Coyote Blog

Those of you as old as I am may remember in the 1970's when a few last surviving Japanese soldiers from WWII were discovered or coaxed to surrender after hiding for decades in some Pacific jungle.  No one was looking to punish these guys -- the war was won and over -- we were just trying to get them to come out and try to live a normal life.

I am reminded of these stories upon reading that Colorado is yet again going after the same baker for not baking someone a cake:

On the same day the high court agreed to review the Masterpiece case, an attorney named Autumn Scardina called Phillips’ shop and asked him to create a cake celebrating a sex transition. The caller asked that the cake include a blue exterior and a pink interior, a reflection of Scardina’s transgender identity. Phillips declined to create the cake, given his religious conviction that sex is immutable, while offering to sell the caller other pre-made baked goods.

In the months that followed, the bakery received requests for cakes featuring marijuana use, sexually explicit messages, and Satanic symbols. One solicitation submitted by email asked the cake shop to create a three-tiered white cake depicting Satan licking a functional 9 inch dildo. Phillips believes Scardina made all these requests.

Scardina filed a complaint with the civil rights commission, alleging discrimination on the basis of gender identity. The matter was held in abeyance while the Supreme Court adjudicated the Masterpiece case.

I have supported gay rights for as long as I can remember and briefly ran an Arizona campaign to legalize gay marriage.  But this looks to me like sending an entire army into the jungle to try to hunt down and kill that last Japanese soldier.  Isn't it enough that we have complete legal tolerance of homosexuality, de facto tolerance by the majority of Americans, and commercial tolerance in that 99+% of all businesses gratefully accept business from gays?  There can't be that many businesses denying accommodation to gays and trans-gendered when they have to keep harping on the same one example of non-conformity.  One of the features Hannah Arendt used to distinguish totalitarianism from run-of-the-mill authoritarianism was that in the latter, authorities need everyone to act in accordance with their wishes, in totalitarian governments they require people to believe in accordance with their wishes.  This need to seek out and harshly punish tiny infractions against social justice strikes me as totalitarian.

As an aside, I would challenge anyone to say that there is no message they would refuse to put on a cake.  I can think of a number I would say no to, starting with this one.

Mandated accommodation laws are a tough thing.  Libertarians tend to be suspicious of them because they tend to tread on several first amendment rights (speech, association).  But I could envision cases where I would support them, for example in the 1960's South during the dismantling of Jim Crow.  I really do not think we are there for gay wedding cakes.

When my company screws up, one of the steps we take to try to make customers happy is to give them a refund or some free future services.  For example, last weekend we had a customer who reserved a boat and apparently our staff in the rush of the holiday weekend lost the reservation, so that when the customer showed up there was no boat ready for him.  He was understandably angry and we offered him a free boat rental any time in the future and he felt that we had done our best to make things right.

Unfortunately, we have one campground were word has gotten around that if you make up complaints and threaten bad reviews, you can get free camping.  It started a few years ago when I offered a customer there a couple days free camping to ameliorate a complaint that frankly I don't even remember.  Apparently, this person told all their friends that complaining was a path to free goodies.  This morning, I had a call that one customer from this friend group was not even pretending any more.  They were fine with their stay but were essentially holding us hostage by saying that she wanted free days of camping or she and her friends would cover Trip Advisor with bad reviews.  Obviously we had to bring a halt to this whole thing so we told her to bring it on.  Now we have a policy that no one in that campground gets free camping for any reason, and thus in this one location, at least for a while, I have lost one of my best tools for resolving customer satisfaction problems.

This is obviously frustrating, since the folks involved clearly have no personal honor in the matter, and they are taking advantage of my sense of honor in wanting customers to leave satisfied when they have paid me money.

Jeff Skilling was convicted of fraud and fined $50 million dollars and given 20+ years in jail.  Elizabeth Holmes -- for fraud that is way more obvious and for which she is clearly directly accountable -- will get no jail time, a fine of a half million dollars, loss of some voting shares in the company, and a ten year moratorium on being a director or officer of a public company.  From the SEC press release:

The complaints allege that Theranos, Holmes, and Balwani made numerous false and misleading statements in investor presentations, product demonstrations, and media articles by which they deceived investors into believing that its key product – a portable blood analyzer – could conduct comprehensive blood tests from finger drops of blood, revolutionizing the blood testing industry.  In truth, according to the SEC’s complaint, Theranos’ proprietary analyzer could complete only a small number of tests, and the company conducted the vast majority of patient tests on modified and industry-standard commercial analyzers manufactured by others.

The complaints further charge that Theranos, Holmes, and Balwani claimed that Theranos’ products were deployed by the U.S. Department of Defense on the battlefield in Afghanistan and on medevac helicopters and that the company would generate more than $100 million in revenue in 2014.  In truth, Theranos’ technology was never deployed by the U.S. Department of Defense and generated a little more than $100,000 in revenue from operations in 2014.

These are only the highlights of the many, many repeated knowingly grossly fraudulent statements made by Holmes over a span of several years, and this does not even include her harassment of whistle blowers who tried to go public with the fraud.  This isn't a case of creating an offshore JV that shifted some debt off the balance sheet -- its the case of lying blatantly about the company's technology and financials for years and years.

Update:  6/15/2018 Holmes criminally indicted for fraud.  I should have listened to Ken White at Popehat -- he always says that the wheels of justice in the US Attorney's office grind slowly, but they do eventually make progress.

A few days ago I wrote:

Speech codes are written by and for the privileged.  They are written by the oppressor to shut up the oppressed.  George Wallace did not need the First Amendment, black kids trying to go to the University of Alabama needed it.  So the progressive opposition to free speech (e.g BLM shouting down the ACLU over free speech) is either 1) completely misguided, as the oppressed need these protections the most or 2) an acknowledgement that progressives and their allies are now the privileged, that they are the ones in power, and that they wish to use speech codes as they have always been used, to shut up those not in power.  In our broader society the situation is probably #1 but on university campuses we may have evolved to situation #2.

Example of #1 (via Overlawyered)

A woman has been questioned by police and could face a hate crime prosecution after she waved a banner at Belfast’s Pride parade reading “Fuck the DUP”.

In a case that could have consequences for free speech and the right to offend across the UK, the Police Service of Northern Ireland (PSNI) says it will pass a file to the region’s public prosecution service (PPS) after Ellie Evans, 24, held up the placard at the August parade to protest against the party’s policies on gay marriage.

The investigation was prompted by a complaint from DUP politician Jim Wells, who told the Guardian that the slogan constituted “incitement to hatred and potential public disorder”.

Example of #2

A few months later, I received a letter from two Reed students of colour that was being distributed among alumni like a piece of samizdat. The students didn’t reveal their names for fear of being ostracised, but they described a campus that had been overtaken by militants who routinely shamed as racists anyone who didn’t agree with them. One of those singled out had been a freshman named Hunter Dillman who had been branded a racist after asking the organiser of a Latina student group an innocent question. He was ultimately hounded off campus.

