The Substantially Similar Weblog

We are fortunate in Massachusetts to have fairly simple paper ballot voting machines (rather than electronic touch-screen voting machines, see, e.g. Ed Felten’s comprehensive critiques of electronic voting). When I voted this morning, however, the machines were not feeding the ballots. Instead, the poll workers were piling the ballots up on top of the machines, apparently to be fed into the machines when they figured out how to get them to work. When I left (about 90 minutes after the polls opened), they had gotten to the point of triple-checking whether the machine was plugged in.

I felt a bit uneasy leaving my secret ballot in a big open pile. It was somewhat reassuring that a police officer seemed to be in charge of watching the ballots, but I still will always have a slight reservation as to whether or not my vote was actually counted.

Don’t they get to work early to test the machines? Perhaps do a few dry runs, kick the tires, etc.? Other industries seem to have figured out most of these problems a long time ago — for example, I can’t remember a single instance in my entire life of encountering a paper jam (cash or receipt) with an ATM. (I’m sure it does happen, just rarely enough that it’s never effected me). If a system is mission critical, it should be possible to get the failure rate down to something more acceptable.

Gosh, I thought our own Republican gubernatorial candidate Kerry Healey had hit rock bottom with deceptive, racist, scaremongering television ads — e.g., this one (“What kind of person defends a brutal rapist?”) and this one (“Here’s a question: have you ever heard a woman compliment a rapist?”) (commentary). Hopefully it will backfire.

But now, via the trademark blog, this in Tennessee.

Update: and now this.

The Massachusetts race for governor has turned very ugly. Even setting my personal partisanship (and professional bias) aside, I’m certain that the blame is not equally shared on both sides. Massachusetts Lawyer’s Weekly says it better than I could, and I reproduce the entire editorial here:

Deval Patrick for governor

During the 34-year history of Lawyers Weekly, the paper has never endorsed a candidate for elected office. This practice was borne out of the notion that the political, or societal, issues that dominate races typically outweigh issues that are of distinct interest to lawyers.

But the race for governor in Massachusetts in 2006 is suddenly very much about what it means to be a lawyer.

On the one hand, we have Democratic nominee Deval Patrick, whose stated policies on judicial independence and appointment of judges (among other issues) reflect a genuine understanding of the legal system.

Conversely, Republican nominee Kerry Healey has launched a chilling assault on the practice of law.

Healey is running a television ad that takes Patrick to task for his 1985 representation of a defendant accused of murdering a police officer — an ad that borders on the bizarre in its reasoning.

“While lawyers have a right to defend admitted cop killers, do we really want one as our governor?” the ad asks.

Last week Healey added an ad that references Patrick’s one-time support of convicted rapist Benjamin LaGuer.

“What kind of person defends a brutal rapist?” the ad asks.

With those misguided questions, Healey has insulted an entire profession. Here’s hoping she does not get away with it.

What is Healey’s message? That criminal-defense attorneys somehow should be associated with, or blamed for, the actions of their clients? That protecting important constitutional rights is somehow a seedy business?

Healey has resorted to the worst form of pandering, openly inviting voters to think of Patrick as someone who associates with criminals. Her finger-pointing has a flavor of McCarthyism, suggesting that anyone who has spent time in the criminal-defense arena should be identified, called out and avoided.

The lieutenant governor proclaims herself a criminal-justice candidate who is tough on crime. Yet nearly everyone associated with the criminal-justice system, be they defense attorneys, prosecutors, police officers or otherwise, understand that the Constitution guarantees the right-to-counsel, and the right to a zealous advocate. Healey no doubt understands this as well, but conveniently ignores it as she paints Patrick a villain.

Gov. Mitt Romney knows that diminishing the work of attorneys often makes for good politics. He rarely hesitates to criticize lawyers — or judges — if it suits his agenda. But even Romney has never sunk this low, to this crass sort of demagoguery. Healey has become the bully in the schoolyard, poking fun at the overweight children. Look, he’s a lawyer. He must be a second-class citizen.

Deval Patrick, meanwhile, has quietly made it known that he appreciates the key components of the legal system.

He favors giving judicial administrators more control over their budgets and pay increases for lawyers who do work for the state, including prosecutors.

Patrick says he would devote much attention to selecting judges, returning power to the Judicial Nominating Commission. And the former civil-rights attorney has suggested that he will be careful before criticizing a judge’s decision.

“Judges don’t go looking for hard decisions,” he has said.

As to the LaGuer matter, Patrick missed an opportunity with a clumsy, disjointed explanation of the matter.

