Coyote Blog

Please stop tell me that I have no right to question Al Gore when he wants to take over the world economy to his own ends.  And please stop telling me that catastrophic man-made global warming is now beyond question:

One of the many disturbing aspects of global warming hysteria is the
way moonbats who use it to promote their ominous political agenda
insist on a consensus that simply does not exist. A recent survey
of more than 12,000 environmental scientists and practitioners by the
National Registry of Environmental Professionals shows that despite the
hysteria and considerable pressure to conform to the "correct" view,
many scientists are choosing skepticism over the safety of the herd.

The survey found that:

• 34% disagree that global warming is a serious problem;
• 41% disagree that warming trends "can be, in large part, attributed to human activity";
• 71% disagree that human activity has significantly contributed to hurricanes;
• 33% disagree that the US government is not doing enough about global warming;
• 47% disagree that international agreements such as the preposterous
  Kyoto Protocol provide a useful framework for addressing global climate
  change.

There are good reasons to believe in some man-made global warming, but there are very good reasons to doubt it will be as catastrophic as portrayed in the media, and very, very good reasons not to hand over the throttle of the world economy to environmental groups in anticipation of such uncertain events.  My position on the skeptical middle ground on climate change is here.

Michael strong has a great article in TCS Daily about Chinese citizens pulling themselves out of poverty:

Between 1990 and 2002 more than 174 million people escaped poverty in China,
about 1.2 million per month.

In part he credits America's newest great Satan, Wal-mart:

With an estimated $23 billion in Chinese exports in 2005 (out of a total of $713
billion in manufacturing exports),[2] Wal-Mart might well be single-handedly responsible for
bringing about 38,000 people out of poverty in China each month, about 460,000
per year.

There are estimates that 70 percent of Wal-Mart's products are made in
China.[3] One writer vividly
suggests that "One way to think of Wal-Mart is as a vast pipeline that gives
non-U.S. companies direct access to the American market." [4] Even without considering the $263 billion in
consumer savings that Wal-Mart provides for low-income Americans, or the
millions lifted out of poverty by Wal-Mart in other developing nations, it is
unlikely that there is any single organization on the planet that alleviates
poverty so effectively for so many people.[5] Moreover, insofar as China's rapid manufacturing growth
has been associated with a decline in its status as a global arms dealer,
Wal-Mart has also done more than its share in contributing to global peace.[6]

It is almost certain that abusive practices exist in some of Wal-mart's Chinese suppliers -- in particular, slavery and compelled work must end and be opposed by all of us.  But wages that are "too low" is not one of these abuses.  In fact, wages at these suppliers, that comfortable middle class Americans decry as too low from the safety of their Pottery Barn couch, are actually a victory for Chinese workers.  Strong provides the context that is always missing from attacks on Chinese wages:

If we care about alleviating global poverty we need to take this fact
seriously. Without Wal-Mart, about half a million of these people each year
would be stuck in rural poverty that is, for most of them, far worse than
sweatshop labor.

And he provides some context as well for the futility of charitable aid:

Other than economic growth, there is no way to double the salaries of a 100
million people (and growing). After the 2004 Asian Tsunami, more than one-third
of Americans gave more than $400 million in charitable aid, an extraordinary
outburst of giving by any standard. And yet there are more than 630 million
rural Chinese remaining, many of whom are living on less than a dollar per day.
While each would welcome a charitable dollar if we could get it to them, that
charitable dollar, representing one good day's worth of income, would not do
them nearly as much good as would a job in the city paying twice as much day in,
day out. Charity cannot take place on an adequate scale to solve global
poverty.

I made similar points in my post several years ago on why progressives hate capitalism:

Progressives do not like American factories appearing in third world
countries, paying locals wages progressives feel are too low, and
disrupting agrarian economies with which progressives were more
comfortable.  But these changes are all the sum of actions by
individuals, so it is illustrative to think about what is going on in
these countries at the individual level. 

One morning, a rice farmer in southeast Asia might faces a choice.
He can continue a life of brutal, back-breaking labor from dawn to dusk
for what is essentially subsistence earnings.  He can continue to see a
large number of his children die young from malnutrition and disease.
He can continue a lifestyle so static, so devoid of opportunity for
advancement, that it is nearly identical to the life led by his
ancestors in the same spot a thousand years ago.

Or, he can go to the local Nike factory, work long hours (but
certainly no longer than he worked in the field) for low pay (but
certainly more than he was making subsistence farming) and take a shot
at changing his life.  And you know what, many men (and women) in his
position choose the Nike factory.  And progressives hate this.  They
distrust this choice.  They distrust the change.  And, at its heart,
that is what the opposition to globalization is all about - a deep seated conservatism
that distrusts the decision-making of individuals and fears change,
change that ironically might finally pull people out of untold
generations of utter poverty.

