Baseball Crank
Covering the Front and Back Pages of the Newspaper
December 4, 2006
BLOG: Quick Links 12/4/06

*This essay on the Democrats' coming move to strip funding from missile defense programs is one of the best I have read on the subject of SDI. This is an especially good point about the Democrats' insistence that the program be shown to be 100% effective before money is spent improving or deploying it (a rather different tack than they take when dealing with, say, medical research or alternative energy sources - or global warming, for that matter, even though unlike the battle against combustible fuels money spent on missile defense is a single, transparent cost and imposes no burdens on individual liberty):

[L]ike software, most successful weapons systems are best debugged after being deployed. And some weapons systems were never tested at all before deployment.

Complex weapons systems have often been used successfully without proper testing. In 1940, Britain's new air defenses - radars, ground observers, anti-aircraft guns and squadrons of Spitfires and Hurricanes - had never been tested against even a small scale simulated attack. Yet they won the Battle of Britain. Likewise in the 1991 Gulf War the first two E-8A ground surveillance radar aircraft had only just begun a long testing process when they were shipped to Saudi Arabia. During the war they performed magnificently and now these aircraft are in high demand all over the world.

For decades, critics of advanced technology weapons have pointed to testing failures to support their drive to cancel the programs. Yet test failures are a normal part of the development process of any weapon system. Consider the M-1 tank. Its early tests were riddled with failures, yet now it is one of the most effective tanks in the world.

Yes, missile defense is expensive and unlikely to ever be 100% foolproof, and yes, we have other means of deterrence. But especially if we are unwilling or unable to act militarily to stop nations like Iran from getting nuclear weapons, the reduction in the potential threat to the U.S. and its key allies is enormous, and well worth the money. But then, it's never really been about the money but about guys like Carl Levin having an ideological fixation on stopping missile defense no matter the underlying facts. The Democrats' move will also break faith with and alienate one of our key allies, Japan. As usual, when they get on one of their left-leaning foreign policy jags, the Democrats treat the actual commitments of our allies as a worthless trifle.

*This December 2005 Iraq analysis from Steven den Beste looks prescient now. I'm still deeply alarmed by the mounting indications that Maliki is taking orders from Sadr and Sadr is taking orders from Iran. We are now locked in a battle for regional supremacy to see if the Iran-Syria-Hezbollah-Taliban-Al Qaeda axis can strangle democracy in its crib in Afghanistan, Iraq and Lebanon - a battle that looks more and more everyday like the battles we fought in Central America in the 80s and Southeast Asia in the 70s against Communism.

*Patterico catches the LA Times consistently telling only part of the story of a discrimination lawsuit against the LAFD. This is one of those stories I had seen and thought there was something missing from it - Patterico fills in the blanks, which make the whole episode sound more like a sophmoric prank than racism.

What galls me is this, from an LAT editorial:

Scathing audits have outlined the LAFD's erratic disciplinary policies, poor leadership and hostile work environment, yet those reports have failed to dislodge the frat-boy culture. Maybe a public airing of its dirty laundry will.

Now, fixing a bad disciplinary system is fine, and stamping out racism is a noble cause. But a "frat-boy culture" is the concern of the law, why? These are firemen. They run into buildings that are on fire for a living, buildings that have a nasty habit of collapsing on or under them or otherwise acting in a highly dangerous and unstable fashion. Fire departments, like military organizations and police departments, are sustained in their dangerous mission by their unique institutional cultures. People who haven't walked a mile in their boots should be very hesitant to tamper with that culture.

*Speaking of employment law, the Democrats are also poised to add homosexuals to the list of protected classes who can raise the shield of federal litigation to prevent them from being fired or passed over for promotions. Via Bashman. Now, in theory, private businesses (as opposed to, say, religious organizations) should not be able to fire people because they are gay. But anyone with even passing familiarity with the three-ring circus of employment law can tell you that these statutes do not exist in theory - they are, instead, a practical weapon reached for by the kinds of people who get fired from jobs, and usually deservedly so, or to force companies to go through all sorts of contortions in figuring out the proper demographic composition of layoffs rather than just running the best business case.

What is more, what is often an issue is whether a person is perceived as being a member of a protected class, or what the employer knew about their membership in that class. Now, it's usually not hard to figure out who is black, or a woman, or in a wheelchair, but after that things get complicated, and with sexual orientation we enter unchated ground. Do we really want to create a whole cat-and-mouse industry over employers' knowledge of their employees' sex lives? A federal gaydar jurisprudence? ("The court finds that the company's awareness that the plaintiff enjoyed men's figure skating. Summary judgment denied.") If there's one thing the Democrats are experts at enacting, it's the Law of Unintended Consequences.

Or maybe, for their backers in the plaintiffs' bar, not so unintended.

*Good RCP Blog look at Barack H. Obama. I'm split on whether, as a matter of practical politics, this really is Obama's moment to run at the top of the ticket. On the one hand, his liberal record will only grow the longer he is in the Senate, especially now with a Democratic majority, blunting the appeal of his rhetorical moderation. The usual rule is that you run when people want you to run - that's the moment. On the other hand, it seems awfully presumptuous to run after one unfinished term in the Senate, when he has manifestly not accomplished anything. My guess is that moreso than John Edwards in 2004, Obama would be well served by running for VP even if on a losing ticket.