Patrick could have simply stated that any efforts he made in helping LaGuer obtain a DNA test were in the pursuit of truth. As former Suffolk County District Attorney Ralph Martin so eloquently put it in an Oct. 8 Boston Globe op-ed article, “I never thought that serving the ideals of the Constitution made you soft or tough on crime. … Respecting the Constitution doesn’t make you soft or tough — it only makes you just and fair.”

One need not be defined by one’s profession, of course, and lawyers will have other important matters (i.e., education, taxes) on their minds when they go to the polls on Nov. 7.

But attorneys can rest assured that a vote for Deval Patrick guarantees an appreciation for many of the ideals that lawyers deem important — while a vote against Kerry Healey sends a message that lawyers won’t tolerate her unforgivable cheap shots.

Do we really want someone who defends accused criminals as our governor? President John Adams, author of the Constitution that Healey swore to uphold as lieutenant governor, defended the accused killers in the Boston Massacre trial. Do you think Adams would have been qualified to be our governor?

Falsiness. At some point, meta-humour became the new humour. I happen to love it.

Incidentally, when are we going to get a flash player for linux that doesn’t have a/v sync problems? It seems like flash may be winning the video format war, and it would be nice if it really worked cross platform.

Airplanes pulling anti-gay marriage banners have been circling my building much of today, apparently in an attempt to sway public (or legislative) opinion during today’s constitutional convention (liveblog here).

The banners don’t cast the organizers as the brightest bulbs. Two of the banners are opaque references to the Chief Justice of the Massachusetts Supreme Judicial Court, Margaret Marshall — the messages were “Marshall’s Courts Are A Disaster” and “Marshall Incompetent Says Judge Sosman.” Unless you are already a rabid member of the anti-Goodridge crowd, these aren’t going to mean a whole lot to you. The other one is printed too small to read, although after twelve or thirteen time circling past my window, I could make out that it said something like “let the people vote on marriage,” which at least is a little clearer on the message (if not the font). All three had a URL that was too small to read, at least from my vantage point.

I finally pieced together that the banners were referring to massnews.com (I hesitate to link to the site and boost its PageRank, but ultimately I think the contents are so poorly written and reasoned that it probably advances the cause of gay marriage more than anything). The articles on that site really make these guys look like loonies. A great example is this article. Although apparently written by an attorney, the article demonstrates near total ignorance of how legal reasoning and constitutional principles.

E.g.:

When Justice Sosman discussed who else could be applying for marriage after May if the decision is allowed to stand, she had to include the “buzz” words that Marshall and other judges and lawyers use to intimidate everyone else — even including most lawyers who know nothing about this arcane language.

The “arcane” language the article refers to are the standard terms of art in equal protection law: suspect classification, scrict scrutiny, rational basis, etc.. (See this wikipedia article). Any first year law student should be quite familiar with this sort of discourse. (See my class notes from my first year constitutional law course and search for strict scrutiny or suspect classification). “Most lawyers” know nothing about this “arcane” language?

Similarly — the following apparently forms the basis of the writer’s claim that Justice Marshall does not have the intelligence necessary to be the Chief Justice of the state’s Supreme Judicial Court:

Justice Marshall was incapable of answering Justice Sosman. She felt it necessary to insert an unusual footnote to say she was unable to understand or to answer Sosman’s erudite critique. “In any event, we fail to understand why the separate opinion [of Justice Sosman] chastises us for adopting the constitutional test (rational basis) …”

“Failing to understand” in a court opinion (or brief) does not mean “we’re just not smart enough to get it.” It is a standard idiom used to criticize another position as lacking support. It is far from unusual to make that sort of statement in a footnote. It is generally a sign that the point being criticized is so weak that it does not merit full treatment in the main text of the decision.

In any event, I’m happy to see the anti-gay marriage movement leadership so totally marginalized. In a few years, I expect we will wonder what all the fuss was about.

Those of you outside of Massachusetts (or the United States) may not have heard about our recent healthcare insurance debates. Left Center Left has some interesting entries on the lack of local political analysis and confusion about why the business community opposes the various legislative solutions where those solutions appear to be basically in their self interest.

The proposed solutions are converging on a tax on employers who do not pay for their employees’ healthcare. That tax would help pay for statewide coverage of all or most citizens, and hopefully encourage employers to provide insurance for their employees to avoid the tax. (There is strong dissent, for example from the Massachusetts Taxpayers Foundation, as to whether the tax would actually raise any money).