I'm not really into all that crime drama and true crime stuff.  I have not watched a singled episode of either CSI:Whatever or America's Most Wanted.  I don't even know what the whole Scott Peterson thing was about.  But from 1996 to 1999, I lived in Boulder, Colorado.  And for much of that time, the murder of JonBenet Ramsey dominated the news.  You may think you got tired of hearing about it, but in Boulder we lived in it like a fish lives in water.  There was no escaping it.  One could become an expert on the case just by osmosis.  The local paper seemed to have a whole section dedicated to the case.  The US could have invaded a small nation in Asia and I would have missed it in those years.

That being said, I can't believe this guy they arrested in Thailand did it.  Or at least did it alone.  There is just too much evidence in the case that if the murderer was not one of the parents, it at least had to be someone very close to the family.   I won't bore you with specifics:  If you don't know it all by heart, you certainly don't want to hear it from me.  But someone will somehow have to explain all the ransom note stuff.  Someone who knew JonBenet would have an incentive to fake up the ransom note as a way to create a motive for the killing that diverted police attention away from people close to the child (who are always the police's first suspects).  But why would a mysterious third party feel such a need, and how did the ransom demand exactly match the amount of Mr. Ramsey's recent bonus check?  And if the Ramseys are entirely innocent, they have a lot of explaining to do about why they did absolutely everything they could to impede the investigation into the daughter's death.   Already his story is breaking down.  I guess the guy could conceivably be involved but in that case expect the story to be bizarre.

Update: In searching for news on this case, I found this insightful analysis of her murder based on astrology:

This opposition squares another opposition: the
opposition between the Sun and the Moon. The Sun often represents the
father in a birthchart
and the Moon the mother, and here it appears that the father was the
more nurturing parent and the mother was more dominant. Jonbenet's Moon
conjuncts the Midheaven, or cusp of the tenth house of career and
public life, showing Patsy Ramsey (Moon) was instrumental in Jonbenet's
young stage life (having herself been a beauty queen). The Sun, or the
father, is conjunct the cusp of the fourth house of the home and
Jonbenet may have been close to her father, but the square of both Mars
and Pluto to both the father and mother archetypes (Sun and Moon) shows
that there was very little safety in the relationship with either
parent. Pluto in particular, when in challenging aspect to the Sun (the
essential Spirit) and the Moon (emotional security and safety), can be
deeply frightening and there is a sense that the parents, and life
itself, are dangerous.

LOL, this is only a short taste of a much longer analysis.

Ted Frank has this update on Vioxx litigation, and it couldn't possibly be more depressing:

Take, for example, the last
case Merck lost, that of Leonel Garza in south Texas. Mr. Garza, who
was said by plaintiffs to have taken Vioxx for three weeks, was a
71-year-old overweight smoker, with high cholesterol, decades of heart
disease, and a history of a heart attack and a quadruple bypass, yet a
jury awarded his survivors $7 million in "compensatory" damages, and
punitive damages to boot

He goes on to recount the very reasonable suspicion that Garza may not have even taken Vioxx at all, as he never had a prescription and his doctor has denied that he passed Garza a series of free samples in little brown bottles.

So out of eleven cases that
have gone to trial or almost gone to trial, there is a reasonable
suspicion that plaintiffs faked Vioxx usage in as many as five of them.
How many more of the tens of thousands of pending plaintiffs have
similar flaws?

He concludes with this excellent point:

Perhaps appellate courts
will get around to correcting these travesties, but the plaintiffs' bar
is counting on enough bad verdicts to slip through the cracks to make
these cases profitable.

The equation of expected returns is certainly helped by the fact
that no one is even suggesting that presenting this sort of
questionable evidence is unethical, much less illegal. Drug safety is
important, but so are the health costs from vaccines and drugs not
marketed because of liability risks. If the judicial system cannot
police itself adequately, the question then becomes why we want to
entrust national drug safety policy to an elected judge and a handful
of randomly selected jurors in Starr County, Texas?

Props to Merck for fighting each and every case so far and resisting the mass tort pressure to start offering settlements to anyone who asks for one.

I write in this blog often on my frustrations with regulation, but last night I learned, if I did not know it already, that things could be much worse.  I had dinner with some friends in London who are in the middle of a home improvement and renovation project on their 1830's era townhouse.  Now, I just completed a renovation of my own (1980's era) home in Phoenix, and, while home improvement is always frustrating, I at least had few problems with the city.  Phoenix will let you do about anything you want to your home as long as you respect your setbacks and don't install a nuclear reactor.

My London friends were not so lucky.  Their home is rated a class 2 historic structure, which means it gets a bit less scrutiny than class 1 palaces and stuff, but it still comes in for a lot of regulation.  Their plans had to be approved in detail, and I mean in gory detail, with the local history Nazis.  And this is for a building that really has little historic or aesthetic value (the owners would be the first to admit this) in a neighborhood that was nearly blighted thirty years ago. 

My hosts pointed out the dining room lighting, which was really dim (you could not see your food very well) band told me that the authorities would not let them add lighting fixtures to the room.  No doorways, moldings, or walls could be changed.  The funniest example of this was a doorway cut in a wall 20 years ago.  The government inspector came through the house and said "well, that door is not historic but I like it so you can't change it."  They thought the inspector was joking, but, after a lot of effort to get approval to change the door, found out she was not kidding. 

