Wednesday, April 27, 2011

Et ux.

I just learned something new. I clicked on a link to read a decision handed down by the Supreme Court today -- AT&T v. Conception -- and noted that the official caption was: "AT&T Mobility LLC v. Conception et ux."

I'd never noticed that "et ux." Latinism before. Apparently, it is short for "et uxor" and means "and wife."

Tuesday, April 26, 2011

A poll to end all polls

The next time you find yourself shocked by the ignorance/stupidity/racism/perfidy of the American people, as revealed by the results of an opinion poll, remember this one, which purports to show that most Americans are unsure whether Donald Trump is a natural-born American citizen.  You may have seen recent headlines trumpeting a poll showing that only 56% of Americans are sure that President Obama was born in America.  Well, by comparison, only 63% are sure that Trump was!

Possible conclusions:

1) These polls are worthless. All of them. They prove nothing about anything. Respondents have no incentive to answer honestly and every incentive to get off the phone ASAP.  Have you ever been chosen to take part in one of these polls? I have, several times. Each time, my number-one goal was to get back to my regularly scheduled life.

2) Americans have a healthy sense of skepticism -- they're unwilling to say they're "certain" or "sure" of much of anything.

3) Most Americans are bad at pop quizzes.

Tuesday, April 12, 2011

“When you’re behind the wheel, there’s no such thing as a small distraction.”

Says Chuck Husak, an ad man, in this New York Times article about the tolls of distracted driving.

But if there as no such thing as a small distraction, then that means there is no such thing as a big distraction either.  All distractions are equal.

Of course, everyone knows that that there in fact is such a thing as a small distraction behind the wheel.  For example:
  • My ear itches.
  • "The Long and Winding Road" comes on the radio, forcing me to change the station.
  • The sun is in my eyes.
  • Etc.
Conclusion:  all distractions are not equal.  Some are big, some are small.

The question is whether talking on a cell phone, or texting, is a big or small distraction.  Mr. Husak wants to convince us that both are big distractions by denying that there is even such a thing as a small distraction.  As my itchy ear proves, that is false.  When people use that kind of easily disprovable rhetoric, it gets my defenses up.  It puts me in contrarian mode.

I blogged about distracted driving the other day, in the context of the happy news that the traffic fatality rate reached an all-time low in 2010.  I asked whether cell phones and texting-while-driving can really be such a menace when it is getting so much safer to drive.

Now this latest article in the New York Times cites the National Safety Council as estimating that 28% of all car crashes are caused by cell phones or texting.  But, interestingly, the accident rate has already decreased by almost 35% in the cell phone era (since 1990).  (Note that we are talking about crashes here, not fatalities -- so increased seat belt use is irrelevant.)  The NSC thinks there would be an additional 28% decrease if the cell phone had never been invented.  That would mean fewer than half the crashes per mile in 2006 than occurred in 1990 (see Table 2-17 at link).  Is that credible?  Do we really believe that, except for the invention of the cell phone, it would be more than twice as safe to drive now than it was just 20 years ago?

I don't buy it. 

Here's my theory.  Driving is very boring, and people are capable of paying only so much attention to it.  Cell phones aren't the source of our distraction; they are its object.  If not for cell phones, people would be distracted by other things, or would just end up daydreaming.  In fact, maybe cell phones keep the roads safe by keeping people from daydreaming -- or by distracting them enough to keep them awake!

Saturday, April 9, 2011

David Prosser is old

So it looks like David Prosser won that contentious Supreme Court election in Wisconsin and will get to serve another 10 years on the Wisconsin Supreme Court.

Or will he?  Prosser is 68-years old, an age when most people are retiring—not signing up for another ten years of work.  No doubt Prosser will show up for work in August, when his next term starts.  But will he last the whole ten years?

Doubtful.  My guess is that he will retire in a couple years so that Republican Governor Scott Walker can replace him with another Republican -- another Republican who would then run for reelection with the nearly all-powerful mantle of incumbency.  (Though who knows—Chief Justice Abrahamson was reelected at age 75 in 2009, and there are no indications that she's considering retirement.)

This is not some devious plot.  It is par for the course.  Indeed, it's how Prosser got his seat on the Court in the first place.  An open seat in a judicial election—especially for the highest court—is a very rare event.  Usually a vacancy occurs mid-term, either because a justice gets elevated to the federal bench or because a justice retires, and the vacancy is filled by an executive appointment.  

This highlights one of the weaknesses of selecting judges by election: in practice it is usually indistinguishable from a system that selects judges by executive appointment, except that the executive-appointment systems usually have some method for ratifying the the executive's choice.  Even in states with judicial elections, most judges still ascend to the bench by appointment.  Often, as in Wisconsin, these mid-term appointments are entirely within the executive's discretion—that is, the Governor gets to appoint whomever he or she chooses, and the choice does not need to be ratified by the legislature.  Then, once benchified, it is very, very rare for a judge to be defeated in an election.  In many cases, as in Wisconsin, the judicial elections are "nonpartisan," so the only information the ballot conveys to the voter is (a) the candiate's name and (b) which of the candidates is the incumbent.  Unsurprisingly, voters tend to choose the candidate who is already a judge.  The end result is a bench that is staffed by political appointees who never even had to face a ratification hearing and who then get rubber stamped by a clueless electorate.

And when the electorate doesn't rubber-stamp the executive's selection, it's often because of issues that we'd probably prefer not to intrude upon judicial elections.  The KloppenProsser election is a good example: at best, it was a proxy battle being waged over pure politics; at worst, it was an effort to affect the outcome of a particular case (the legal challenge to the collective bargaining bill, which is sure to reach the Supreme Court).  Either way, it's beneath the ideal of what a judicial election ought to be about.

