This last Saturday, my dad was scheduled to go home after two months in the hospital, and my wife and I were gearing up to handle it.

The end of his last hospital stay, a year ago, things had gotten ugly. After being stuck in a hospital room for six weeks, he just wanted to leave. Unfortunately, the hospital staff bungled his discharge and they had to keep him there an extra week until they straightened everything out. That was enough to turn him into an angry son of a bitch. When it was time to take him home, he was pissed as hell and very demanding.

This stay was even longer---in part because it was extended two weeks when he caught a hospital infection---so my wife and I were preparing for a long and tiring day.

When we got to his room, the staff were just preparing to shave him and wash his hair. I went down to the pharmacy to pick up his discharge medicines, and by the time I got back he was ready to go. We took him downstairs and loaded him in the car, tucked in under a hospital blanket to keep him warm.

We drove dad home in silence, and he just stared out at the new world outside the hospital. It was a beautiful Spring day. The trees were filled with new leaves, the grass was all lush and green, the lilacs were in bloom. Somehow I hadn't noticed this happening while I was visiting him every day in the hospital.

He had to struggle to make it up the stairs into the apartment, but once he got inside, he grabbed his walker and made his way to the bedroom. Despite the disturbing episodes of delerium in the hospital, now that he was home he had very little trouble remembering how his world worked. We helped him out of his street clothes and into bed. In a few minutes, he was napping comfortably.

It couldn't have gone better.

Based on my vast legal experience---reading crime novels and surfing the legal blogosphere---I have occasionally come up with a few radical ideas for criminal justice reform. As with my previous effort, this idea is probably unworkable, unconstitutional, and a sure election loss for any politician who proposes them. But what's a blog for?

When a cop wants to search your private belongings, he basically has two options. If he can meet certain legal requirements, he can order you to submit to a search. But if he's just fishing on a hunch, the only way he can do his search is if you give him permission.

Now suppose there's a bus stopped at a station, and while the driver is off dealing with paperwork, two police officers board it and take up stations at each exit. A third cop boards and starts interrogating the passengers, asking to search their belongings. If he finds bags of cocaine, can they be used in court?

In the real life case on which this is based, admissibility of the drug evidence turned on whether the defendants gave the cops permission to search.

The defense lawyers argued that the search was invalid because the defendants didn't think they could refuse what appeared to be an order from a cop. The court disagreed and admitted the evidence.

(To my way of thinking, when a guy carrying enough drugs to earn felony federal prison time submits to a police search, it's pretty obvious he didn't think he had a choice. But I'm not a lawyer, so I don't understand these things.)

The defense appealed and won in the circuit court, which ruled that passengers wouldn't feel free to refuse a police request under such circumstances, therefore it was a coerced search and the evidence was illegal.

Now the government appealed to the Supreme Court, which ruled in a 6-3 decision that the the search was legal:

...we conclude that the police did not seize respondents when they boarded the bus and began questioning passengers. The officers gave the passengers no reason to believe that they were required to answer the officers' questions. When Officer Lang approached respondents, he did not brandish a weapon or make any intimidating movements. He left the aisle free so that respondents could exit. He spoke to passengers one by one and in a polite, quiet voice. Nothing he said would suggest to a reasonable person that he or she was barred from leaving the bus or otherwise terminating the encounter...

This sets up a reasonable person standard: A search is consensual if a reasonable person would have believed he could refuse the police request.

Think about that for a minute. This case was argued all the way to the Supreme Court, with a reversal at every step up the ladder. Three of the Supreme Court judges disagreed with it. That's about a dozen judges who considered the question, and almost half of them reached what turns out to be the wrong answer.

Yet according to the decision, any reasonable bus rider should have been able to understand what was happening.

Results like this are why the reasonable person standard is sometimes derisively called the reasonable Supreme Court Justice standard: If Justice Scalia was riding that bus, he would have known what to do, so the court may conclude that everyone else could have figured it out as well.

It seems to me that there's a fundamental flaw with how the courts make decisions about trial motions. The general rule is that the jury is responsible for deciding the facts of the case---whether the defendant did the things for which he stands accused---but matters of law---such as what evidence can be presented to the jury---are decided by the judge.

