Regulation and New Niches

Normally Professor Bainbridge is a reasonable man, but the idea of people writing software to play on-line poker set him off on Cheaters:

"In my book, the geeks writing these bots are showing the same piratical attitude that caused the computer industry to lead the league in financial fraud during the tech bubble. It's bad enough that the bot creators feel no shame, but the willingness of others to condone this sort of misbehavior is a sad commentary on the state of ethics and common decency."

I read his blog fairly regularly--he seems to be on the libertarian side of corporate law, applauding the recent appointment of Christopher Cox to head the SEC. [Full disclosure: while Cox is apparently capable, IMHO the investigation he headed into Chinese influence on US politics was a bait and switch con job so I've an irrational prejudice against him.]

Anyhow, someone with a good Presbyterian/Lutheran background doesn't expect anything better from people exploiting a new ecological niche, like on-line poker playing. As someone said in some number of the Federalist, if humans were angels we wouldn't need government. But humans are not angels. If we rely on shame, ethics and common decency to manage our economy, we rely on sand. You need law, or at the very least, a good counter-programmer in the arms race.

Actually, it seems like a relatively easy cheat to defeat, at least for now--every couple hands the host site displays one of those distorted passwords for the player to echo back to the site.

Centerfield: Tobacco vs. Marijuana

The Centrist Coalition has an interesting debate going on over the recent decision on medical marijuana and the proper reach of the commerce clause. Seems to me the clause was involved in the civil rights era debates over the public accommodations provisions as well as being the prop for some of the New Deal's farm programs--hence I'm content with the status quo.

One way to look at the issue is to focus on the end results, not the process. In a country with a diverse society and a democratic form of government, will justice be better served by making decisions at the national or the state levels? As American history was interpreted when I was in school, decisions at the national level were best, as shown by the filibusters of civil rights legislation, etc. Even today the Republicans have moved from attacking the nationalization of the education system to supporting it--national standards are better than local.

Liberals and libertarians have mixed feelings. Look at the range of social issues:

Prohibition: constitutionally guaranteed local option
Abortion: constitutional by SOCUS national rules
Marijuana: national rules, but lib/libs would prefer local
Gay marriage: local rules and lib/libs would prefer local

Positioning on constitutional issues depends in part on projections of how society is going to change. You could argue in the 1970's that ERA was an expression of lack of confidence in the society. Would women be in a significantly different position today if it had been adopted? I doubt it, but am open to argument. Is opposition to gay marriage going to fade like opposition to women's rights has, or is it going to remain strong like opposition to abortion?

If one takes a "principled" position on constitutional interpretation you may end up 30 years from now in an awkward position.

Networking--Good or Bad?

The NYTimes finishes its series on class with a piece on a single mother's rise to the middle class, through perserverance, marriage, and some luck. Now she is a registered nurse, mother, wife, and the star of her network. (The piece is reminiscent of Jason DeParle's recent book on welfare reform, though the most successful of his three featured women has yet to marry, she does have a stable relationship with a man.)

Angela Whitiker's Climb - New York Times: "But she has found herself alone. She is making more money than anybody she knows. And come payday, everybody needs something, and not just the kids. Relatives need gas money, friends could use help with the rent. Even her patients, on hard times themselves, have their hands out."

It's a familiar story--all the young star athletes with their homeys, the actors with their entourages (there's even a TV show now showing that). It seems that one aid to success is moving--if you can get away from the old and familiar it's easier both to form new habits needed for success and avoid drains from the demands of the old life. I'm reminded of "Trainspotting", the movie on British drug addicts in which the "hero" betrays his friends as a prerequisite to going straight. Is that one reason why black immigrants are doing better in the U.S. than the native African-Americans? There's a difference between the networks that immigrants have where they help each other up (some Koreans have savings clubs where each member contributes regularly and the total sum goes to a member for investment in a venture) and the network with the people back home. In the latter case, it's almost a tax on success. It's another type of survivor's guilt--the contrast between two lives that really aren't that different in merit means the star feels guilty and the not-star feels entitled.

Congress and the Fungus Among Us

One of the fascinating things about working in the nation's capitol was/is seeing how reality differs from the textbooks. In theory, Congress passes laws "authorizing" expenditure of money and separate yearly appropriations acts specifying the amount of money that can be spent for authorized purposes. In theory, the Constitution provides for a system of checks and balances among the three branches of government. In reality Congress is an example of the evolution of fungus. It turns out that trees depend on fungi, that each tree has an associated type of fungus--the fungus helps to extract nutrients from the soil.