Critics argue that the tax will discourage employers from coming to Massachusetts. The two large employers singled out most frequently in the State for not providing healthcare benefits to their large work force are Wal-Mart and Dunkin Donuts. Is it even remotely possible that Wal-Mart and Dunkin Donuts would actually shut down (or stop opening up) stores if they have to insure their employees or pay an additional tax? Obviously increased labor costs (whether through tax or insurance) could cut into profitability—but is there any evidence at all that it would represent a “tipping point” that would cause these employers to shut down? (Note that despite Massachusetts’ reputation as “Taxachusetts,” a study last year that I can’t locate right now pointed out that the overall tax burden on Massachusetts citizens was about in the middle, compared to other states).

Even if the health insurance mandate depresses wages, it’s worth noting that it is cheaper for the employer to buy group health insurance for its employees than it is for each of those employees to buy it individually—both because of the bulk buying power and for tax reasons. It is thus not a “zero sum game” where employees wages should be depressed by the exact amount of the increased health care costs.

Finally, wouldn’t this measure actually encourage employers to come to Massachusetts who already insure their employees, since presumably the statewide insurance mandate should decrease costs to those already providing insurance as they will no longer be effectively subsidizing the uninsured who work for competitors and other employers? And aren’t those the kinds of employers we would like to attract, rather than more Dunkin Donuts and Wal-Marts? (In fact, wouldn’t fewer Dunkin Donuts lead to less heart disease, thus also cutting down our health care costs overall…?)

Interesting juxtaposition of recent news articles:

• Chinese ban on Wikipedia prevents research, users say
• The Great Chinese Experiment “China is betting its economic health on becoming a world leader in the sciences. But will it succeed?”

There has been a lot of news about the two cent U.S. postage increase that goes into effect today, but little explanation of why the increase is required. Some reports mention that the increase is needed for a $3 billion “escrow fund,” but do not explain what the escrow fund is for. In case anyone is wondering, Congress required the Postal Service to create the escrow fund to prepay retiree health benefits and fund the military portion of retirement benefits for postal workers who had served in the military. (At least according to postalwatch.org. Who knew there was a postalwatch.org?).

I realize this is fairly off topic for my blog, but I was wondering about the explanation, so maybe one or two of my readers were as well.

If you’re looking for a more topical connection, perhaps we can blame the postal increase on the War in Iraq.

Reading about California’s execution of Tookie Williams Monday night, it occurs to me that there are two categories of death penalty supporters:

1. People who don’t understand the legal system. If you’ve never sat through a criminal trial (or several), you can’t possibly understand the uncertainties in every case, including those cases that the press paints as “open and shut” (e.g, the O.J. Simpson Trial). Human fallibility permeates the process: the prosecutor, the defense attorney, the witnesses, the jury, and the judge. Sometimes it reduces to a question of whom to believe, and the legal process is not necessarily the most effective way to answer that question if your goal is to get to the truth.

   Sometimes “what happened” is actually pretty clear, but it still seems like fitting square pegs in round holes to match the facts of the particular case to the abstract categories set up by the law.

   The other thing that should be abundantly clear to anyone who has participated in or witnessed a criminal trial is that degrees of potential punishment have only a minimal impact on an individual considering a crime. For the most part, those individuals just don’t expect to get caught (or they aren’t thinking about it at all). I would be shocked if anyone could prove a crime was deterred because the death penalty was a potential punishment for the act in question, rather than, e.g., life in prison. It should be obvious that people who commit murder are generally not rational beings, weighing their options and the potential consequences. Certainly, there is no statistical correlation between increased application (or availability) of the death penalty and decreased violent crime.

2. People who use the death penalty for political advantage. These people, mostly politicians, may or may not appreciate the fundamental problems of the death penalty, but realize that most people do not understand the criminal justice system, and that taking a pro-death penalty position will communicate a message that they are doing their utmost to reduce crime and make people safer (regardless of whether or not that is actually true).

Are there any death penalty supporters who don’t fit into those two categories? Perhaps certain victims and their families, who view the death penalty as necessary to reestablish some sort of karmic balance in the world and “put the whole thing behind them”?

Via Between Lawyers, What Was the Most Important Lessons You Learned in 2005?

A few of them are a little too “clever web 2.0 meme” for my taste (e.g., “As work gets more complex, more specialized and more networked, we are seeing a World of Ends, and the End of Process.”), but several are quite insightful. This one in particular caught my attention:

15. Look carefully at the data before you jump to conclusions. The main reason for the recent decline in violent crime in America’s cities was Roe v. Wade two decades ago and the increased access to abortion that it allowed. Not law & order, not more prisons and stiffer sentences, not gun control.

I don’t know if that’s true, but I hadn’t thought of it before.

Personally, I have no pithy observations about the most important lessons of 2005.