The students said the Facebook shaming became even more virulent as the year went on. When another white student apologised to Amanda for being unable to attend a particular protest because he was behind on his schoolwork, Amanda accused him of being the kind of white guy who would ‘laugh at a lynching’. The students felt Amanda’s charge was so outrageous that they decided to take a big step: they would all ‘like’ the student’s apology on Facebook, even though they might be called racists as well. ‘As students of colour we felt that we had to do it’, one of them later told me. ‘It would have been 100 times worse if somebody white liked it.’

 

This comes to us from that bastion of freedom called Canada, where half of Americans wanted to run when Trump got elected.

It’s like something out of George Orwell’s 1984**.

Canada’s Competition Bureau, an arm’s length agency funded by Prime Minister Justin Trudeau’s government to the tune of almost $50 million annually, investigated three organizations accused of denying mainstream climate science for over a year, following a complaint from an environmental group.

The bureau discontinued its 14-month probe in June, citing “available evidence, the assessment of the facts in this case, and to ensure the effective allocation of limited resources”, according to Josephine A.L. Palumbo, Deputy Commissioner of Competition, Deceptive Marketing Practices Directorate.

But it will re-open its investigation should it receive relevant new information from the public.

The complaint was filed by Ecojustice on behalf of six “prominent” Canadians, including former Ontario NDP leader and UN ambassador Stephen Lewis.

It accused three groups, Friends of Science, the International Climate Science Coalition, and the Heartland Institute of making false and misleading claims about climate change, including that the sun is the main driver of climate change, not carbon dioxide, and that carbon dioxide is not a pollutant.

When it launched its complaint in December, 2015, Ecojustice told the National Observer it would press the Commissioner of Competition to refer the matter to the Attorney-General of Canada for “criminal charges against the denier groups”.

**I presume the author is referring to the general understanding of what 1984 was about, rather than Hillary Clinton's revisionist opinion that 1984 was a cautionary tale about the danger of not having enough respect for government authority figures.

Bizarre misreading: @HillaryClinton thinks the lesson of Orwell's 1984 is that you should trust experts, leaders and the press pic.twitter.com/7rPbrq11fV

— JamesHeartfield (@JamesHeartfield) September 12, 2017

A while back I wrote about this frustrating practice lawyers were training California employees to follow:

Years ago, in Ventura County California (where I am thankfully no longer doing business), a loyal employee approached our manager and told her of a meeting that had been held the night before for our employees at a local attorney's office.  The attorney was holding the meeting mainly because he was trying to drum up business, brainstorming with my employees how they might sue the company for a variety of fanciful wage and hour violations.  Fortunately, we tend to be squeaky clean on labor compliance, and the only vulnerable spot they found was on California break law, where shifting court decisions gave them an opening to extract a bit of money from the company over how we were managing lunch breaks.

Anyway, in the course of the meeting, the attorney apparently advised our employees that if they ever thought they were about to get fired, they should quickly accuse someone in the company of harassment or discrimination or some other form of law-breaking.  By doing so, they made themselves suddenly much more difficult to fire, and left the company open to charges of retaliation if the company did indeed fire them.   In later years, we saw at least two employees at this location file discrimination or harassment claims literally hours before they were to be terminated for cause.   Since then, I have seen this behavior enough, all over the country, to believe that this is a strategy that is frequently taught to employees.

So now we have the James Damore / Google memo brouhaha, of which I generally choose not to comment except to say that it is worth skimming the memo and comparing its contents to how it is portrayed in the press just to see how unreliable the media is.  However, I wanted to note this bit (gated WSJ):

But before his firing, Mr. Damore had complained to the National Labor Relations Board about superiors “misrepresenting and shaming me.” Now he is arguing that his dismissal constitutes retaliation. This is a stretch, since the labor board’s purview doesn’t extend to individual workplace disputes. But Mr. Damore could still try to take Google to court.

It is going to get super-tedious if every employee starts lobbing in an 11th hour government complaint when they are anticipating termination just to set up grounds for a retaliation claim.  Except in the case of grievous fire-on-the-spot misdeeds, it is generally good practice to give employees warnings of poor performance and potential termination so they have a chance to correct such behavior.  Terminations can certainly stressful and disappointing and aggravating, but they shouldn't be a surprise.  But perhaps in the future this may change and ambush firings will become the norm to avoid this kind of thing.

From the College Fix (my empahasis added):

Are young men at Princeton University violent, aggressive, hyper-masculine, stalkers, or rapists?

A new position at the Ivy League institution indicates campus officials apparently think enough of its male students grapple with such problems that it warrants hiring a certified clinician dedicated to combating them.

The university is in the process of hiring an “Interpersonal Violence Clinician and Men’s Engagement Manager” who will work with a campus office called SHARE that’s dedicated to “survivors” of sexual harassment, assault, dating violence and stalking.

According to SHARE, one in four female undergrads experienced such misconduct during the 2015-16 school year.

The men’s manager will also launch initiatives to challenge “gender stereotypes,” and expand the school’s Men’s Allied Voices for a Respectful and Inclusive Community, a self-described “violence prevention program” at Princeton that often bemoans “toxic masculinity” on its Facebook page.

According to the job description, the men’s manager will develop educational programs targeting the apparent “high-risk campus-based populations for primary prevention of interpersonal violence, including sexual harassment, sexual assault, domestic/dating violence, and stalking.”

The job posting implicitly refers to men as perpetrators and women as victims.

Fortunately, stereotyping does not count if done about men, whites, or heterosexuals so this is all OK.

By the way, apparently since the one in five statistic was not absurd enough, SJW's have upped the ante with a new one in four stat.  I am all for aggressive responses to actual violence, and would be more harsh in its punishment than most universities (I would throw the perpetrator into the legal system, rather than merely some administrative punishment and expulsion regime.)  The problem is that I do not know the actual rate of violence.  The one in five, and now one in four stat is almost certainly bullsh*t.  If this were really true, college campuses would be more dangerous than Syria and people would not be competing so hard and paying so much to send their daughters there.

The problem with these stats is that they hoover up all sorts of complaints by women that range from true violence down to things like boorish comments by males and post-sex regret.  By rhetorical slight of hand, all these complaints are morphed into violence and every complaint, no matter how trivial, is essentially counted as a rape.  Perhaps sexual assault on campus is indeed more common than in the broader community, but if so I would like to see real statistics.  When advocates purposely inflate and obfuscate their core statistic, it makes me suspicious that the actual number is not really that bad and therefore a fake one needs to be provided instead for the activist to get my attention. But for me, this has the opposite effect, turning me off on an issue I perhaps should be energized about because I can't see past the fakery.

My company serves nearly 3 million visitors a year.  Though we always try for 100% satisfaction, some customers are going to slip through the cracks and be dissatisfied.   Each year, I get maybe 10 visitors who are severely dissatisfied, think they were mistreated, want to call their Congressman, are going to sue me, etc. I would say that these complaints eventually land on my desk but I actually look at every single comment card and letter and review that we get from customers and personally am involved with every single complaint of any sort.  Anyway, 10 or so are severe issues with a very upset customer that get to me without having been resolved in the field.

