent of the police.

Until now. In Ventris, the Court carved out an exception to the rule. Basically, they said that if the defendant testifies on his own behalf, a defendant's prior contradictory statements to an agent can still be introduce at trial even if the statements were made after invoking the right to counsel. The ruling doesn't seem to be limited to agents of the police, either. It looks like the police can question the defendant directly, despite his asking for a lawyer.

The court's reasoning demonstrates Scalia's boundless trust in police professionalism:

On the other side of the scale, preventing impeachment use of statements taken in violation of Massiah would add little appreciable deterrence. Officers have significant incentive to ensure that they and their informants comply with the Constitution's demands, since statements lawfully obtained can be used for all purposes rather than simply for impeachment. And the ex ante probability that evidence gained in violation of Massiah would be of use for impeachment is exceedingly small.

(See Radley Balko's continuing series of anecdotes about Scalia's new Police Professionalism.)

Scott Greenfield had some choice words about it yesterday:

Again, the reasoning is so strained as to require a few moments of reflection.  Since statements lawfully obtained can be used for any purpose, cops have a strong incentive to comply with the Constitution, and therefore have no incentive to violate the Constitution by doing precisely what they did here.  Of course, they did precisely what they did here, so apparently they have enough of an incentive to do it, as proven by the fact that they did it.  

Aside from the fact that it happened, a possibility Scalia calls "exceedingly small,"  the Court ignores the "incentive" structure when the defendant has a lawyer and the time to obtain a confession lawfully has come and gone.  At that point, the only potential for nailing the sucker is by violating Massiah, which is exactly what they did.  Moreover, when the defense seems awfully clear that it's going to be two defendants pointing fingers at each other as the shooter, the "exceedingly small" chance that the defendant will testify becomes exceeding large.

For a guy who talks so much about incentives, Scalia is remarkably daft. Sure, police would rather get a statement from the defendant that can be used for all purposes, but that just means the police want to get in as many questions as possible before the defendant realizes he should lawyer up.

Once that happens, "all purpose" statements are off the table, but the Ventris decision now allows them to gather additional special purpose statements---even though they're violating the defendant's rights---with no penalty whatsoever. It's easy to see what that's an incentive for. How long will it be before it becomes standard procedure?

When the defendant asks for a lawyer, the police will simply keep questioning him in the hope he'll say something they can hang him for if he testifies. I'm imagine they'll call it "proceeding to the Ventris interview." Or if a prosecutor thinks a defendant is preparing to take the stand, he can send an investigator to "try to get a Ventris statement." You know it's coming.

Amazingly, an even stronger criticism of Ventris comes from a prosecutor. As a criminal defense lawyer, Ken Lammers was never a true believer, and now that he's switched sides, he once again shows he's still his own man with his withering argument that Ventris is not just bad for defendants' rights, it's badly wrong.

Here are a few excerpts:

...As the Court acknowledges that violation of this right precludes the use of the evidence gained in a prosecutor's trial in chief, this evidence couldn't even be used in a perjury trial. Thus, the Court creates an exception, allowing criminal procedure alone to trump a constitutional right.

...That's correct, a US Supreme Court decision is based on a belief that it is unlikely that the defendant will testify. It's backed up by a statement that shows an amazing lack of understanding of why a statement would be taken by a police officer. The exact purpose that an officer would be taking a statement after the defendant has an attorney is to lock him into a particular version of the facts with the thought that the defendant could tell a different story at trial. After all, if the officer expected the defendant to take the stand and testify exactly in the manner most likely to lead to a conviction, why would he waste time trying to get a statement from the defendant?

Ken's whole takedown of Ventris is logical, clear, and well worth reading.

In other news, Supreme Court Justice David Souter has announced his retirement, and speculation has begun as to his replacement.

I hearby nominate CrimLaw blogger Ken Lammers. His even-handed approach and clear writing style should make for some good opinions, and more importantly, the Supreme Court clearly needs more justices who have experience practicing criminal law.

Besides, as George W. Bush's nomination of Harriet Miers showed, the Supreme Court is not just for mental giants anymore.