I'm reasonably sure that makes sense. But when the legal principle behind a motion involves making a judgment about what a reasonable person would conclude under a specific set of circumstances...doesn't that sound like the court is making a finding of fact? Shouldn't the question be decided by a jury?

For a more concrete example, consider the situation where the police enter a house and find evidence of a crime. At trial, the defense tries to suppress the evidence because the police entered without a warrant. The prosecutor says they didn't need a warrant because the owner let them in. The owner denies giving permission.

That's a he-said/he-said situation, and it's currently up to the judge to decide whether to believe the police or the defendant. But isn't deciding credibility exactly the sort of thing we use juries for all the time? Shouldn't the question of who to believe be presented to a jury?

Obviously, it can't be the same jury that would hear the evidence if it's allowed. We need a special jury to decide facts for motions. Perhaps the judge could convene a special motion jury.

To save time and money, the jury could be smaller than the main jury, or the selection process could be streamlined, or maybe the jury could be reusable, like a grand jury, answering questions for several trials. Maybe its verdicts shouldn't have to be unanimous to avoid long deliberations.

It would still be a lot of work, and it would be a huge change in the way trials are conducted, but I just can't see a reason why findings of fact in the course of deciding a motion shouldn't require a jury.

From the U.K. comes a new law that its backers claim will ban violent pornography:

Five years ago Jane Longhurst, a teacher from Brighton, was murdered. It later emerged her killer had been compulsively accessing websites such as Club Dead and Rape Action, which contained images of women being abused and violated.

The victim's mother has been campaigning for a law that would ban even the mere possession or viewing of such images, essentially treating some forms of adult pornography as if it involved children.

Then there's the question of just how the law defines the banned material:

"Obviously anything that leads to violence against women has to be taken very seriously," says Baroness Miller. "But you have to be very careful about the definition of 'extreme pornography' and they have not nearly been careful enough."

She has suggested the new act adopt the legal test set out in the OPA, which bans images which "tend to deprave and corrupt".

But the government has sought to broaden the definition and the bill includes phrases such as "an act which threatens or appears to threaten a person's life".

When asked about how this law will affect people who enjoy a little kinky sex, Mrs Longhurst responds in true nanny form:

There is no reason for this stuff. I can't see why people need to see it.

That's the creed of every petty legislative tyrant in the world: I don't need it, and I don't understand it, so we ought to ban it for my enjoyment.

And make no mistake, this is all about Mrs Longhurst's enjoyment. She can invoke her poor dead daughter all she wants, but her daughter will be just as dead after this law has passed. This law is about making Mrs Longhurst feel good about herself. It makes her feel like she did something to honor her daughter.

While I'd be happy to see her recover control over her life after this terrible tragedy, she has no business hurting other people in the process. This law will subject people with private sexual quirks to intrusive and humiliating investigations. They may even end up in jail.

Next time Mrs Longhurst responds to criticism by playing the dead daughter card, she's likely to be surprised when her critics respond with the cards for their imprisoned spouses, brothers, parents, and children.

(Hat tip: Reason.)

In prostitution, everybody involved gets something they want. It's a victimless crime. That doesn't stop cops and prosecutors from going after it anyway.

From the AP wire:

TARPON SPRINGS, Fla. - A woman convicted two weeks ago of being the "D.C. Madam" hanged herself Thursday, apparently making good on her vow never to go to prison for running a high-end Washington prostitution ring. The body of Deborah Jeane Palfrey was found in a shed near her mother's home about 20 miles northwest of Tampa.

That's not even the first one:

One of the escort service employees was former University of Maryland, Baltimore County, professor Brandy Britton, who was arrested on prostitution charges in 2006. She committed suicide in January before she was scheduled to go to trial.

So, two women driven to suicide when prosecuted for a victimless crime. Way to go, dickheads.

One of my new favorite sites is Photoshop Disasters, which features actual commercial photoshop work that is bad or stupid.