The staircase to the top floor (originally the servant's quarters) was steep and unsafe for their children, but the inspector insisted it could not be changed because the "logic" of having the servant's quarters accessible by a difficult staircase needed to be maintained.  The homeowners rebuttal that they had no servants and were more concerned with safety than the history of class differences in Britain had no effect.  In several cases where the homeowners argued that the portions of their house they wanted to change was not original to the house (and therefore not covered by restrictions) it was made clear that the burden of proof was on them, the homeowners, and not on the government.

As one other funny sidebar, the basements and below grade areas of these homes apparently don't fall under this scrutiny or are exempted in some way.  As a result, everyone in his neighborhood seems to be tunneling out into their backyards to expand their house.  One homeowner bought three adjacent homes and tunneled out enough area for an indoor underground swimming pool.

Can you imagine if someday the US government decided that those 1970's homes were subject to such historic restrictions?  Suddenly, by government fiat, instead of being stuck forever with insufficient lighting and unsafe staircases, you might get stuck with orange shag carpet and gold-mirrored walls.  If you think this is ridiculous, read this.

Suffice it to say, I am tired of a relatively small group of people imposing their wishes on other people's property, a practice I call eminent domain without compensation.  If you want something specific done to a piece of property, then buy it and have at it.

Via the Consumerist:

When Greenpeace mobilized to protest nuclear energy at a recent appearance by
President Bush to promote his nuclear energy policy, they forgot to fill in all
the boiler-plate.

From the Greenpeace anti-nuclear-armageddon flier. Capitals and brackets are
theirs:

In the twenty years since the Chernobyl tragedy, the world's worst nuclear
accident, there have been nearly [FILL IN ALARMIST AND ARMAGEDDONIST FACTOID
HERE]."

LOL.  By the way, I am not sure why those paranoid about global warming would refuse to reconsider nuclear power.   In that article, i pointed out that a different regulatory regimed would greatly reduce costs and actually enhance safety:

If aircraft construction was regulated like nuclear power plants,
there would be no aviation industry.  In the aircraft industry,
aircraft makers go through an extensive approval and testing process to
get a basic design (e.g. the 737-300) approved by the government as
safe.  Then, as long as they keep producing to this design, they can
keep making copies with minimal additional design scrutiny.  Instead,
the manufacturing process is carefully checked to make sure that it is
reliably producing aircraft to the design already deemed safe.  If
aircraft makers want to make a change to the aircraft, that change must
be approved with a fairly in-depth process.

Beyond the reduction in design cost for the 2nd airplane of a series
(and 3rd, etc.), this approach also yields strong regulatory benefits.
For example, if the
in a particular aircraft, then the government can issue a bulletin to
require a new approved design be retrofitted in all other aircraft of
this series.  This happens all the time in commercial aviation.

One can see how this might make nuclear power plant construction
viable again.  Urging major construction companies to come up with a
design that could be reused would greatly reduce the cost of design and
construction of plants.  There might still be several designs, since
competing companies would likely have their own designs, but this same
is true in aerospace with Boeing, Airbus and smaller jet manufacturers
Embraer and Bombardier.

And a while back I linked to a story on how the ultimate fallout from Chernobyl was not nearly as bad as was feared.  That article said in part:

Over the next four years, a massive cleanup operation
involving 240,000 workers ensued, and there were fears that many of
these workers, called "liquidators," would suffer in subsequent years.
But most emergency workers and people living in contaminated areas
"received relatively low whole radiation doses, comparable to natural
background levels," a report summary noted. "No evidence or likelihood
of decreased fertility among the affected population has been found,
nor has there been any evidence of congenital malformations."

In
fact, the report said, apart from radiation-induced deaths, the
"largest public health problem created by the accident" was its effect
on the mental health of residents who were traumatized by their rapid
relocation and the fear, still lingering, that they would almost
certainly contract terminal cancer. The report said that lifestyle
diseases, such as alcoholism, among affected residents posed a much
greater threat than radiation exposure.

Over the past fifty years, a powerful driving force for statism in this country has come from technocrats, mainly on the left, who felt that the country would be better off if a few smart people (ie them) made the important decisions and imposed them on the public at large, who were too dumb to make quality decision for themselves.  People aren't smart enough,they felt, to make medication risk trade-off decision for themselves, so the FDA was created to tell them what procedures and compounds they could and could not have access to.  People couldn't be trusted to teach their kids the right things, so technocrats in the left defended government-run schools and fought school choice at every juncture.  People can't be trusted to save for their own retirement, so  the government takes control with Social Security and the left fights giving any control back to individuals.  The technocrats told us what safety equipment our car had to have, what gas mileage it should get, when we needed to where a helmet, what foods to eat, when we could smoke, what wages we could and could not accept, what was and was not acceptable speech on public college campuses, etc. etc.

Throughout these years, libertarians like myself argued that there were at least three problems with all of this technocratic statism:

• You don't have the right to make decisions for other people. Period.  No matter how high-minded and idealistic you want to portray
  it, at the end of the day you are proposing to use force to coerce another man into doing your will.  You may stop them from using force or fraud against others, but an adult may make decisions for themselves, even if they are bad.  I am reminded of a great line from the HBO show Deadwood, "Can you let me go to hell the way I want to?"