*Speaking of finding the right moment, the GOP field seems to be attracting people whose moments would appear to have passed - like Tommy Thompson and Frank Keating, two star GOP governors from the 1990s.

*Matt Welch takes a harsh look at John McCain from his perspective as a left-leaning libertarian. I loved the subtitle.

*In the same vein, a couple of links about Rudy Giuliani here and here.

*Via Instapundit, Eugene Volokh notes a decision from the Washington Supreme Court recognizing an individual right to bear arms. This only sharpens the conflict I noted three years ago with a Ninth Circuit decision holding that California could impose tort liability on legal sales of firearms within Washington State.

*Not me, but might as well be.

*TV sictom/romantic comedy comes to the factory floor. I will be more than a little surprised if Hollywood gets this one right and is entertaining in the process.

Posted by Baseball Crank at 8:34 AM | Blog 2006-13 • | Law 2006-08 • | Politics 2006 • | Politics 2008 • | War 2006 | Comments (7) | TrackBack (0)
Comments

Are you saying that the bill to prohibit discrimination against gays is not a good idea because it might be abused by some people? You can say this about any civil rights law.

Posted by: steve at December 4, 2006 10:28 AM

Realistically, we need major changes to the way employment discrimination laws work. Until that happens the last thing we should be doing is extending their reach.

Posted by: The Crank at December 4, 2006 10:57 AM

Do you handle employment cases? I would be interested in knowing what major changes are needed. The burden of proof for employment discrimination plaintiffs is mostly common sense, and you would probably agree with the Second Circuit's pretext plus standard where a false justification for the plaintiff's termination is not always enough to win the case.

Truly frivolous cases get dismissed under Rule 12 or Rule 56 after some discovery. Better training of HR professionals and managers would eliminate the inference of discrimination if people are treated fairly and their performance deficiencies are well-documented.

The problem from my vantage point is that defendants tend to overlitigate these cases and spend too much of their clients' money in discovery and paperwork. But damages awards in employment cases are much lower than other cases, and a runaway verdict will be reduced by the trial judge.

Posted by: Steve at December 4, 2006 11:13 AM

The issue of how to fix employment law merits its own post...I don't personally do much of it. Of course, getting cases kicked on summary judgment doesn't solve the litigation expense issue, depends on the judge, and doesn't alter the skewed incentives that current law provides. Your idea that we need to tell businesses to spend more time doing paperwork to build a litigation record every time someone isn't up to the job speaks for itself as far as the distorting effects of the current system and how its effects carry far beyond the individual meritless lawsuit.

Posted by: The Crank at December 4, 2006 11:44 AM

I've had to fire people over the years; some had union protection, so the case needs to be compelling. I see the other side: a gay couple living in an apartment--they've been together for decades. They would have been married for that long had it been permitted. When one died, his partner was terrified he would have to move, since his now deceased partner had the lease in his name originally. In NY that is illegal, and I wouldn't have evicted him in any case.

The biggest problem, and no law can cover this, is what to do about the mediocre employee, especially in a small business like mine, which has few. It's a bit easier in NY, which has no right to work law (so I was told anyway). I can't imagine running a business with the type of employment laws France and Germany (and India so I was told) has.

Posted by: Daryl Rosenblatt at December 4, 2006 3:38 PM

New York is favorable to employers because it's an "at will" state, meaning the employer can fire you for any reason or no reason at all so long as it's not discriminatory. Small employers can't be sued under the federal civil rights laws, only the state civil rights laws, which offer fewer damages. It will be hard to find a lawyer to represent a mediocre employee in a wrongful discharge case, for obvious reasons, but also because the employee has no money to pay the attorney who is relying on a successful result to collect his share of the award. A weak case will weed itself out of consideration because the lawyer will not work for charity.

Posted by: steve at December 4, 2006 3:58 PM

For what it's worth, my employment law professor at Harvard (Christine Jolls) had a practitioner come lecture to the class one day. He said (and I'm quoting from memory), "Discrimination happens. But 90% of the cases of actual discrimination never make it to court. And 90% of the actual cases that are brought are not legitimate."

As I say, this is from memory; he might have said 95 or 99%.

His explanation was this: By far, most actual discrimination happens at the hiring stage -- the employer decides that he's more comfortable hiring the non-minority. But the minority goes away having no idea what really happened, not knowing who did get the job, and not having expected to have a right to the job in the first place. Result: no lawsuit.

Conversely, the vast majority of lawsuits that do arise concern firings or failures to promote. Here, discrimination no doubt still exists to some extent, but in reality, a lot of businesses aren't going to take the trouble to fire someone without a good reason. And the reason that a lot of people don't get promoted is because they didn't really deserve it. But in those situations, a lawsuit is much more likely to arise, because the person thought he had a right to the [promotion or job] and is severely disappointed to see it going to someone else.

Again, this is just the guy's theory. I'm not an employment lawyer.

Posted by: Anon at December 5, 2006 12:38 AM
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