What should a judicial election be about?  In my view, it should be solely about judicial philosophy.  For example, the campaign to "unretain" the three justices who joined the Iowa Supreme Court's unanimous decision overturning the state's law banning same-sex marriage was at least focused on an issue of judicial philosophy: restraint versus activism.  You can argue the merits of the issue all day long, but at least it was an argument about judging.  Unfortunately, those are not the kind of issues being argued about in the recent Wisconsin judicial elections.

Sunday, April 3, 2011

"Madden" to teach the dangers of concussions

So reports the New York Times.

When it comes to video game depictions of sport-related head injuries, surely the all-time crown goes to NHL '94 for the Sega Genesis, with its "head bleeding":

Saturday, April 2, 2011

"Not every idea needs to be expressed and lawyers representing the public should think twice before sending emails, publishing tweets, or writing blog posts."

That's what Mr. Gillette said a few posts ago.  The more I think about this, the more I disagree.  What's the point of an unshared thought?  Just like there are no dumb questions, there oughta be no unshared thoughts. 

Now, some would say, "Mr. Torvik, you shouldn't publish four blog posts after three cocktails."  To that I would respond, "Can you please repeat the question?"

All a man needs is a big wallet

Here is one of my favorite "war stories."

It comes from my time as a city attorney.  I was prosecuting a case where a guy was picked up for having an unlicensed firearm. It was actually a fake gun -- aka, a toy. But still a crime because it didn't have an orange nose.  Or something like that.

He got busted because the cop saw him in a bus stop enclosure with a purse.  He claimed he was holding the purse for his girlfriend. (This turned out to be true.)  Cop said the guy made a move to flee after he asked about the purse, so the cop took him into custody and searched the purse. Found the (fake) gun. Lawyer time.

(I talked to the cop on the phone and he was good-natured about the whole thing.  He said once he stopped a guy just for wearing a fur coat in summer time and found contraband underneath -- sometimes you go with your gut.)

Day of trial.  The PD was going to ask for a suppression hearing, on the theory that there was no reasonable suspicion or probable cause for the stop and search.  She had a pretty good argument, obviously.  The assigning judge told me to settle the case or he'd send me to Judge Nordby -- a  super liberal judge who we all knew would grant any suppression motion (this is how justice works -- and it works strangely well.) 

The PD and I went off to the side.  I said, "Aren't you curious about whether 'man with a purse' is probable cause?"  She said, "I think I already know what the answer is."  I said, "Look, all a man needs is a big wallet."  At this point I pulled out my own giant wallet to make the point.  I waved it in her face. "Anything more than a big wallet, and the guy's probably got a gun in there."

She pretty much lost it.

We settled the case for a CWOP -- or a continuation without prosecution.  A slight victory for me, in the grand scheme of things.

Friday, April 1, 2011

Distracted driving -- or mountains out of molehills?

2010 was another record year.  I guess they're all record years in one way or another.  Sort of like how, according to my daughter: "You are my best ... my best dad."  I've got that going for me.

But 2010 was a record year in a good way:  it was safest year ever to be driving a car.  Total traffic fatalities were 32,788 -- the lowest raw number since 1949.  Per mile, there is no comparison:  in 1949 there were over 7 deaths per 100 million miles traveled; in 2010 there was just over 1.

So we've come a long way.  But I have a question:  how can we be making such improvements in road safety at the same time we are facing the growing menace of cell phone use and texting while driving?  We have all read about how talking on a cell phone -- even hands-free -- is the equivalent to driving with a BAC of .08 ("the legal limit").  And we have all sat at a stop light and watched driver after driver motor by while talking on a cell phone.  And yet ... the objective stats show that it gets safer and safer to drive.

Much safer.  Accident rates and traffic deaths are not just on a steep long-term decline -- they're on a steep short-term decline.  In 1994, the number fatalities per 100 million miles driven was 1.73.  In 2010 the number was 1.09.  By my lawyer-math, that's a 37% decline in just 17 years -- 17 years that happen to coincide with the invention and mass proliferation of cell phones.  And it's not just fatalities and injuries that are going down -- overall crashes are way down too.  According to this government publication (see Table 2-17, page 153) "crashes" per 100 million miles driven fell 28% -- from 276 in 1994 to 198 in 2006 (latest data available). In raw numbers, crashes fell from about 6.5 million in 1994 to just under 6 million in 2006, despite many more miles driven.  (This data also includes motorcycles, cyclists, and pedestrians, I think.) 

Surely cars and roads are getting safer.  But if cell phones and texting were really such a menace, I would expect that the safety numbers would just tread water.  Instead, we continue to get safer and safer on the road, even as the crisis of "distracted driving" spreads like a cancer across the land.      

I just bought an iPhone yesterday.  Literally yesterday -- that's how far behind the times I am.  I don't have a texting plan.  I actually pull over to talk on the cell phone (sometimes).  So this isn't a personal thing.  It's a contrarian thing.  I wonder if the concern over "distracted driving" isn't just hysteria.  And even if distracted driving is a problem, I wonder if it's a problem we can handle.  After all, cell phone use in a car is productive.  The very fact that we have tolerated losing tens of thousands of lives on the roadways every year for decades shows that we are willing to trade human life for increased efficiency and productivity.  The only question is how much productivity and efficiency we need to justify this loss of life.  Ultimately, even if cell phone use in cars makes driving more dangerous, maybe we can afford the risk, since driving while using them is still safer than driving has ever been before.