Check out, for example, this ad for Elizabeth Arden lipstick, where they've gone to the trouble to hire Catherine Zeta-Jones, and then photoshopped away all her actual facial features. Or how about this impossibly thin babe? Or this jaw-dropping horror? Or OH MY GOD! HER LEGS! HER LEGS!

Some of the best stuff is for movie posters and DVD covers. Once movie production is finished, there's no way to get the cast back together---in costume and makeup---to photograph promotional pieces, so the promotional art has to be assembled in Photoshop from existing images. The result is often quite hideous, with actors pulled in from different scenes with different lighting, heads pasted onto bodies, faces pasted onto heads, and arms and legs slid around to impossible locations.

As the resolution of computer monitors creeps up, the visual size of pixel-dimensioned page content has been shrinking, and web designers have been tweaking pages to compensate for the changes.

For example, when I first started posting my photography on this site, I would size the images to have a maximum dimension of 400 pixels. A while ago, I resized photos to 450 pixels.

Lately, that's been looking a little small to me, so I just bumped up the size again to 500 pixels wide. And if you take the time to click through to the larger image, you'll see a big and beautiful 900 pixel wide image.

Here's what the difference looks like:

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Beautiful, eh? I hope you folks continue to enjoy the photos.

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Cook County Forest Preserve District is tearing down the last of the toboggan slides:

The last toboggan slides in the Cook County Forest Preserve District will come down despite an impassioned plea to preserve the historic attractions enjoyed by generations of city and suburban residents.

The Forest Preserve Commission approved contracts Tuesday to demolish the storied, southwest suburban Swallow Cliff slides and a set of similar slides at Caldwell Woods on Chicago's Far Northwest Side.

Caldwell Woods is just a few minutes away, so I went over and took some pictures a few weeks ago. Then a lot of other stuff came up, so I didn't get around to posting them until just now.

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I haven't really been following the trial of the four cops who shot an unarmed Sean Bell outside the strip club where he'd just had a bachelor party. However, a few things seem worth mentioning.

First of all, the fact that the cops fired 50 shots is vivid and horrific, but I don't think it says much about the cops who did the shooting.

Cops used to be taught to draw and fire a shot when threatened, but there have been incidents where the offender shot back and a cop got killed because his shot missed or he didn't hit the offender in a vital area. Nowadays, in the interest of protecting the lives of police officers, they often shoot until the offender goes down.

When the threatening person is seated in a car, as Bell was, he's already as down as he's going to get, so the cops just keep on shooting. It's not that the cops are too stupid to realize the target is seated, but a gunfight is so incredibly stressful that it suppresses conscious thought. A few years ago there was a shooting incident involving a man in a wheelchair---the cops in that case fired a lot of rounds into him as well.

Second, this situation started when Bell and his friend got into his car and the cops rolled up to stop him from leaving. Bell tried to drive away and rammed the police cars in the process, so the cops opened fire.

Bell's defenders point out that these were plainclothes cops in unmarked cars, so Bell didn't know they were cops and probably thought he was about to be killed. Defenders of the cops responded that the cops identified themselves by yelling "Police!" as they approached.

With all due respect to the cops, who were probably just following procedure, that's really not true in any normal sense of the word identify.

To identify themselves, the cops would have had to pull out their badge and department identification and show it to Bell, or at least they would have had to arrive in a marked police car and wear a police uniform, or maybe even just have a marked car put in an appearance.

These cops did not identify themselves as police. What they did was drive up and jump out with their guns and claim to be police. Which is something anyone can do.

I can't know what was going through Bell's mind as the cars pulled up to block him in, and the armed men jumped out, but I have no trouble believing he freaked out and went into full fight-or-flight mode. He may have noticed that the attacking men were yelling, but he was probably too flooded with adrenaline to recognize the words, let alone to think rationally about what the words meant.

There's something wrong about a system in which police can start a violent action---a takedown or a raid on a drug house---and simply by yelling "Police!" can shift the entire burden of safe and reasonable behavior onto everyone else.

Third, defenders of the police in these incidents usually claim that the situation was confusing, frightening, and volatile, and the cops had to make split-second decisions for which they should not be held criminally accountable.

