Question: What do you call it when the richest segment gets to determine all the rules, and they do so in a way that prevents members of the less rich from accessing the advantages available to the rich? A sham? A travesty? Un-American? Ladies and gentlemen, I give you the BCS.After Monday's barn-burning overtime takedown of Oklahoma [watch the legendary fourth-and-18 hook-and-lateral one more time], Boise State provides a slew of new reasons why a more egalitarian post-season schedule makes sense: (1) Obvious Cinderella possibilities. No matter how under-rated they may be at a certain point in time, a team from a "power" conference could never truly be a Cinderella. Who wouldn't want to watch Boise State get a chance to go toe-to-toe with Ohio State? (2) Gun-slinging play-calling. Even if Steve Spurrier would have run the hook-and-lateral on 4th and 18, he would have never called the (modified) Statue of Liberty when going for 2 with the game on the line. Outside of Spurrier's occasional chicanery, you just don't see that kind of stuff, ever, except by inspired teams with nothing to lose; (3) The chance to see a mid-major administer a crushing beatdown to Notre Dame. Enough said.This much is clear: College football is more like professional boxing than like college basketball. Many competitors, many belts, much confusion as to who is champion. For both, impartial regulation would be better for everyone *except* the people who currently run the sanctioning bodies — the WBA, the WBC, the IBF, and the BCS.
For the last three days, I served on a jury in a civil trial in San Francisco Superior Court. It was a personal injury case stemming from an auto accident on the Bay Bridge in 2002. The plaintiff sought cash for physical and mental suffering, inconvenience, loss of enjoyment of life, and about six other things. I had some idea of how totally jacked California personal injury law is. After seeing the way that this case played out, I am shocked and depressed by it.The facts. There was no question that the defendant (a round-ish kid from outside Sacramento) rear-ended the plaintiff (an Asian lady from El Cerrito). The question was: Was there enough evidence of actual harm to award some kind of money? The plaintiff's car was unharmed by the collision. She drove home immediately afterward. An expert witness argued that the collision could not have been more than a slight bump. In my opinion, the plaintiff offered no evidence to support her argument. She claimed various types of harm: 18 months of back problems, inability to have intimate relations with her husband (ouch), general family dissolution. But her tearful testimony was the only evidence of her suffering. There was no testimony or deposition from her doctor, no medical records, no police report, no testimony from her husband or kids; moreover, she continued to work immediately after the accident and admitted that she missed no work — including business trips to China and Seattle — as a result.Our task. We had a total of four questions to answer; but if we ruled "no" on any of the first three, our work was done. Case closed. The first question: Was the defendant was negligent? If we agreed he was negligent, question two: Was the plaintiff harmed? If so, question three: Was the defendant a substantial factor in the harm? Finally, if he was: How much money should be awarded for the harm?1. Was the defendant negligent? Umm, yeah. The guy rear-ended her. Hard to say he wasn't. Still, you had to feel bad for him. He was working at a pizza place at the time of the accident, and you had to know that he was fearing some kind of huge verdict. Nevertheless, his testimony was unconvincing. A "reasonably careful" person would not rear-end a car in that situation, even if he was sneezing, as he claimed. About half the jury initially wanted to say that he was not negligent, but the rest of us had a hard time ruling that he wasn't. He wasn't paying attention. A reasonably careful person would have been paying attention. After 10 minutes of discussion, we came to a decision: 12 yes, 0 no.2. Was the plaintiff harmed? This is where it got testy. I personally believed that if we said "yes" to this, we were going to have to award damages. So I argued (at length) that she wasn't harmed, and at first 7 other jurors agreed. We only needed one more to turn to our side to win — in California, you only need 9 out of 12 jurors to agree on a point to come to a decision. Unfortunately, one of the characteristics of harm was "inconvenience." The minority argued — persuasively enough, as it turned out — that the fact that she had to stop on the Bay Bridge during crazy weekend traffic was enough to say that she was harmed. Eventually, they had the required 9, including three other young guys who I thought were going to be faithful allies (they were from the Mission, Upper Haight, and Potrero Hill). Interestingly, the other two who believed that she wasn't harmed were women: one was an older Asian lady (Sunset), and another was a young woman from the Marina. Final score: 9 yes, 3 no.3. Was the defendant a substantial cause of the harm? It was really hard to say "no" to this if you said "yes" to the above question because of inconvenience. I started to get really nervous that we were going down a path where we were going to award her some money because she got bumped on the Bay Bridge, and claimed to have incurred all sorts of hardship. Again: 9 yes, 3 no.Aside: It was pretty clear that the accident was traumatic to the plaintiff; she cried throughout the trial, and her rendition of the accident made it sound pretty scary. It happened over the weekend, so the traffic was crazy, and the defendant handled himself badly. BUT, she didn't file a suit until two years later, didn't keep receipts for medical treatment, didn't have any testimony from doctors or family members. Without any of this, it seemed insane, really, to say with any certainty