Folks who are involved in customer service will tell you that of these complaints, there will likely be a range of blame.  In some cases we screwed up.  In some cases no one screwed up but there was a mismatch of expectations.  And in some cases the customer was acting like a total asshole and was entirely to blame for the whole affair.  Sometimes it is hard to parse out after the fact which case is which -- something I wrote about here.  When these major complaints get to me, here is my guide to how I respond:

When we screw up:   "I am very sorry we did a poor job and you had a bad experience.  I am going to personally investigate immediately and we are going to make changes so this does not happen again -- but in the mean time, I want to refund your money and give you a certificate for some free camping so you can come back in the future and give us another chance to serve you well."

When the customer broke the rules and acted like a total jerk:   "I am very sorry we did a poor job and you had a bad experience.  I am going to personally investigate immediately and we are going to make changes so this does not happen again -- but in the mean time, I want to refund your money and give you a certificate for some free camping so you can come back in the future and give us another chance to serve you well."

When the exact situation is unclear:    "I am very sorry we did a poor job and you had a bad experience.  I am going to personally investigate immediately and we are going to make changes so this does not happen again -- but in the mean time, I want to refund your money and give you a certificate for some free camping so you can come back in the future and give us another chance to serve you well."

In any of these cases, if the customer describes poor behavior by my employees, I will tell them that "the behavior you are describing is absolutely unacceptable and, as I said, I am going to investigate personally as soon as we get off the phone."  You don't have to admit the behavior.  It is common that angry customers will dress up a story with a few added descriptions of outlandish employee behavior that may not actually be what happened.  You will try to figure that out later in the investigation.   But give the customer as much as you can.  If the customer said the employee used profanity, then it is perfectly fine to say "you are right, ms. customers, use of profanity by our employees is absolutely unacceptable" even if you suspect the employee did no such thing.

Giving this very positive response to customers who may have been bad actors or may be exaggerating can be hard because my local managers want to get very mad at me -- "Warren, don't you understand, he was a BAD customer.  You can't reward him for being a BAD customer."  To which I will say:  "First, you and I have not talked so I don't know yet if he was truly a BAD customer.  We may be the ones who screwed up.  But second, even if they were bad in some way, I am not rewarding a bad customer, I am trying to avoid a bad Tripadvisor review which will sit there on the Internet forever like a turd you can't flush.  And third, you seem to be trying to teach this customer a lesson, and make them realize they have been bad.  Even if the customer is really a jerk, this is never, ever ever ever going to happen.  You will never ever convince a jerk that they are a jerk, because almost by definition jerks last self-awareness, so stop trying."

We do a lot of training on this.  I tell folks all the time that if we have a customer like this who gets to me, I AM going to apologize and AM going to give them a refund and AM going to give them some free camping.  It doesn't mean that I am undermining the folks in the field, it means that this is smart business practice, particularly in this age of Internet reviews.  I tell my managers that they are letting their ego and pride stand in the way of having a customer walk away more satisfied, and if they refuse to check their ego, they are delegating the task of being humble upwards to me.  And over time, the good news is that most of my managers have gotten the message and have started emulating me so fewer and fewer of these ever reach me, they are solved much earlier in the field.

Postscript:  The first reaction I get from other business people is -- "don't you get taken advantage of and give out refunds to people who are just posturing about bad service just so they can get a refund?" And my answer is "yes".  But recognize that we have had over $100 million in revenues in this company since I started it, and we have perhaps paid $500 or $1000 is false refunds, or about .001% of revenues. I don't think .001% is very much to pay for the very high customer satisfaction rate we have.  But you would be surprised at the number of people that just can't let it go.  I don't know what this is called psychologically, but I will give another example.  We have a number of sites where the entrance station is not staffed on certain days and payment is on the honor system.  I have people who work for me who really get upset with me, telling me I simply HAVE to staff that gatehouse because some people are not paying.  You are being CHEATED!  I say that I am perfectly aware people are not paying, but it costs, all-in, probably $120-$150 to have a person sit in that gatehouse for 8 hours.  In that time perhaps 15 cars will come in.  At $6 apiece, even if every single one of them is cheating (and they do not, we have very good compliance in most honor system locations) I would be paying $150 to collect an extra $90 of revenue.  That would be insane.  But somehow the thought of lost revenue just makes some people crazy, no matter how expensive it is to chase it down.

Princeton, like many top Universities, requires a face to face interview of every candidate.  They do this mostly through their alumni network.  I volunteered for this effort for well over a decade, and it was fun to meet and talk to a lot of bright kids.

However, it was becoming clear to me that Asians, with the same qualifications, had a much worse chance of getting in than other similar kids of other ethnicities.   I started getting Asian kids asking me about this and I had some canned answer from the University to give them, but that answer looked like BS to me.  I felt like I was being asked to lie if I told Asian kids they did not face discrimination in the process.

So I quit.  Princeton is a private institution (though it accepts a lot of public money) so I suppose it can pick candidates any way it wants, but that does not mean I have to act as an agent for them if I disagree with what they are doing.

The WSJ has a follow-up today on a couple of cases being made by Asians against Princeton and Harvard admissions:

In 2006 Jian Li filed a complaint with the Education Department’s Office of Civil Rights after he was denied admission to Princeton University. Mr. Li, who emigrated from China at age 4, had a perfect score on the SAT and graduated in the top 1% of his high school class. He alleged that Princeton violated civil-rights laws banning discrimination on the basis of race, color and national origin. The complaint was initially rejected, but Mr. Li appealed and the government reopened the investigation in 2008. Seven years later, in 2015, the Obama administration, which strongly supported the use of racial preferences in college admissions and obviously took its sweet time reviewing Mr. Li’s case, issued a report exonerating Princeton.

Last year Mr. Blum’s organization filed a public records Freedom of Information Act request with the Education Department to gain access to the same documents that the federal government used to clear Princeton of any wrongdoing. Mr. Blum’s organization represents a group of Asian plaintiffs who are suing Harvard University over its admissions policies. The judge in that case has ordered Harvard to turn over six years of admissions records, and Mr. Blum suspects that the data will show that Harvard is unlawfully capping Asian enrollment.

America’s Asian population has exploded in recent decades, and Asian attendance at highly selective schools with colorblind admissions, such the California Institute of Technology and the University of California, Berkeley, reflects this demographic trend. At Harvard, however, the percentage of Asian undergrads has remained remarkably consistent for an institution that claims race is not a determining factor in who is admitted. Mr. Blum suspects that Princeton engages in similar shenanigans, but the school has been pressuring the Education Department to deny him the information that he requested more than a year ago.

Concerned that the government was finally going to fulfill the FOIA request, Princeton sued the Education Department on March 17 to block the release of the admissions documents. The suit argues that the material being sought is exempt from FOIA, a claim that the government has rejected. The school also maintains that releasing the data would compromise student privacy, and it likened its admissions process to “trade secrets” that, if exposed, would put Princeton at a competitive disadvantage in attracting students.