Fair enough. But shouldn't the exact same reasoning apply to the other people involved in the incident? In fact, given that the cops were the ones who started the incident, shouldn't the other guys get even more benefit of the doubt?

Yet if the situation was reversed, if Sean Bell had succeeded in driving away from the scene but run over and killed a cop in the process, does anybody think he'd have been as successful claiming confusion at his trial?

Fourth, one of the smartest things I've read about this incident is from Jim Leitzel at Vice Squad:

Sean Bell is dead, and there is no criminal responsibility for the police. It isn't hard to understand the latter part. Police have to make split-second decisions in highly uncertain and stressful situations. Lethal force, which can be applied at a distance, is widely available. A police officer who guesses that a suspect is holding a cell phone could easily be killed, if that guess is wrong and the object turns out to be a gun. (The first police officer to shoot in the Bell case believed from overheard conversations inside the club that a gun might be present.) I think that this is one of the main reasons that courts are extremely reluctant to convict police after the shooting of an unarmed citizen.

But what is the lesson? Well, it is a general point in public policy: the less effective are after-the-fact sanctions, the stronger the case for imposing before-the-fact controls.
It is very difficult, and perhaps even undesirable in most circumstances, to hold police accountable for errors in judgment that result in the death of innocent (or even guilty!) civilians. Therefore, one should only initiate police/citizen encounters when the stakes are high. The police who killed Sean Bell were at the strip club as part of an anti-prostitution sting operation.

The criminalisation of prostitution puts prostitutes, clients, and police at great risk. The toll in the US is small relative to the deaths brought on by the criminalisation of drugs, but it is significant nonetheless. The criminalisation of prostitution isn't necessary -- many places get by just fine with legal, regulated prostitution. Even if prostitution policing were perfect and costless, and even if prostitutes were not put at great risk from clients in a prohibition regime, I would not favor the criminalisation of prostitution. But the violence suffered -- by prostitutes, johns, and police -- as a result of criminalisation makes a strong case for a legal, regulated adult sex market. One of the enduring mysteries of vice policy is why this steady violence has had so little impact on improving public policy towards prostitution.

In other words, the cops were basically wasting their time and the taxpayers' money to investigate a victimless crime, and in the process they killed a guy. 

It all started when my 88-year-old father's home care nurse came to visit and noticed that his left foot looked infected. He has diabetes---meaning an infection in an extremeity could be serious---so she got some kind of medi-car service to take him to the emergency room at the local V.A. hospital. The ER there operates as a walk-in clinic during the day.

The doctor took a look at his foot, did some tests, and declared it infected. He wanted to admit my father to the hospital for a few days, but after my father's experience last time, he didn't like the idea. The doctor agreed instead to send him home with a huge dose of antibiotics---the V.A. pharmacist told me he'd never seen a dose that large before---provided we promised to come back on Wednesday for a followup.

Everything was fine when I took my dad for the followup visit, but I noticed that he was more worn out by the trip than usual.

The next day, Thursday, my father fell down in his room, slamming his back against the bedframe. He said he had gotten light-headed. My mother called for paramedics, and they decided to take him to the emergency room. Since he's already a patient at the V.A. hospital, they agreed to take him there.

The ER did X-rays, and all kinds of tests. His back was fine, other than a nasty bruise (he's on blood thinners, so all bruises are nasty) but they decided to admit him for observation, and maybe also to complete the course of antibiotics.

While he was there, they also discovered a problem with his lungs which they have been treating. His bedroom will get a new piece of medical equipment when he goes home.

If he ever goes home.

The title of this post, "nosocomial," means "hospital caused," as in "hospital caused disease." This is a concept that has become an important part of my dad's life, and therefore of my life.

My father is old and has arthritic knees, so walking has been difficult. With support, such as a walker, he manages to get up and around the apartment, going to the bathroom, adjusting the fan in his room, and coming into the living room to watch television with my mother.

During the first two weeks of my father's stay in the hospital, they kept him resting in bed, with no physical activity at all. I don't know much about medical care, so maybe a full bed rest was necessary, but the cost has been high: With so little activity, my father's legs lost whatever conditioning they had, and he was unable to walk, even with assistance or a walker.