• You can't make better decisions for other people, even if you are smarter, because every person has different wants, needs, values, etc., and thus make trade-offs differently.  Tedy Bruschi of the Patriots is willing to take post-stroke risks by playing pro football again I would never take, but that doesn't mean its a incorrect decision for him.

• Technocratic idealists ALWAYS lose control of the game.  It may feel good at first when the trains start running on time, but the technocrats are soon swept away by the thugs, and the patina of idealism is swept away, and only fascism is left.  Interestingly, the technocrats always cry "our only mistake was letting those other guys take control".  No, the mistake was accepting the right to use force on another man.  Everything after that was inevitable.

I am reminded of all this because the technocrats that built our regulatory state are starting to see the danger of what they created.  A public school system was great as long as it was teaching the right things and its indoctrinational excesses were in a leftish direction.  Now, however, we can see the panic.  The left is freaked that some red state school districts may start teaching creationism or intelligent design.  And you can hear the lament - how did we let Bush and these conservative idiots take control of the beautiful machine we built?  My answer is that you shouldn't have built the machine in the first place - it always falls into the wrong hands.  Maybe its time for me to again invite the left to reconsider school choice.

Today, via Instapundit, comes this story about the GAO audit of the decision by the FDA to not allow the plan B morning after pill to be sold over the counter.  And, knock me over with a feather, it appears that the decision was political, based on a conservative administration's opposition to abortion.  And again the technocrats on the left are freaked.  Well, what did you expect?  You applauded the Clinton FDA's politically motivated ban on breast implants as a sop to NOW and the trial lawyers.  In establishing the FDA, it was you on the left that established the principal, contradictory to the left's own stand on abortion, that the government does indeed trump the individual on decision making for their own body  (other thoughts here).  Again we hear the lament that the game was great until these conservative yahoos took over.  No, it wasn't.  It was unjust to scheme to control other people's lives, and just plain stupid to expect that the machinery of control you created would never fall into your political enemy's hands.

OK, rant over.  No one wants to hear "you asked for it", but that is indeed my answer to many of the left's laments today about conservatives taking over their treasured instruments of state control.  I hate to be a geek here, but even Star Trek figured out this whole technocrat losing control of the fascist state thing 40 years ago.

Update:  Wow, I am not that skilled with reading academix-speak, but I am pretty sure that Ed Glaeser via Margina Revolution is saying the same thing:

Soft paternalism requires a government bureaucracy that is skilled in
manipulating beliefs.  A persuasive government bureaucracy is inherently
dangerous because that apparatus can be used in contexts far away from the
initial paternalistic domain.  Political leaders have a number of goals, only
some of which relate to improving individual well-being.  Investing in the tools
of persuasion enables the government to change perceptions of many things, not
only the behavior in question.  There is great potential for abuse.

Update:  Cafe Hayek discusses how the FDA is failing even technocratic objectives and this is an amazing data-rich in-depth analysis of the FDA vs. markets in managing drug risk/reward choices:

The debate over off-label prescribing is not about perfect safety; it is about
whether unavoidable trade-offs are best made for everyone by a centralized authority
such as the FDA or whether those decisions are best made by patients and doctors
acting independently. Whoever makes a decision to try (patient), prescribe (doctor),
or approve (FDA) a drug must face the trade-off between the costs of prescribing a
potentially unsafe medicine (a type II cost) and the costs of not prescribing a drug
that could have saved a life (a type I cost)....

The FDA tends to overemphasize the cost of using a potentially unsafe medicine,
because type II costs are highly visible and result in punishment of the FDA, whereas
type I costs are invisible and do not result in punishment.

If the FDA approved a drug that killed thousands of people, that story would make
the front page of every newspaper in the nation. Congressional hearings would certainly he held, the head of the FDA would probably lose his or her job, and the agency would be reorganized. But if the FDA rejected a drug that could save thousands of people, who would complain? When a drug kills a patient, that person is identifiable, and family and friends may learn the cause of the death. In contrast, the patient who would have lived, had new drugs been available, is identifiable only in a statistical sense. Family and friends will never know whether their loved one could have survived had the FDA not delayed the introduction of a new drug. In some cases the drug that could have saved the patient's life is never created, because the costs of the FDA's testing procedures make the necessary research and development appear unprofitable...

Patients and doctors do not face the same biased incentives as the FDA and thus
tend to pay more attention to the costs of not using a drug that could save a life.

The other day in my post on Politics without Philosophy, I mentioned in passing the philosophical inconsistencies on the National Organization for Women (NOW) website.  Specifically, I referred to the premise that women should control the decision-making for their own body (a premise I accept) and noted the inconsistency of some of their positions, notably opposition to breast implants, with this position.  As usual, I got several emails on "my attack on women", which is pretty normal nowadays:  People tend to associate an attack on an organization purporting to represent a certain group with an attack on the group itself. 