Don’t believe it. Admissions officers switch schools all the time, presumably taking knowledge of admissions procedures with them, and the criteria used by elite institutions to evaluate applicants is not the equivalent of an iPhone patent. Nor is student privacy an issue since names, addresses and other personal information can be redacted. Mr. Blum’s organization simply wants the number of Asians who have applied to Princeton, their SAT scores and grade-point averages, and other information that the school used to analyze applicants academically.

What really concerns Princeton is a potential discrimination lawsuit. What ought to concern the rest of us is the apparent determination of elite colleges to punish Asians students for their academic success. Asians have long been the forgotten victims of liberal affirmative-action schemes, subject to unwritten “just for Asian” admissions standards that recall the treatment of Jews in the first half of the 20th century. Princeton wants them to shut up about it. Let’s hope they don’t.

I will say that the act of turning down a perfect SAT is not limited just to Asians, so I don't take that as necessarily proof of discrimination.   Harvard and Princeton (and I suppose other Ivies but I really only know something about these two) seem to take a perverse pleasure in turning down perfect SATs.  I don't have the facts, but I wouldn't be surprised if the admit rate for kids with SAT's one notch short of perfect is better than those with perfect SATs.

My evidence of discrimination is based on years of actually meeting the kids, seeing their scores and resumes, and talking to them about their activities and passions -- and comparing who gets in and who does not.  And, of course, one merely has to look at the percentage of kids with Asian heritage at Princeton and compare it to universities like Berkeley that have color-blind admissions systems.

Large museums can be overwhelming.  I remember a while back, one of the writers at Maggie's Farm blog suggested that the best way to see large museums is to pick one limited section and plan to visit just that section.  I have tried that a couple of times and it is an enjoyable approach, though as a completionist I have trouble walking away when I have not conquered every room (I am that guy, for example, that has to reveal every single square inch of dark space on a Diablo III map).

However, another alternative is just to visit a smaller museum.  Sometimes smaller museums can be disappointing, because the average quality (or at least name-value) of what is being displayed may be lower than in the large museums.  Not so the Frick Museum in New York City.  This is probably my favorite small museum.  The building itself is marvelous, the Fifth Avenue mansion of Henry Frick, Andrew Carnegie's right hand man (among many other ventures).  I first went to the museum years ago because it houses one of my favorite paintings, the Comtesse d'Haussonville by Ingres.  In addition in just 7 or 8 rooms, it has a virtual who's who of western art history, including Rembrandt, Monet, Manet, Renoir, Degas, Gainsborough, Turner, Holbein, Goya, Gilbert Stuart, Whistler, and many others.   The ratio of big names to also-rans is just amazing.  Walking the halls is like watching the actor list in the opening credits of the movie "A Bridge to Far".  My only complaint on this visit is that the Comtesse has been moved to a poor spot for viewing.

Another nice small museum nearby we also went to this weekend was the Neue Gallery, which focuses on German and Austrian art.  My wife loves Klimt, which is the reason we went.  The museum has a very good collection of Klimt and Egon Schiele, neither of which are really my cup of tea but for those who enjoy these artists it is a nice destination.  The third small museum we saw as the Museum of Arts and Design, with a great location on Columbus Circle.  We saw an exhibition of American 60's and 70's age-of-Aquarius style clothing.  There are also a few craft studios where one can watch designers work.  It was fun but probably overpriced for what it was.  However, on the 9th floor we went to the restaurant Robert which was really good -- very good food and drop dead gorgeous views of Columbus Circle, the park, and the rest of Manhattan.  We had a window table and this was the view:

On the far left, 4 or 5 floors up, is Per Se, one of the top restaurants in Manhattan and perhaps the country.  Given how hard it is to get a reservation, this is probably as close as I will come to eating there.

Typically, I see a LOT of people with no intention of working or looking for work collecting unemployment insurance payments.  For example, we have summer workers who take the winter off but still collect unemployment in the winter as if they were looking for work.  Most state governments have no desire to hear about this.  In fact, in California (at least a number of years ago) if you call the unemployment fraud number the only kind of complaint they take is reports of employer fraud.  You can't actually report employee fraud, and the one time I tried to do so I was threatened by a California State employee with dire legal consequences for "harassment" and "retaliation".

The new dodge I saw the other day is when Company A goes to an employee of Company B and offers to hire them away for higher pay.  When the employee leaves B for A, A tells them that they should file for unemployment, claiming they were forced out rather than quit (essentially constructive termination).  In most states, if an employee says one thing (I was forced out!) and an employer says another (She quit!), the employee is almost always believed unless the employer can bring an absurd amount of written evidence to the table to prove otherwise.

Anyway, having convinced the state the employee was terminated rather than quit, the employee collects unemployment benefits.   Then, company A pays the employee in cash under the table an amount per hour less than minimum wage but which in combination with the state unemployment payments does indeed add up to more than they were making at B.  They end up paying less than minimum wage and pay no employment taxes (since it is cash under the table) and the state makes up the difference with an unemployment check.  Company B, by the way, sees its unemployment taxes go way up because these rates are experience-based.

A group of Harvard Law professors wrote an editorial a while back criticizing parts of the movie "A Hunting Ground" -- a movie that from every thing I have seen offers a pretty fertile ground for criticism.   Now, it appears that makers of the movie are considering using Title IX to suppress this criticism they don't like, arguing that since they are (to them) obviously the defenders of women, anyone who criticizes them must be attacking women.  Suffice it to say that this is pretty far afield from what Title IX was meant to accomplish.

One of the professors, Jeannie Suk wrote in the New Yorker:

But last week the filmmakers did more than understandably disagree with criticism of the film, which has been short-listed for the Academy Award for best documentary. They wrote, in a statement to the Harvard Crimson, that “the very public bias these professors have shown in favor of an assailant contributes to a hostile climate at Harvard Law.” The words “hostile climate” contain a serious claim. At Harvard, sexual harassment is “unwelcome conduct of a sexual nature,” including verbal conduct that is “sufficiently persistent, pervasive, or severe” so as to create a “hostile environment.” If, as the filmmakers suggest, the professors’ statement about the film has created a hostile environment at the school, then, under Title IX, the professors should be investigated and potentially disciplined.

To my knowledge, no complaint of sexual harassment has been filed with Harvard’s Title IX office—though I’ve been told by a high-level administrator that several people have inquired about the possibility—and I don’t know if the school would proceed with an investigation. Precedent for such an investigation exists in the case of Laura Kipnis, a feminist film-studies professor at Northwestern University, who earlier this year wrote an article criticizing aspects of Title IX policies and culture and was accused of creating a hostile environment on campus; Northwestern conducted an investigation and ultimately cleared Kipnis of sexual-harassment charges. A handful of students have said that they feel unsafe at Harvard because of the professors’ statement about the film. If a Title IX complaint were filed and an investigation launched, the professors wouldn’t be permitted to speak about it, as that could be considered “retaliation” against those who filed the complaint, which would violate the campus sexual-harassment policy.

It's Stalinists all the way down.

I am on the road and really don't have much time to write, but I feel compelled to give a few thoughts on the whole Amherst College situation that has blown up in social media over the last 24 hours.