I call Congress a fungus because its influence is underground and unnoticed. Take the 2006 Agriculture Appropriations Act just passed by the House. (Go to http://thomas.loc.gov and search for it.)

The bulk of the act consists of appropriations in the classic sense, but Title VII includes the fungal growths. Here are contained the specific "dos and don'ts" that pass beneath the notice of the media. These may originate as requests from a member's district or State, or they may represent a bee in someone's bonnet. I'm not 100 percent sure of how they actually get into the bill--I suspect there's little or no discussion in the committee. Each member has her or his own priorities and goes along with those of others. I think it's possible for some to raise a point of order when the bill is considered--you aren't supposed to legislate in appropriations acts--but if everyone goes along they get on through.

Some of these provisions do get scrutiny, mostly the ones that represent Congressional "pork". But those that prohibit spending are almost never mentioned.

The Role of Judicial Review--Legal Affairs Debate Club

Interesting debate here on the role of judicial review (thanks to Professor Bainbridge) between Professors Tushnet and Chemerinsky, with the latter arguing that it's not needed. According to Tushnet:
"The core of your position seems to be that if there is disagreement over the meaning of the Constitution, there is no reason to prefer having the court make the choice rather than the political process. My view, in contrast, is that society is better off having an institution largely insulated from majoritarian politics determine the meaning of the Constitution and enforce it.
"
In the argument I'm struck by the absence of a sense of history, which puts me more on Tushnet's side (pro judicial review). Over time, sober reflection will result in different positions than the push and pull of policy-making by elected politicians. And the country will often be better off. In democracies, politicians respond to the passions of the moment and act. Or flotsam rides the tidal wave up onto the beach. The passion cools, the tide ebbs, but democracy will not clean the beach of the flotsam.

Clutches and Shear Pins in the Bureaucracy--Metaphor

In days of old, good Americans drove American iron, built by Detroit, the bigger the better, and the engine was connected to the transmission through something called a "clutch" (now a "manual clutch" since almost all are automatic). A problem in learning to drive was engaging the clutch--feeding just enough gas to the engine with the shift in first gear, not second or third, so that the engine wouldn't stall. (This was a big problem for me.) The issue is meshing two mechanical systems--the internal combustion engine and the transmission and wheels--matching force and the resistance of inertia.

On the farm, our tractor had a "power take-off" (PTO) --a rotating shaft driven by the tractor engine. The mowing machine was driven by it--a sleeve slipped over the shaft, transferring the rotary motion to the mower, which had a "pittman bar" to transform the rotary motion to back and forth lateral motion, which operated the cutting bar. At some point in the transmission there was a "shear pin". If the mower jammed up, the pin would shear in two, disconnecting the mower from the tractor PTO. This safeguarded the mower--otherwise the force of the tractor could snap expensive parts of the mower. Another aspect of matching force and resistance.

I'm thinking of these as metaphors when reading commentary on Mark Felt and this Washington Post article on the new Secretary of Agriculture. The problem is matching the power and force of the political appointees with the capabilities and inertia of the bureaucracy. (Remember that "inertia" in physics, if I remember some 50 years ago, is the tendency of a body to continue as it was: if it was moving, it has inertia; if stopped, it has inertia.) If you have a mismatch, there will be problems. In the case of Johanns, he's carrying over some of Veneman's people and appointing people experienced with the issues. In the case of Porter Goss at the CIA, he appears to have brought in his own people, and his own agenda, so there was an explosion. In the case of L. Patrick Gray there was also an explosion.

So leaks may be symptoms of a mismatch of force and inertia, or may result in parts flying off, as bureaucrats are fired as in the Goss and Gray cases.

Smoking as a Marker of Political Difference

Liberals now think:

tobacco smoking is a dangerous and addictive habit foisted on unsuspecting consumers by the wiles of big corporate tobacco companies and their henchmen on Madison Avenue. Accordingly, the power of the state should be used to suppress smoking in all public areas.

pot smoking is helpful to the sick and an innocent recreation for those intelligent people who make rational decisions about how to run their own lives. Pot is grown in rural areas by people who believe in cooperating with nature and is dispensed by informal networks that are anti-capitalist. Accordingly, the power of the state should not suppress pot smoking.

Conservatives now think:

tobacco smoking is a recreation that people should be able to decide to indulge in, particularly in the case of Wall Streeters who enjoy cigars. Accordingly, the power of the state should not suppress tobacco smoking.

pot smoking is a dangerous and addictive habit that enslaves the young and damages their minds, a stepping-stone on the path to ever more dangerous addictions and more licentious behavior. Pot is grown and sold by evil people with beards, and often imported through violence-ridden conduits. Accordingly, the power of the state should suppress pot smoking.