Anyway, this post was just going to be an update, to provide the specific links on NOW's seemingly conflicting positions on abortion and breast implants, but in the process, I discovered another very interesting inconsistency, which I will get to in a few moments (its in bold at the bottom if you really can't wait).

In posting on the breast implant - abortion conundrum, I should have linked to this post, where I explained in more detail:

When it comes to defending abortion, women's groups are great
libertarians. They will point out that abortion is about the right to
choose and about protecting the "fundamental civil and human right of
women to make the most intimate decisions about their bodies and their
lives".  Its about not letting the government interfere with individual
decision-making or a "woman's right to privacy".  Its about assuming
women are grown-up enough to make difficult choices about their fetus
and their own health and safety.  Opponents of such choice are
"ultra-conservatives trying to deny women control over their own
bodies".  (all quotes from the NOW web site).

So, women's groups seem to be good libertarians concerned with the primacy of women's decision-making over their own body.  Except when they're not.
NOW has been feverishly campaigning to get the government to limit a
women's right to choose breast augmentation, despite the fact that the
science is overwhelmingly behind the safety of implants.  Sure, as in
any medical procedure, there are some risks, but I defy anyone to tell
me that the risks associated with breast implants are greater than the
risks associated with abortion.  Abortion is a much weightier and more
difficult decision, and, unlike breast implants, it is irreversible.
If women are mature enough to make abortion decisions, they certainly
are mature enough to weigh the risks of breast implants.  Or take the
birth control pill -- the impact to a woman's body of silicone sacks in
their boobs is far less than that of trashing their entire hormone
balance.  Sure, the pill makes sense for a lot of people and its great
that the option exists, but don't tell me that the the changes the pill
engenders in the body are OK but bags of silicone are not.

Note that if you accept the notion of a woman's right to choose for her own body, the risks of breast implants shouldn't matter.  A good government might make sure these risks are revealed, but would leave decision making on the risks vs. rewards to the individual.  For the sake of completeness, though, here is NOW's argument that breast implants are just too risky and here is the counter-argument, supported by most scientists and the medical profession, that there is nothing wrong with them.  Note, however, the NOW would not tolerate casting the abortion debate around safety or risk, arguing in that case that it is up to the woman to make these informed trade-offs.

Anyway, here is what I learned from grabbing a few of the links above.  Consistent with their position on breast implants (and their heavy funding from the tort bar) NOW also is criticizing the FDA for allowing the Vioxx painkiller on the market.

Whether it's Vioxx or Bextra or silicone implants, the rule now
is 'Buyer Beware, said [NOW President Kim] Gandy. The drug and device companies own
the FDA and it is the companies' profit potential that rules the
review and approval process - except when the profit motive is
overridden by the White House morality police, as with the
morning-after pill.

Yep, the FDA is apparently not doing a good job in limiting the number drugs or procedures women choose to put in their bodies (more on Vioxx on the NOW web site).  But this is still not the really funny part, just another illustration of how NOW only seems to apply "Its her body" to abortion, rather than any other decision.  What was really interesting was this (emphasis added):

An assisted suicide
bill (AB 654) passed the Democrat-controlled Assembly Judiciary
Committee on Tuesday, following two hours of debate. It now moves to
the full Assembly, where a vote may come in May.

Groups
officially supporting the bill include the pro-euthanasia group
Compassion & Choices; the American Civil Liberties Union, the
California Alliance for Consumer Protection, the California National Organization for Women; the Conference of Delegates of California Bar Associations; Drug Policy Alliance Network; and End-of-Life Choices.

I am OK with legal suicide as the last-ditch pain-relief strategy, though I am uncomfortable allowing doctors to help, given the inherent conflicts (maybe create a new suicide midwife profession?)  Anyway, note from this that while NOW opposes women's access to legal Vioxx, they support legal access to assisted suicide.  In case you are missing the full irony, I will restate it:  NOW supports the legality of a pain-relief strategy (assisted suicide) with a 100% chance of death but opposes the legality of a pain-relief strategy (Vioxx) with a less than 1% chance of death.

I don't really mean to pick on NOW in particular.  As I said before, nearly any organization on the right or left tends tends to espouse contradictory positions in the same manner.  NOW is just a particularly easy target since it takes positions on so many things.  Also, I must admit that they particularly piss me off some, articulating a fine libertarian point of view that women, and not the government, should control decision-making for their own body, and then abandoning this premise on nearly every non-abortion topic they address.

Anyway, you can read more on how the left really doesn't want to address the full implications of the Roe v Wade privacy right here.  If you want to understand why NOW takes the positions it does, beyond the usual we-know-better-what-is-good-for-women-than-they-do-themselves elitism, you might look at the NOW relationship to the tort bar.  NOW is usually prominently featured on the ATLA web site.

While the "she was asking for it" defense has thankfully been purged from most rape trials (at least those involving strangers), it seems to be alive and well in the civil trial world.  Last week, a jury held that the terrorists who bombed the World Trade Center in 1993 were only 32% responsible for their actions.  The real villain in this terrorist attack was ... the Port Authority, owner of the facility, who so thoughtlessly allowed themselves to get bombed.  More via Volokh and Overlawyered.  Based on joint and several liability, the PA now is on the hook for the entire $1.8 billion verdict.