The hospital's next step was to move him to a rehab ward and give him physical therapy every day. I'm sure that was the right thing to do, but it wouldn't have been necessary if they had given him some exercise earlier in the process.

Rehab took about a month to get him back to where he was when he was first admitted. However, trapped in a dull, boring, and poorly-lit hospital room for days on end, my father began to show signs of delerium. His short-term memory went bad, he had a hard time expressing himself, he became obsessed with features of his environment, and he lost the ability to think about and explain his needs to the staff or to me. I know my father's 88 years old, and his mind hasn't been at its sharpest for a while now, but this was a sudden, steep, and frightening decline in his mental state.

His doctors assured me that they had checked for every possible physiological malady that could cause such an acute change in his behavior, and there was nothing. By process of elimination, it had to be caused by the environment of the hospital. They say that part of the problem is the unfamiliar environment, so I've been making the drive to see him every day for several weeks to try to help him improve. It may be working, because he's returning slowly to his old self.

Late last week, the doctors started telling me they were planning to discharge him on Sunday, so my family started gearing up for it: Buying supplies, fixing up his room, putting his portable oxygen tank in the car.

Then on Saturday, they told us his white blood cell count was a little high. They thought it could be a reaction to some of his medication, but they were taking blood and urine samples anyway.

Sunday morning, his doctor told us he turned out to have a urinary tract infection, so they wanted to keep him in the hospital while they fought it.

On Monday, they apparently identified the infection as some sort of multi-drug resistant organism, so they isolated my father in a private room. I have to wear gloves and a gown whenever I see him, and I wash my hands thoroughly afterwards.

Again, I'm no doctor, but I do know a little about science. Organisms don't appear spontaneously. Bacteria can only come from other bacteria of the same type. Since my dad didn't have this infection when he moved to the rehab ward, he must have acquired it when he got there. Since even now he can't walk without effort, I don't think he was wandering around and visiting other patients.

No, someone gave him this infection. Either they were carrying it themselves, or they transfered it from another patient. Either way, it's a breakdown in infection control: Somebody didn't wash their hands, or they didn't wipe down an instrument between patients. Hospitals are notorious for this kind of problem. Even before this, his ward had ongoing outbreaks of MRSA and VRE.

To summarize, my father comes in with a foot infection, gets dizzy from antibiotics and falls, is hospitalized for that, loses his ability to walk during the bed rest, has to get therapy to walk again, then catches an infection, for which he needs intravenous antibiotics.

All of this may well be unavoidable given the current state of medical care, but at this rate they will spend more effort---and he will spend more time---dealing with the maladies caused by his hospital stay than with the medical problems he had when he came in.

Iowa Champion Charles Kenville posts a complaint about the unfairness of drug threshold levels in Iowa:

Because the threshold level for a mandatory 25 year prison sentence on methamphetamine charges is so low (five grams), prosecutors have unconscionable power over a defendant's fate during plea bargaining...

The injustice with the low threshold is that the person trafficking TEN POUNDS of methamphetamine doesn't see any more prison time than the low level user/dealer he has as a customer.  The B felony applies to weights between 5 grams and 5 kilograms (about 11 pounds).  How does that structure make any sense?  When a person buys seven grams and turns around to sell a gram or two to support his own habit, he puts himself in the same boat as the ten pound dealer.  Try telling the prosecutor that only three of the seven grams you possessed were actually going to be delivered so it should be a C felony and not a B.  They won't bite.

He notes that there is a similar problem with crack cocaine thresholds, and then proposes a solution:

The class B felony thresholds need to be more uniform, and more importantly, higher for "crack" and meth.  Whether your policy is one of interdiction and prosecution, or education and treatment, you need to sort out the true drug traffickers from the low level user/dealers. The only way to do that is to have higher, realistic thresholds for increased penalties.

Like many people who fight in the front lines against the travesties of the War On Drugs, Kenville's vision is limited to what seems realistically possible. Pie-in-the-sky wishes for greater justice do him no good. For pundits sitting on the sidelines, such as myself, reality is less of a barrier.