Yesterday (Thursday) my son called me to tell me about a sit-in he found himself a part of in the library (I must admit to being vaguely happy he was actually in the library). He is not like me, and tends to observe these kinds of thing with an amazing dispassion.  He is fascinated by people with extreme views and loves to observe them.  For example, he always enjoys stopping and listening to the religious zealots preaching outside of Comicon when we visit.  It is almost an anthropological approach.

So I will say up front that most of the views here are mine, not his, since he reported most of the events as merely something interesting that happened to him.  I also say this because I don't want anyone on campus getting the idea they need to start some sort of totalitarian campaign against him, a fear that you will see is well-justified below.

His main observation of the original sit-in was that people seemed to have enormously negative experiences as persons of color on campus and he found that surprising.  He reported that people talked about their life at Amherst as, say, a black female, being a living hell, one that my son found hard to jibe with the general intolerance in the classroom for even an ambiguously racist comment.

I certainly understand that people of color still face a headwind of at least minor racist B*llshit.   I am reminded of one Amherst student telling me about having guests at a southern country club function trying to order drinks from him because he was black.

But when I grew up in the 60's in Texas racism meant that kids I knew actually went out gay-bashing in Montrose (the traditionally gay district in Houston) and the new black kid in an all-white school got beaten up every day (I will confess I had mixed fealings about both of these, since I was otherwise the bullying target of choice in the class and sometimes appreciated the split focus).  Against this backdrop, it is hard for me to consider a school that gives black applicants a substantial break on SAT scores for entrance and whose President turned around from a trip to London to address concerns of ethnic minorities to be institutionally racist.

Besides, it seems like kind of an insult to your parents and grandparents to call an Anglo wearing a sombrero to a party "violence" when those previous generations faced the real thing.  It's a bit like telling your granddad who lived through the Bataan death march that the University starved you by letting you out of class 30 minutes late for lunch.

One thing my son reported was that there were a lot of threats made against white students who somehow were not present in the library at the sit-in, as if non-presence at an unannounced event was somehow in and of itself racist.   The general tone of the discussion was very authoritarian -- everyone should be forced to be here, everyone should be forced to take diversity courses, etc.

The other thing that came out of the meeting was substantial vitriol aimed at a sign that appeared in a dorm window.  The media has not really been very specific about the sign, but it read "Free Speech 1776-2015".  All things being considered, this was a pretty tame commentary, especially since the protesters themselves kept talking about the concepts of free speech being dated.  But none-the-less, the student who posted it was being treated like the second coming of Adolf Hitler.

So today, some of the students confronted the school President Biddy Martin (who had turned around from a trip to London to meet them) and basically served her with an ultimatum, demanding that on the spot she sign a list of demands listed here.  The demands are alternately non-nonsensical and and totalitarian.  A few highlights:

• The document essentially demands that Ms. Martin and the Board of Trustees apologize for all manner of past sins that have nothing to do with their own actions, or those of the College, or even those of the alumni of the College.

"President Martin must issue a statement of apology to students, alumni and former students, faculty, administration and staff who have been victims of several injustices including but not limited to our institutional legacy of white supremacy, colonialism, anti-black racism, anti-Latinx racism, anti-Native American racism, anti-Native/ indigenous racism, anti-Asian racism, anti-Middle Eastern racism, heterosexism, cis-sexism, xenophobia, anti-Semitism, ableism, mental health stigma, and classism."

This is a sort of secular original sin, and is common among these SJW movement.  The error of racism is that it puts on people an original sin based on the circumstances of their birth which they cannot erase through any sort of good behavior.  This movement shares the same error, putting on whites and straights and rich people and males and the Amherst community and a variety of other groups the same sort of original sin.

I will add one irony, that Ms. Martin is probably a lot closer in her beliefs to the protesters than I am.  I do not know her politics, but it is impossible to imagine she would be made President of Amherst College without being vetted in advance as reliably Liberal/Progressive.  This is not Left vs. Right, but Robespierre turning on his fellow revolutionaries.

• I find this bit scary:  "Amherst College Police Department must issue a statement of protection and defense from any form of violence, threats, or retaliation of any kind resulting from this movement."  I will bet you a million dollars that a) you are thinking this means physical violence or disciplinary action but b) the authors mean "retaliation" to include verbal criticism of any sort, such that this very article would be considered "retaliation".
• "President Martin must issue a statement of apology to faculty, staff and administrators of color as well as their allies, neither of whom were provided a safe space for them to thrive while at Amherst College."  I am willing to believe Amherst is not perfect and that there are *ssholes that make life difficult at times for people of color there, but it would be hard to find another place on the entire planet that is a safer and more welcoming environment for ethnic minorities that Amherst College.  What are they going to do in the real world?
• This paragraph has gotten a lot of attention, as it should:

5.    President Martin must issue a statement to the Amherst College community at large that states we do not tolerate the actions of student(s) who posted the “All Lives Matter” posters, and the â€œFree Speech” posters that stated that “in memoriam of the true victim of the Missouri Protests: Free Speech.” Also let the student body know that it was racially insensitive to the students of color on our college campus and beyond who are victim to racial harassment and death threats; alert them that Student Affairs may require them to go through the Disciplinary Process if a formal complaint is filed, and that they will be required to attend extensive training for racial and cultural competency.

The author of the fee speech poster needs to be punished because, why?  Because he or she was obviously dead-on correct in their analysis of the movement's goals?  Essentially they are saying, "yes you are right, we want to destroy free speech but you are not allowed to tell people that is what we are doing."

• I have no problem with ditching "Lord Jeffs" as a mascot. First, it is a terrible mascot name.  Second, while ironically Amherst would have been considered a pretty enlightened and tolerant master by the colonists of the time, he did suggest the whole TB blankets to the Native Americans thing and since that is the only story anyone knows any more about him, its really a bad association.  I suggest "Redskins" instead  (OK, just kidding.  I am not a Redskin name supporter.)  The "moose"  (Meese?) suggestion is awful.  I would support a Dartmouth style solution of calling them the "Purple" before I could climb on board with "moose".  Or maybe in the spirit of the times they can be the "mauve".As an aside, Amherst College has a nice little art museum (which owes most of its existance to Standard Oil money, which I am sure the faculty and students try to ignore).  There is a really interesting portrait of Lindberg there I have never seen before.   Anyway, all the pictures have a short descriptor about the work as one would expect.  EXCEPT the one for the painting of Lord Amherst himself, which has a descriptor about 20 inches long because about 18 inches have been tacked on up front making sure everyone understands what a horrible idea the TB blankets were.  It reminds me of the Enola Gay in the Smithsonian, which I am told is still without any kind of label or plaque because no one could agree on how much vitriol needed to be spilled in the description about how bad dropping atomic bombs on civilians is.  Which gives me the idea that every portrait in a public space of FDR needs to begin by talking about the unconscionable internship of Japanese and every portrait of Wilson needs to start with what an awful racist he was. Time to rename the Wilson school at Princeton!