By the way, the "smoking gun" in the trial was apparently a recommendation the PA received (one of hundreds and perhaps thousands of suggestions of wildly varying quality) to close the parking lot to cars to prevent car bombs.  This helps reinforce my earlier point of why litigation insanity like this actually works to make the world less safe, because such litigation provides a strong disincentive for an entity to have any internal discourse on safety, since notes from this discourse can be held against it later. 

It is always useful to think about what consistently applied policy would have satisfied the jury that the PA was not liable.  In this case, the jury's verdict was clearly "they should have closed the garage to prevent car bombings."  Now, lets apply that everywhere consistently.  This would basically mean that we close every car parking garage in the country, since they are all equally vulnerable to a car bomb.  Applying this further, wouldn't this same standard also result in closing all tall buildings to prevent airplane attack, closing all airports to prevent hijackings, and closing all government buildings to prevent bombings (well, maybe thats not so bad).  I have posted before about finding the absurdity from translating a jury's civil verdict into a consistent policy.  Here is one example:

the exact wording on the complaint against the railroad is even better than I thought:

"The
[engineer] did not stop the train in a timely manner, and failed to
yield the right of way to a pedestrian walking along the tracks in
plain view"

A freight train's topping distance is measured in miles, even with full emergency braking.

She and her attorney's further argue:

that
the railroad was negligent for failing to post signs warning 'of the
dangers of walking near train tracks and that the tracks were actively
in useLets

leave aside the obvious point
about individual responsibility, and ask what would happen if this were
the legal standard, to have such signs.  To make sure someone saw one,
you would have to have one say every 30 feet.  Since there are just over 200,000 miles of freight railroads in the North America that works out to a bit over 35,000,000 signs that need to be posted.  At $100 per sign this would cost $3.5 billion.

Here is the serious point:  Never would any legislature
pass a law that said there had to be warning signs every 30 feet on
railroads.  It would be way too costly for little benefit.  At grade
crossings today, we have signs and flashing lights and even gates and
still thousands of people a year drive in front of trains on grade
crossings.  So, if we would never require it legislatively, how have we
gotten to a point where a jury might effectively retroactively require
such signs, and assess a multi-million dollar penalty for not doing it?

I must admit that I always accepted the conventional wisdom that trick-or-treating was becoming more dangerous, with incidents of kids getting poisoned candy and the like.  According to Snopes, this is an urban legend.  In fact:

Tales of black-hearted madmen doling out poisoned Halloween candy to
unsuspecting little tykes have been around forever "” they were part
of my Halloween experience nearly forty years ago. And every year sees the same
flurry of activity in response to such rumors: radio, TV and newspapers issue
dark warnings about tampered candy and suggest taking the little ones to parties
instead of collecting goodies door-to-door. Even Ann Landers published a column
in 1995 warning us against the mad poisoner, saying, "In recent years, there
have been reports of people with twisted minds putting razor blades and poison
in taffy apples and Halloween candy."

It's a sadness that a holiday so thoroughly and greedily enjoyed by kids
is being sanitized out of existence in the name of safety. Sadder still is there
appears to be little reason for it.

Though I've yet to find evidence of
a genuine Halloween poisoning, I have uncovered a few isolated incidents
initially reported as random poisonings that, upon further investigation, turned
out to be something else.

So relax and have a happy Halloween  (and yes, I will still probably visually check my kids candy tonight just to make sure -- its too easy and its an ingrained habit now).

Apparently, the mortality rates from obesity that the media has been breathlessly lecturing us with were overestimated by at least 1500%:

But in a study released this week by the CDC
and published in the Journal of the American Medical Association ("Excess Deaths
Associated with Underweight, Overweight, and Obesity"), the public health
community has finally owned up to their massive fib by acknowledging that the
number of deaths due to obesity in the US is closer to 26,000 not 400,000 as
previously reported.

The part of the earlier study that really got people's attention was the fact that even those slightly overweight but well short of obese had a significantly increased risk of death.  Now, the CDC channels Emily Littella in saying "never mind":

for the merely overweight with BMI's from 25-30 there is no excess mortality. In
fact, being overweight was "associated with a slight reduction in mortality
relative to the normal weight category." Being overweight not only does not lead
to premature death, something that dozens of other studies from around the world
have been saying for the last 30 years, but it also carries less risk from
premature death than being "normal" weight. In other words the overweight=early death "fact" proclaimed
by the public health community is simply not true.

In fact, the study argues, the risks from being underweight are greater than overweight, something that resonates with me having known two women who died due to complications from anorexia.

Other studies will have to replicate these findings, but this study does seem to have taken a more careful approach than previous approaches.  One thing you can be sure about, is that this will not stop lawsuits against fast food companies, since overwhelming medical evidence of the safety of breast implants has not stopped litigation in that arena.  Heck, the fact that most people who are suing asbestos companies admits they are not even sick has not stopped litigation in that arena.