So, although I'm sure having "higher, realistic thresholds" would help, I think a better and clearer way to "sort out the true drug traffickers from the low level user/dealers" would be to require that for some one to be convicted of drug trafficking, they are found not only to possess drugs but are actually caught trafficking in drugs.

But that's not how it works. Quantity, not activity, is all that matters.

[Update: According to Charles Kenville's comment below, I misunderstood his post. In Iowa, they still have to prove trafficking. That's not the case in some other states, so my comments would still apply elsewhere.]

This is part of a trend in criminal law that both fascinates and upsets me. I haven't quite figured out a coherent way to think about it, but right now I'm calling it "trimming the elements" of the crime. (There may be an established term for this trend, but I haven't stumbled across it yet.)

To prove a crime in court, the state has to prove every element of the crime. For example, in a DUI the prosecutor might have to prove that the defendant was (1) operating a vehicle, (2) had consumed alcohol, and (3) was impaired by the consumption of alcohol.

That third element is a little tricky to prove---it requires some form of testing that will hold up in court---so most states have a law against drinking while driving, which eliminates the need to prove impairment. That makes it a little easier, but there's still the problem that a police officer has to observe someone drinking while driving. That can take time and effort, and police departments are loath to work harder than necessary. So a lot of states have eliminated the element of drinking by passing laws against having open containers of alcohol in the passenger area of car.

Now, all a cop has to do is find an open can or bottle anywhere in the car and he can bust the driver. Advocates of such laws want you to think of young punks passing around a fifth of Jack, but you'd be just as guilty if you were the completely sober designated driver for a night of drunken revelry and one of your friends hid a flask of booze inside his coat, or if you were driving a friend home from dinner out and she was bringing home the leftover bottle of wine from the restaurant.

Kenville's problem with the drug laws seems to be a variation on this trend. Catching drug dealers in the process of actually selling drugs is hard work, so the laws have been tweaked to remove the need to prove the actual sale, in this case by specifying that mere possession of a sufficient quantity is proof of intent to sell.

It's also not usually necessary to prove an exchange of money for drugs to prove a sale, because that would require extra work. Merely giving drugs to someone is usually enough to be arrested for drug dealing. If you bring some pot to a friend's house and share a joint, you may be a drug dealer.

The end result is that a convicted drug dealer may not actually have dealt any drugs. In effect, legislators have made the law itself a lie.

New York Criminal Defense Lawyer Scott Greenfield has some comments about a disturbing Fourth Amendment ruling.

The Fourth Amendment to the Constitution protects everyone in the United States from unreasonable searches. And I'm pretty sure that the U.S. government can't conduct arbitrary searches of U.S. citizens outside the country either. But when we cross the border, anything goes.

In the interest of fighting smuggling and preventing the spread of diseases, government agents at a border crossing can search the affects of anyone---even a U.S. citizen---without having to justify the search. Crossing the border is justification enough.

It's getting even worse. The 9th Circuit has just ruled that the government can even search computer hard drives at the border, treating them as just another container entering the country.

As Scott explains in considerable detail, this is an absurd decision. First of all, unlike diseased agricultural products or radiological weapons, there's nothing inherently dangerous about letting hard drives full of data into the country. Vast amounts of unregulated data already enter the country all the time over transoceanic network trunks.

Second, many people have lots of very private data on their hard drives. As Scott puts it,

Judge Pregerson got it when he concluded that computers are like diaries, holding our personal secrets.

If you think you might ever transport a computer over the border, read Scott's post and write your representatives.

Kip is making fun of an op-ed by Robert Crandall in the New York Times, and rightly so. Consider the first paragraphs of Crandall's missive:

Thirty years ago this fall, Congress passed the Airline Deregulation Act of 1978. Since then, America’s airline system has greatly deteriorated.

I suppose that's one way of looking at it. Another way to look at it is that air travel has become much less expensive than it used to be. Airlines have learned to produce a low-cost product. Naturally, there are some compromises which result in poor service, but that seems to be a trade-off people are willing to make.

The second paragraph elaborates on the claims of the first paragraph.

Our airlines, once world leaders, are now laggards in every category, including fleet age, service quality and international reputation. Fewer and fewer flights are on time.