I need to try to be fair to Yelp.  A reader sends me some second-hand comments from an ex-employee at Yelp:

He absolutely believes that there is no way for Yelp to hide or promote reviews just based on who the company is. This doesn't mean that they're not, of course. What my colleague says, though, is that the overriding criterion that they use to determine if a review should be "recommended" is if they can verify that the writer is a real person.

There are a couple ways you can do this, but two that will actually cause all of your past reviews to suddenly become recommended:

1) Work for Yelp--not really helpful, I know. I am told that Yelp will instantly fire anyone who leaves reviews while working there. But, once you leave, all of your reviews will always be recommended.

2) Connect your Yelp account to your Facebook, then connect with 100 friends.

There are other ways to have past reviews always come up recommended. If you post a review or several reviews, and, in aggregate, you get four interactions (they are marked as funny, cool, or useful), this will happen.

So I went back and looked.  To see if one's reviews are in the non-recommended purgatory, you have to log out (Yelp will pretend to you that you are recommended until you log out**).  Sure enough, all my 9 reviews seem to be in purgatory.  In other words, any effort I expended on reviews has been wasted, because Yelp does not show them.  I tend to write longer reviews, so apparently writing fewer more detailed reviews is not a practice Yelp wants to promote.  Do they prefer folks who spam lots of short reviews?  I can see how that may be, since more reviews bulk up Yelp's numbers.

I don't know what to make of this feedback.  At one level, it seems right and makes sense.  There are a lot of not recommended reviews where the review has just that one review.  But not always.  For example, for this store, reviewers with no picture, no name (just initials), just 2 total reviews and no friends are recommended, but someone who has a picture, a real name, 1 friend and 31 reviews is not.   I have to say that either their algorithm has some purposely random element (to defeat reverse engineering) or else there are other factors involved than just the ones listed above.  Also, some of the advice above simply has to be wrong.  For example, the last sentence makes no sense since it is impossible to upvote or favorite reviews in not-recommended purgatory (they don't even give you the buttons to do so).

I will post some more reviews over time to see if I get pulled out of spam status by their computer, or if I am permanently exiled based on a corporate complaint.

** By the way, this could be the subject of a gripe in and of itself.  It should not be so opaque that one's posts are all getting sent to the Yelp spam folder.  It is kind of insulting to invest this effort and then find out later Yelp is trashing everything I write.

Rising minimum wages are bad enough, but generally we can offset them with price increases (remember that, though, next time you get ticked off about your camping fees going up).  As an aside, not every business is in a competitive position that they can do this.

But the new Obama Administration rules greatly scaling back on our ability to have our managers be exempt employees is far, far worse.  Because its not just money, but it changes the entire relationship between me and my managers.  Most of my managers don't want to be hourly employees (you should see the complaint emails I am getting since I announced that this is likely coming) and have pride they have moved beyond timeclock punching.  Also, I think a lot understand they are not going to make more from this, and they may even make less.  To the extent they are working overtime today (and they all are) they will not be allowed to work overtime in the future.  So I will have to hire someone else to do those extra tasks, and that person's salary is likely to come in part from what the managers are making now.

These next few months I am having all of my salaried managers fill out time sheets just for analytical purposes.  I need to know how bad this is going to be.  If you run a business, you shouldn't be waiting for next year to do something, you need to be thinking and analyzing right now how you are going to handle these rules.

I wrote a long article on this here.  Stephen Miller has more in the same vein (via Overlawyered great wage and hour news roundup).  Here is a taste:

In McCutchen's view, the administration fails to understand that "it's still the same pot of money that's available to compensate the employee," whether a worker is classified as exempt or nonexempt. So if overtime pay is required, a likely result will be to strictly limit overtime hours worked, despite the adverse effect on productivity, rather than—as the administration expects—to increase the employee's annual compensation.

While many non-executive employees view themselves as professionals and react negatively when shifted to hourly compensation, "the DOL wants nearly everyone to be nonexempt, and to sign in and clock out as do unionized workers," McCutchen contended. "They don't believe that some employees prefer to be salaried, with guaranteed pay and the flexibility to adjust when they do their work."

Postscript:  I guess I just don't understand the vision that is in the head of Progressives.  How does it help their stated goal of empowering the average Joe to convert him from a valued, up-and-coming junior manager to a 40 hour a week timeclock puncher?  How will people ever be able to migrate from lower end jobs to management positions if there are not junior manager positions in which they can demonstrate their energy and dedication?  I suppose they must believe that junior managers will still be doing the same things and working the same hours, but just earning lots of extra overtime with these new rules.  If that is really what they think, they are completely divorced from reality.

About a week or so ago I wrote a long and detailed post (with frequent updates as I discovered new information) about my extreme dissatisfaction with my workers compensation insurance from Applied Underwriters, a Warren Buffet-owned insurance company.  I also wrote a shorter, parallel review on Yelp** (where Applied Underwriters already has an abysmal rating).  For reasons I will guess at in the next post, Yelp keeps marking my post as "not recommended" despite the fact that it is one of the few that is not just a rant of the sort "this company sux" but actually has real details.  There is a tiny almost invisible link at the bottom to see other reviews not recommended.

Yesterday, I received a letter from Applied Underwriters (Letter here (pdf)) demanding that I take down the Yelp review and my blog post or else they will sue me for libel.  Based on my understanding of libel law, the content of my posts (which are all legally protected opinion), and recent court cases, Applied Underwriters has essentially no chance of ever winning such a suit.  But my guess is that this is not their intention.  I presume they are hoping that the fear of legal action, and the expense of legal defense, will cause me to stop my perfectly valid public criticism of their product.

I am seeking legal advice from a well-known First Amendment attorney, so Applied Underwriters will get my final response after I have had advice of counsel.  But here are a few thoughts:

You can read the attorney's letter in full if you are a fan of such things, but if you read sites like Popehat much, you can pretty much predict what you will see.

The gist of their complaint, from the only paragraph of mine quoted in the letter, seems to be the word "scam".  By the text of their letter, they seem to believe that "scam" is libelous because their company is well-rated financially and that they provide reasonable claims service.  I concede both these facts.  However, I called it a "scam" because there is a big undisclosed cost to their product that was never mentioned in the sales process, and that could only be recognized by its omission in the contract I signed -- that there is nothing in the contract committing them to any time-frame under which to return deposits and excess premiums I have paid, which may well amount to hundreds of thousands of dollars.  This fact about the contract is confirmed by their customer service staff, who have said further that the typical time-frame to return such over-collections and deposits is 3-7 years after the contract ends, or at least 6-10 years after the first of the deposits was made.

If I had gotten any descriptions of their service terms wrong, I would have been happy to correct them.  Hell, given that apparently Applied Underwriters will hold over $200,000 of my money for as many as ten years before they maybe return it to me, I am hoping I somehow have misunderstood.  Unfortunately, their staff is pretty adamant that I understand these terms perfectly, and you will see that the letter sent by the attorneys does not attempt to refute any of the specific issues that drive my negative review.  And of course none of this was ever disclosed in the sales process.  The company attorneys point to the fact that I read the agreement and signed that I understood, but in fact this issue is only in the agreement by its omission.  In its 10 pages of arcane boilerplate, the agreement never includes any clause giving them any legal obligation to return your deposits and excess premiums in an defined timeframe.  It is that omission that I missed.   Would you have caught it?  Is this a substantial enough issue that you would expect disclosure in the sales process?