When it comes to defending abortion, women's groups are great libertarians. They will point out that abortion is about the right to choose and about protecting the "fundamental civil and human right of women to make the most intimate decisions about their bodies and their lives".  Its about not letting the government interfere with individual decision-making or a "woman's right to privacy".  Its about assuming women are grown-up enough to make difficult choices about their fetus and their own health and safety.  Opponents of such choice are "ultra-conservatives trying to deny women control over their own bodies".  (all quotes from the NOW web site).

So, women's groups seem to be good libertarians concerned with the primacy of women's decision-making over their own body.  Except when they're not.  NOW has been feverishly campaigning to get the government to limit a women's right to choose breast augmentation, despite the fact that the science is overwhelmingly behind the safety of implants.  Sure, as in any medical procedure, there are some risks, but I defy anyone to tell me that the risks associated with breast implants are greater than the risks associated with abortion.  Abortion is a much weightier and more difficult decision, and, unlike breast implants, it is irreversible.  If women are mature enough to make abortion decisions, they certainly are mature enough to weigh the risks of breast implants.  Or take the birth control pill -- the impact to a woman's body of silicone sacks in their boobs is far less than that of trashing their entire hormone balance.  Sure, the pill makes sense for a lot of people and its great that the option exists, but don't tell me that the the changes the pill engenders in the body are OK but bags of silicone are not.

The real issue, as pointed out early and often by Virginia Postrel, is that feminists consider breast implants as at best frivolous, and at worst a demeaning surrender to male objectification of the female's body.  They don't think women who choose these implants are making the right choice, so they, in their elite holier-than-thou wisdom, want to take the decision away from women.  Hmmm.  Freedom for me but not for thee.  More along the line of distrusting individual decision-making here.

Update:  My main point of this post was on breast implants, and comparing feminist retoric on that issue vs. their retoric on abortion.  I feel the need, though, to mention that I don't accept that abortion is necesarily a pure individual choice situation.  Individual decision-making should be trusted when individuals make choices that affect only themselves, without coersion or fraud.  The problem in the case of abortion is whether the fetus is a piece of tissue that is a part of a woman's body, or an independent life.  In the former case, its removal is subject to individual decision making, but not in the latter.  As I have written before, I think the fetus is protoplasm at 1 week and a baby at 8 months.  At some point in between we draw an arbitrary line between part-of-the-mom and independent life.

Many abortion supporters, unwilling to risk that society might draw this line earlier in the pregnancy than they might want it, take the extra step of arguing that the very determination of whether the fetus is a life or not at 2 or 5 or 7 months should be up to individual taste, and that the government should have no say in that determination.  That strikes even me as the hardcore libertarian as going too far.  Certainly in its limited role of protecting individual rights, the government has a role in determining just who is an individual with rights subject to protection.  Determining if a fetus is an individual with independent rights and at what point in the pregnancy it is treated as such are reasonable roles for government legislation.

I have written several times that one of the perverse effects of lawsuits aimed at unsafe products is that they generally punish any company that has an open, honest internal debate on safety.  However, as I wrote here, that honest internal debate is critical to selling safe products and services.

Today, Marginal Revolution links a New Yorker article that points out the same deadly paradox:

Merck would seem to have one big thing in its favor: the company voluntarily withdrew Vioxx from the market. But while Merck executives may have hoped to persuade people that they were acting responsibly, plaintiffs' attorneys have taken the withdrawal as an admission of guilt...internal company documents show that Merck employees were debating the safety of the drug for years before the recall.

From a scientific perspective, this is hardly damning. The internal debates about the drug's safety were just that"”debates, with different scientists arguing for and against the drug....While that kind of weighing of risk and benefit may be medically rational, in the legal arena it's poison. Nothing infuriates juries like finding out that companies knew about dangers and then "balanced" them away. In fact, any kind of risk-benefit analysis, honest or not, is likely to get you in trouble with juries....Viscusi has shown that people are inclined to award heftier punitive damages against a company that had performed a risk analysis before selling a product than a company that didn't bother to. Even if the company puts a very high value on each life, the fact that it has weighed costs against benefits is, in itself, reprehensible. "We're just numbers, I feel, to them" is how a juror in the G.M. case put it. "Statistics. That's something that is wrong."...

Before a jury, then, a firm is better off being ignorant than informed.

Over the last two days, Phoenix put out an order to boil tap water before drinking and not to bathe or shower.  Many restaurants closed for the two day period, and many many people went out and loaded up on expensive bottled water.

What I found interesting was that through the whole "crisis", and now after the fact, Phoenix officials continued to say that they thought the water was safe, that they had not gotten any bad test results, but that people still shouldn't use the water "as a precaution".

Given the current state of liability and torts, I probably would have done the same in their shoes, but is this really the world we want?  There are costs to shutting off water in a city of 2 million plus people.  Shouldn't those costs be justified by some real risk? 