Translation: Air travel has become a price-competitive business. It used to be the Ritz, now it's Motel 6.

Airport congestion has become a staple of late-night comedy shows. An ever higher percentage of bags are lost or sent to the wrong airports.

Translation: The airports---which have not been deregulated---aren't run very well.

Last-minute seats are harder and harder to find.

Translation: Airlines are making more efficient use of their passenger-carrying capacity, leaving fewer empty seats, thus reducing prices.

Passenger complaints have skyrocketed. Airline service, by any standard, has become unacceptable.

No, not by any standard, just by the standards of guys like Crandall. Passengers may not be thrilled by airline service, but they certainly find it acceptable by the standard that matters most: People are flying a lot. In 1975, commercial air travel amounted to 136 billion passenger-miles. Thirty years later, in 2005, commercial air travel had more than quadrupled to 584 billion passenger-miles (far outracing population growth).

Airline service may not be the high-quality product it used to be, but it's certainly the low-cost product everybody seems to want.

Kip goes on to point out a strange internal conflict in Crandall's piece. At one point, Crandall writes this:

Although the system could conceivably be operated by a single efficient carrier, consumers clearly benefit from the existence of multiple airlines. The absence of competition never fosters better customer service.

But the very next sentence says something else:

Market-based approaches alone have not and will not produce the aviation system our country needs.

Kip's response is apparently genuine befuddlement:

So "competition" is good, but "the market" is bad? Don't worry -- I don't understand it either.

Oddly, I do understand it, so let me see if I can help out poor Kip.

Competition among suppliers is a state of the market in which sellers face constant pressure to make their product more attractive to customers out of fear of losing sales to other suppliers. They can try to attract customers by making their products better, or they can try to make their products cheaper. Airlines seem to have chosen the latter course. In either case, the essence of the definition is that suppliers are trying to win customers.

Crandall, however is using a different definition of competition, one that puts the emphasis not on the actual competition, but on the presence of competitors. He believes---or hopes to convince us to believe---that a good competitive market requires vigorous competitors.

This view---also popular among regulatory agencies---turns competition on its head. Instead of focusing on the benefits to consumers, Crandall and the regulator agencies want to focus on the financial health of suppliers. The result is a hodge-podge of recommendations that help the airlines stay in business, usually at the expense of their customers.

Consider this recommendation by Crandall:

The financial standards for new airlines also need to be made more stringent. In the years since deregulation, nearly 200 airlines have come and gone. These inadequately financed carriers — whose principal goal has often seemed to be merely to exist long enough to reap the rewards of an initial public offering — have consistently cut prices to attract passengers. This downward pressure on prices has hurt airlines that seek long-term success.

Here, Crandall is blatantly abandoning clear competition---cutting prices to attract passengers---to keep airlines in business. By his definition of competition---the presence of healthy competitors---that makes complete sense. Of course, that's not what competition really is. That's not what capitalism is.

At the end of his op-ed, Crandall makes this disingenuous declaration:

We need to be realistic: whether there are mergers or not, airline fares are going to increase. Every business must charge enough to cover its operating and capital costs. Regulatory and oversight changes intended to make our carriers more successful may well force prices up faster than would otherwise be the case. But we will be better off with higher fares and more competitors than with higher fares and fewer competitors.

Notice how he concedes that regulations will increase prices, but then goes on to effectively equate both possibilities by referring only to "higher fares."  Let me try to recast that last sentence in a more honest way:

But we will be better off with much higher fares and more competitors than with slightly higher fares and fewer competitors.

Personally, I'd prefer the slight fare increase. I'd prefer to receive the benefits of competition rather than spending my money to preserve Crandall's bogus definition of competition. Judging by the statistics on air travel, most passengers agree with me.

Finally, there's this sentence in the last paragraph:

The enormous economic importance of our once peerless aviation system is indisputable.

True enough. However, the benefit of an aviation system does not come merely from its existence, but from how we use it. Agriculture is important because it allows us to eat, the auto industry is important because it allows us to have cars, and the aviation industry is important because it allows us to fly.

This is my cat, Buffy. Click through to vote for her.