that she was harmed. It's not like it's hard to produce this evidence. C'mon!4. How much is the plaintiff entitled to for her mental/physical suffering? At this point, the foreman used the whiteboard to write out each element of physical and mental suffering (loss of enjoyment of life, inconvenience, etc), laying out a framework where we would agree on a value for each thing. In California, juries are given no guidelines for determining the award; we're left to our own devices.The foreman said, "I'm just going to throw out a figure. $5000." Upper Haight guy said, "$3000." Another two women chimed in with $3000. Immediately, there were four people who wanted to award money for her unsupported claims. Luckily, Potrero Hill and Mission guys were even more passionate than me about this, and they immediately articulated an argument that I hadn't expected: that inconvenience on the Bay Bridge has a monetary value of ZERO dollars. The three Asian ladies immediately agreed, as did the Marina lady.The foreman kept proposing figures — "Okay, how about $2000?" — but Potrero Hill guy interjected: "Hey, we've got 8 people who believe that she shouldn't get anything. You're in the minority. You need to come to us." Eventually, we were arguing about whether or not to award $250. Finally, a little after 4pm, the foreman cracked: "Okay, fine. Zero dollars." And justice was served: 9 $0, 3 $250.But the depressing thing was how easy it was to assign monetary damages, how much the logic of the law seemed destined to lead to it. Upper Haight guy was brainwashed by it. Even though he could never articulate a pragmatic reason why she should get any money, he kept referring to the jury instructions and saying, "I'm just following these rules. She was inconvenienced, and now we have to assign a value to that." The foreman was sympathetic — he had family members who had been in a much worse position and got no money — which he acknowledged was not a valid legal reason, but it took him an hour before he abandoned this. As the verdict was read — negligent, harmed, substantial cause of harm — the defendant looked scared, and his attorney looked depressed. Then, the big fat $0 of damages, and everything changed. The plaintiff's attorney slumped, and the plaintiff began crying again. The defendant was relieved, and the judge actually looked relieved as well. Justice was served. Barely.
Law nerds around the country are providing interesting commentary of the Roberts confirmation. SCOTUSblog provides a blow-by-blow account of the posturing and intermittent questioning of the senators alongside interesting legal commentary, but it's a blog, so you have to scroll down to the bottom and read upwards if you want to read chronologically. Balkinization, a blog that includes many quite interesting essays by Yale Law professor Jack Balkin, has an interesting discussion about why Democrats should not confirm Roberts. Balkin recently published an interesting piece in Slate about originalists and the concept of a living constitution: "Alive and Kicking: Why no one truly believes in a dead Constitution."If you're willing to sift through the details — and each memeber of the Senate Judiciary Committee tends go into excessive detail before getting to his/her question — the NYT has raw transcripts: Day 1, Day 2.
So as it turns out, Bob Woodward met Deep Throat in a White House waiting room. Of all the juke joints in all the world! Woodward was a lieutenant in the Navy and often delivered documents to the White House. Felt was there on FBI business, undoubtedly looking out for the best interests of the nation. Woodward's account is amazing. All these years, I thought Deep Throat was some kind of all-knowing genius. Turns out he was a petulant administrator who was bitter about being passed over at promotion time. One must ask: Why the *hell* did his family think that this was a good idea?Woodward offers a glimpse at the kind of thing we'll probably read once Felt publishes his own account. Too bad the cloak-and-dagger "prearrangements" sound so corny:
Take the alley. Don't use your own car. Take a taxi to several blocks from a hotel where there are cabs after midnight, get dropped off and then walk to get a second cab to Rosslyn. Don't get dropped off directly at the parking garage. Walk the last several blocks. If you are being followed, don't go down to the garage. I'll understand if you don't show. All this was like a lecture. The key was taking the necessary time — one to two hours to get there. Be patient, serene. Trust the prearrangements.
Woodward also revisits some All the President's Men territory in describing the early days of his Watergate reporting. Before Felt got involved, he and Bernstein did some elementary legwork that resulted in a somewhat hilarious revelation about the (ahem) depth of the scandal:
I was tentatively assigned to write the next day's Watergate bugging story, but I was not sure I had anything. Carl had the day off. I picked up the phone and dialed 456‑1414 — the White House — and asked for Howard Hunt. There was no answer, but the operator helpfully said he might be in the office of Charles W. Colson, Nixon's special counsel. Colson's secretary said Hunt was not there this moment but might be at a public relations firm where he worked as a writer. I called and reached Hunt and asked why his name was in the address book of two of the Watergate burglars."Good God!" Hunt shouted before slamming down the phone. I called the president of the public relations firm, Robert F. Bennett, who is now a Republican U.S. senator from Utah. "I guess it's no secret that Howard was with the CIA," Bennett said blandly.
The most enduring legacy of Watergate seems to be that political crimes are much better orchestrated nowadays. And, when stories about them break, they tend to disappear, cf. Karl Rove's smear campaign of John McCain, discussed in the Atlantic Monthly in the fall of 2004.