When I was an engineer, my job was often to rule on whether some condition was "safe".  Every day I had to make decisions like "should we shut this part of the plant down, or can we keep running it safely".  Certainly we wanted to err on the side of safety, but ruling every little concern as cause for shutdown would have caused the plant to be shut down almost all the time.  In that job, I had to take responsibility and make a decision, balancing risks and costs.  People want to say that shutting the plant (or the water system) at every hint of a problem is the "responsible" thing to do -- but in fact it is just the opposite.  It is an avoidance, both of decision-making and responsibility.

Unfortunately, no one wants to make such decisions anymore.  My wife's mammogram had something on it the doctor said he was 100% sure was just an artifact of the photography, but to cover his butt he said he had to get her to go have a biopsy (painful, expensive, and time-consuming) which was of course negative.  We are loading the economy down with risk-defense costs, an invisible tax that is already hammering the medical field.

But beyond just the costs, at what point does this hair-trigger defensive posture lead to a chicken-little syndrome where no one pays attention to warnings any more?  I know that the next time we get a warning about Phoenix water, I will be much less likely to be careful, because I remember that the last time nothing was really wrong with the water.  How many people pay attention to homeland security alerts any more?  Do you even bother to read warning labels any more, on the off chance it is a useful warning and not a "this toaster should not be used as a water ski" type warning?

For this post, I will leave aside for a moment the unfairness of monetary penalties for ridiculous claims or the incredible erosion of individual responsibility that is being created by jackpot litigation.

In addition to these problems, runaway litigation is causing people and organizations everywhere to take defensive postures to protect themselves from suits, and many of these defensive tactics are generally not in the public's interest.  Here are some examples:

• College forces depressed students out of school to avoid potential liability if the student commits suicide.
• Swings are disappearing from playgrounds, subject first to liability suits and more recently to ADA suits
• Doctors spend billions on tests and drugs that are not necessary but prescribe anyway to cover their butt in lawsuits  (and here and here and here)

One area that bothers me a lot is the area of safety engineering, whether it be for cars or whatever.  I was a mechanical engineer at an oil refinery for several years.  A big part of my job was assessing if a certain condition was "safe" or "unsafe".  Very often, I was working with shades of gray - safety is never absolute.  In fact, the only real way to make a refinery 100% safe is the same way you make cars 100% safe:  you don't have any. 

The way we dealt with the gray was to have a lot of discussion.  I might observe that I was concerned with a certain situation, and my colleagues and I would discuss it.  With some additional research, we would generally reach a consensus on the best approach.  Because we usually made these trade-offs with an inherent bias to err towards safety, I can't think of a decision we made that led to a problem.  We did have several fires/explosions, and one man was killed in one of these, but each and every one was generally caused by some combination of factors we never anticipated, e.g:

there was a steam leak under the insulation of that pipe, and since the pipe was running at a lower temperature than expected, the water condensed, and it turned out the water had an unexpected contaminant such that when it came in contact with the flange bolts it caused an unusual crack propagation mode, made worse by the fact that the flange bolt material was not the kind specced because the vendor had made a mistake on delivery, and the flange eventually gave way and a fire started.

Yeah, this really happened- I include it to say that the situation is never like on the TV mini-series -- evil corporation skimps on 30 cent part knowing it created an unsafe situation.  Safety engineering means tough trade-offs, and, after a ton of work, problems usually occur in an area no one imagined.

Anyway, this is the type of thing I used to do, and doing it well relied mainly on open, honest dialog about safety problems.  Nowadays, however, my sense is that this open dialog in corporations may soon be over.  Corporations are legitimately worried that some young engineer like myself might have written a memo about a potential hazard, and that this memo will end up being exhibit A in some plaintiffs case that the company "knew about" some hazard and did nothing about it.  Think about all the cases you hear about, even the recent Vioxx case -- the center piece of every plaintiffs argument is often that the company "was warned" and is therefore truly evil, because it knew of the problem and did nothing.  The words "smoking gun memo" are practically attached to these lawsuits, but I have always asked myself - are these smoking guns that point to culpability, or are they in fact pointing to a robust safety engineering process?

So, if we have gotten to the point where having internal people asking questions and challenging the company's product and process safety makes companies more vulnerable to lawsuits rather than less, then companies are going to start clamping down on the open internal dialog about safety.  And then the world really will be a less safe place.

UPDATE

Having written this post, I had a flashback to a training video I was shown early on at Exxon.  The video was anti-trust training, and the only message I remember is "don't write it down".  The message was mainly aimed at sales people, who tend to be gung ho and competitive and say things like "lets go out there and crush the competition this week".  This is all fine and good for Joe's Auto Body, but written on an Exxon letterhead, it becomes the central exhibit of some anti-trust trial.  Thus the don't write it down advice.  Anyway, I will be very sad, but not surprised, if they are now showing this video to the engineers as well.

Overlawyered.com is on a roll lately, with a number of articles that want to make you beat your head on the wall:

• Another nail in the coffin of individual responsibility
• Small harm, big suit
• Signs of hope in Mississippi
• Lawsuits reducing auto safety
• NBA - the next asbestos?
• Failed to prevent suicide

I give up - too many good ones to link.  Just go and keep scrolling - you don't want to miss the "breastaurant" suit, do you?