Libertarians combine the liberals view on pot and the conservatives view on tobacco. Communitarians combine the liberals view on tobacco and the conservatives on pot.

FBI Culture and Software

The Washington Post has another article on the FBI's problems with software development:

"The 32-page report -- prepared by the House committee's Surveys and Investigations staff and obtained by The Washington Post -- indicates that the FBI passed up numerous chances to cut its losses with the doomed Virtual Case File (VCF), instead forging ahead with a system that ultimately cost taxpayers more than $100 million in wasted expenditures."

I don't see that the article adds much to previous developments, but I would segue over to retired agent I.C.Smith, whose book "Inside" I just read. He writes clearly about his career in the FBI, including counter-intelligence and ending with a stint in charge of the Little Rock office. Nothing sensational, mildly interesting, with peripheral takes on Whitewater, Chinese campaign finance, Hanssen, etc. but no new dirt. Reading between the lines, the FBI culture was hard-drinking, as one might expect of a law-enforcement, very masculine fraternity. He divides agents into "risk takers" and "wimps". It's hard for me to believe that anyone involved in requirements specification or software development would qualify as a "risk taker" in his eyes--they'd be wimps.

In that climate, it's hard to admit mistakes and failure--the temptation is to try to plow through the obstacles. That's often a counterproductive attitude to take to software, particularly if the software isn't essential to operations so the users can just not use it. (When my old agency computerized in the mid-80's, we had the field offices by the short hairs because they had to write checks through the new system, and writing checks was the raison d'etre of the whole operation.) With the FBI, you'd have to have the U.S. attorneys requiring computerized information in order to have a similar hammer to enforce use of software.

The "Mesa Effect"

Because of various problems with e-mail, I'm copying my comment on Deep Throat from
Achenblog: Daily Humor and Observations from Joel Achenbach: "As you said, history sometimes operates with the butterfly effect. It's also fascinating to see the 'mesa effect' in operation: the passage of time erodes away detail and certain people start to emerge and dominate the scene, at least as represented in popular memory and history. You can see that operating here. First there's the idea that 'All the King's Men' played up 'Deep Throat' to make a stronger narrative. Now popular commentary seems to be saying the Post brought down Nixon and Deep Throat was the source for the Post. (I see Bradlee resisted that idea in the interview on msnbc.com) The whole drama gets simplified as time goes on--Judge Sirica, the prosecutors, the Senate committee, Saturday Night Massacre, all get omitted in the retelling. (The main exception to the simplification is the multiplication of conspiracy theories by the nuts.) It's plausible that Felt had several different reasons to confirm Woodward's info and guide his research, but the soap opera requires that he be either piqued villain or idealistic hero, not an ordinary human operating with mixed motives."

Bureaucratic Axes

Professor Stephen Bainbridge quotes pieces on the Watergate/Mark Felt background and goes on to say:

"DC turf wars make the story a lot less romantic, don't they? But it also speaks to my point about anonymous sources: Might we not have evaluated Woodward and Bernstein's work with a more informed eye if we knew they were being fed stories by somebody with a bureaucratic axe to grind?"

I think his vision is a bit blurred. Almost every story relating to a bureaucracy is sharpening someone's axe. If the story is an official press release, it's on behalf of the head of the bureaucracy. If it's a leak from within the bureaucracy, the person has his or her own motives. But as a bureaucrat, it's very likely that the motive is partly or wholly bureaucratic in some sense. In Felt's case, there were several possible motives: pique at being passed over for the Director's position; concern that L. Patrick Gray was in the pocket of the White House, unlike J. Edgar; desire to torpedo any rival "black bag" shops authorized to operate domestically; "big shot-itis"--the desire to show oneself as having knowledge no one else had; general discomfort with Gray as a "new broom" (recall the problems at CIA when their new director took over) and a desire to get rid of Gray (see Edward Jay Epstein's 1974 piece, thanks to Powerline) and finally idealism. Somehow a 35 year veteran of Hoover's FBI isn't a likely idealist.

On the other hand, most people have mixed motives for many things they do. It's possible that all of the above motives had a place in Felt's mind, but without the possibility of applying an idealistic veneer he wouldn't have chosen to leak. And, one has to remember that this is a dyadic relationship--why was Woodward willing to receive the leak? Ambition, obviously. But as a young reporter he may have needed the whiff of idealism.