So is this a "scam"?  I believe that this issue is costly enough, and hard enough to detect, and far enough outside of expected business practices to be called such.  You may have your own opinion, but ask yourself -- When you enter into, say, a lease and have to put down a security deposit, is it your reasonable expectation that the landlord has the right in your lease to keep your deposit for 3-7 years (or more) after you move out?  Oh, and by the way, how might your evaluation of something as a "scam" be affected by the knowledge that the company is threatening to sue anyone who writes a negative review?

Anyway, I take responsibility for my own failure as a consumer here.  But in a free society it is perfectly reasonable to communicate issues one has with a product or service to help others avoid similar mistakes.  Which is what I have done.

**  I have problems with Yelp as well.  What is linked is not my original review.  My original review linked to my blog post.  Yelp took it down.  I will tell that saga in a future post.

I have mentioned a number of times my chicken or the egg arguments with Progressives on the solution to cronyism.  Is the problem that government power exists to influence markets, and as long as it exists people will bid to control it?  Or is it possible to wield massive make-or-break government power over industry rationally, and only the rank immorality and corrupt speech of corporations stands in the way.  The former argues for a reduction in government power, the latter for more regulation of corporations and their ability to participate in the political process.

I believe this is an example in favor of the "power is inherently corrupting" argument.  No corporation lobbied for NOx rules on diesel engines.  They all fought it tooth and nail.  But once these regulations existed, engine makers are all trying to use the laws to gut their competition:

In 1991, the EPA ignored complaints from several makers of non-road engines that rivals were cheating, in order to save fuel, on emissions rules for oxides of nitrous (NOx). Then environmental groups took up the same complaint, whereupon the agency demanded face-saving consent decrees with numerous engine makers, including two Volvo affiliates.

In essence, the engine makers apologized by agreeing in 1999 to accelerate by a single year compliance with a new emissions standard scheduled to take effect in 2006.

Meanwhile, with another NOx standard looming in 2010, Navistar sued the EPA claiming rival engine-makers were seeking to meet the rule with a defective technology. In turn, Navistar’s competitors sued claiming the EPA was unfairly favoring a defective technology pursued by Navistar (these are only the barest highlights of what became a truck-makers’ legal holy war).

While all this was going on, a Navistar joint-venture partner, Caterpillar, complained that 7,262 Volvo stationary engines made in Sweden before 2006 had violated the 1999 consent decree. Now let’s credit Caterpillar with a certain paperwork ingenuity: The Volvo engines were not imported to the U.S. and were made by a Volvo affiliate that wasn’t a party to the consent decree. EPA itself happily certified the engines under its then-current NOx standard, only changing its mind four years later, prodded by a competitor with a clear interest in damaging Volvo’s business.

To complete the parody, a federal district court would later agree that the 1999 consent terms “do not clearly apply” to the engines in question, but upheld an EPA penalty anyway because Volvo otherwise might enjoy a “competitive advantage” against engines to which the consent decree applied.

As a side note, this is from the "oops, nevermind" Emily Litella School of Regulation:

Let it be said that the EPA’s NOx regulation must have done some good for the American people, though how much good is hard to know. The EPA relies on dubious extrapolations to estimate the benefits to public health. What’s more, the agency appears to have stopped publishing estimates of NOx pollution after 2005. Maybe that’s because the EPA’s focus has shifted to climate change, and its NOx regulations actually increase greenhouse emissions by increasing fuel burn.

Readers will know of my pet peeve on this issue.  It turns out this has come up as a viewer complaint at the BBC several times and they actually have a policy on it, though like many media organizations they don't consistently follow their own guide.

You can see many examples simply by searching google images for "air pollution".  The people riding bikes with masks are in actual pollution.  The rest of the photos on the first page are mainly steam plumes.  Note how the photographers like to catch the steam at dusk or backlit so they look dark and sortof smokey.

Today I had to do my annual renewal of my corporate registration in Arizona.  As in most states, this involves a bit of information foreplay followed by the purpose of the exercise -- sending in a check to the corporation commission.

But here is the extraordinarily scary part -- I started the annual reporting process by just typing in the name of my company and getting started.  There was no password protection, no identity check.  They had no way of knowing I had anything to do with this corporation and yet I was answering questions like "have you been convicted for fraud."  The potential for mischief is enormous.  One would have to get the timing right (an annual report must be due before one can get in) but one could easily open the site on January 1 and start entering false information in the registrations for such corporations as Exxon and Wal-Mart.

See for yourself.  .  Below is a screen shot of the site letting me in to edit one of Wal-Mart's corporate registrations in Arizona:

Again, note what I am saying.  This is not the result of hacking.  This is not lax security I figured out how to evade.  This is the result of no security whatsoever.  I simply went to the link above, clicked on the Wal-Mart Associates link, and then clicked on the annual report link.  I know from doing my own registration that there is a signature page at the end, but all you do is type in the name of an officer and a title -- data that is right there on the site.  It's like asking you for a password after the site just listed all the valid passwords.

If I disliked Wal-Mart, I could put all kinds of crazy garbage in here.  I did not go further, because I would have had to answer these questions to proceed and I had no desire to mess with another company's critical data, but if I had gone further I could have changed their mailing address, the names of their officers, etc. -- all I had to do was just pay the $60-ish registration fee for them and they would have a big mess on their hands to sort out.   If I had access to a fake or stolen credit card and a public computer, I could have done it all without any hope of being traced.

By the way, from my experience, this is not unique to Arizona.  This criminally lax behavior seems to be the norm in most states.

I have submitted this all as a complaint to the state, so far with no response.  If anyone in AZ knows how I can get someone's attention with this, let me know.

From Lee Goodman on an opinion piece in the WSJ

This startling assertion of government power became public in December when the FEC released an enforcement file in the case of a Boston television station's regular Sunday-morning news program, "On the Record." The station, WCVB, had invited two congressional candidates (a Democrat and a Republican) into its studio to appear on "On the Record" in the weeks leading up to the 2012 election and formatted the joint appearance as a 30-minute debate.

Another candidate (a libertarian) who was not invited filed a complaint alleging that the value of WCVB's production costs and airtime constituted unlawful corporate contributions to the two candidates who were invited.

Wow, I am sure glad the "libertarian" is pushing for government regulation of speech and government restrictions on the decision-making of private businesses.

One of my favorites writers Megan McArdle comments on my post about the regulatory excess in California.  The same post was linked by Reason as well.  The Reason post got the attention of Ron Paul, who will be interviewing me for his radio show next week.

I posted a few updates on the article today:

Wow, reading this again, I left out so much!  An employee once sued us at this location for harassment and intimidation by her manager -- when the manager was her sister!  It cost me over $20,000 in legal expenses to get the case dismissed.  I had an older couple file a state complaint for age discrimination when they were terminated -- despite the fact that our entire business model is to hire retired people and the vast majority of our employees are 70 and older.  And how could I have forgotten the process of getting a liquor license?  I suppose I left it out because while tedious (my wife and I had to fly to California to get fingerprinted, for example), it is not really worse than in other places -- liquor license processes are universally bad, a feature and not a bug for the established businesses one is trying to compete with.   We gave the license up pretty quickly, when we saw how crazy and irresponsible much of the customer base was.  Trying to make the place safer and more family friendly, we banned alcohol from the lake area, and faced a series of lawsuit threats over that.

Because the government exempts itself from the most basic rules that apply to private companies.

Raising concerns about consumer privacy, California's health exchange has given insurance agents the names and contact information for tens of thousands of people who went online to check out coverage but didn't ask to be contacted.

The Covered California exchange said it started handing out this consumer information this week as part of a pilot program to help people enroll ahead of a Dec. 23 deadline to have health insurance in place by Jan. 1.

State officials said they are only trying to help potential customers find insurance and sign up in time. But some insurance brokers and consumers who were contacted said they were astonished by the state's move.

"I'm shocked and dumbfounded," said Sam Smith, an Encino insurance broker and president of the California Assn. of Health Underwriters, an industry group.

Smith said he was under the impression from the exchange that these consumers had requested assistance. He received the names of two consumers this week but has not yet contacted them.

"These people would have a legitimate complaint," Smith said.

The names provided include people who started an insurance application on the Covered California website since enrollment launched Oct. 1, but for whatever reason never picked a health plan or completed the sign-up process.

The state said it provided information on tens of thousands of people who logged into the state's website, but it didn't know the exact number.

The exchange said agents were given names, addresses, phone numbers and email addresses if available.

If the Left is really as passionate as they say they are about taking on people and institutions who are anti-science, then they should be dedicating themselves to rethinking the current tort system.  Toyota may be facing $5 billion in settlements due to a defect that government reports and independent studies say is not there.

And recall NHTSA's performance during the furor almost four years ago over alleged runaway Toyotas. Its then-overseer, Transportation Secretary Ray LaHood, happily participated in congressional hearings designed to flog for the benefit of trial lawyers the idea of a hidden bug in Toyota's electronic throttle control.

When the agency much more quietly came out with a report a year later debunking the idea of an electronic defect, notice how little good it did Toyota. The car maker still found it necessary to cough up $1.2 billion to satisfy owners who claimed their cars lost value in the media frenzy over a non-defect. Toyota has also seen the tide turning against it lately as it resists a deluge of accident claims.

At first, opposing lawyers were hesitant to emphasize an invisible defect that government research suggested didn't exist. That was a tactical error on their part. In an Oklahoma trial last month involving an 82-year-old woman driver, jurors awarded $3 million in compensatory damages and were ready to assign punitive damages in a complaint focused on a hypothetical bug when Toyota abruptly settled on undisclosed terms.

In another closely-watched trial set to begin in California in March, an 83-year-old female driver (who has since died from unrelated causes) testified in a deposition that she stepped on the brake instead of the gas. The judge has already ruled that if the jury decides to believe her testimony, it is entitled to infer the existence of a defect that nobody can find.

These cases, out of some 300 pending, were chosen for a reason. Study after study, including one last year by the University of North Carolina Highway Safety Research Center, finds that elderly female drivers are inordinately prone to "pedal misapplication." If Toyota can't prevail in these cases, the company might be wise to run up the white flag and seek a global settlement that some estimate at upwards of $5 billion—quite a sum for a non-defect.

Walter Olson has an article on three recent 5-4 decisions where we narrowly avoided Supreme Court rulings that would have further separated liability as a business owner from actual bad actions.  This one in particular resonates with me:

Vance raised the question of who counts as a “supervisor” for purposes of harassment liability. Under existing Court precedent, employers are more or less automatically liable when a “supervisor” engages in harassment. When it’s a co-worker, they are still frequently liable – e.g., if they have received a complaint about it but not fixed things, or if they have negligently allowed the situation to develop – but liability isn’t as close to automatic. As all Justices recognized, however, the old model of a workplace with a military-like chain of command is fast giving way to newer models in which it is extremely hard to tell who is supervising whom, and in particular work orders (“Here, do this for me.”) can issue in multiple directions, not just from “up” to “down.” The four liberal justices were happy to blur the lines by saying that the more people are doing supervisor-like things, the more employees’ misconduct will be imputed automatically to the employer with no chance for it to raise counterarguments that it had acted properly. The majority led by Justice Alito more reasonably recognized that the ability to take tangible employment actions against a co-worker is a better test of “supervisor” than the ability to ask them to undertake some work responsibility.

Last year I got sucked into a lawsuit where an ex-employee, after her termination, sued our company for allegedly racist remarks another employee made about her husband.  The lawsuit was the first we ever heard about the alleged incident -- it was never reported to me or any other manager or employee, it was behavior that was banned by our policies and training, and we never (obviously) had a chance to make any corrections.  The litigant tried to argue that the person who made the alleged remarks was "supervisory" because she had sometimes been asked to draft a shift schedule for the manager.

We eventually had this dismissed, but it cost us $25,000 in legal fees to make it go away.   It was particularly frustrating given that if this had ever been raised as an issue to me, it would have been investigated and heads would have rolled if necessary.  This whole notion of having liability even when operating to the highest standards is just terrifying.  And four Supreme Court justices tried to make all this irrelevant, essentially linking my liability to the standards and intelligence of whoever is my weakest employee.

I am happy to see the public school system coming in for much-deserved criticism.  I don't have anything to add to this article that I have not already said about schools many times.  But I want to make one complaint about a chart used in the blog post:

SAT scores are a terrible metric for measuring academic performance over time.

First, I am not at all convinced that the test scoring does not shift over time (no WAY my son had a higher score than me, LOL).

But perhaps the most important problem is that all students don't take the SAT -- it is a choice.  Shifts in the mix of kids taking the test -- for example, if over time more kids get interested in college so that more marginal academic kids take the test -- then the scores are going to move solely based on mix shifts.  Making this more complicated, there is at least one competitive test (the ACT) which enjoys more popularity in some states than others, so the SAT will represent an incomplete and shifting geographic mix of the US.  Finally, as students have gotten smarter about this whole process**, they gravitate to the ACT or the SAT based on differing capabilities, since they test in different ways.

To me, all this makes SAT scores barely more scientific than an Internet poll.

** If you have not had a college-bound student recently, you will have to trust me on this, but parents can spend an astounding amount of time trying to out-think this stuff.  And that is here in flyover country.  Apparently private school parents on the East Coast can be absurd (up to and including hiring consultants for 6 figures).  A few years ago it was in vogue to try to find your kid a unique avocation.  Violin was passe -- I knew kids playing xylophone and the bagpipes.  A friend of mine at a high profile DC private school used to have fun with other parents telling them his son was a national champion at falconry, the craziest thing he could make up on the spur of the moment at a cocktail party.  Other parents would sigh enviously, wishing they had thought of that one for their kid.