Wednesday, May 19, 2010
Transocean's Home Run
Why does pouring oil on the sea make it clear and calm? Is it for that the winds, slipping the smooth oil, have no force, nor cause any waves?
— Plutarch, Natural Questions, IX
Every now and again lawyers and insurance companies team up to demonstrate that no matter what is going on in the world around them, they can keep their eyes on the ball. And the ball on which they gaze has the fetching name of “Limit Liability.” So favored is this mantra that one might almost think that limiting liability is what makes the world go ‘round.
If you have the misfortune to be standing on a sidewalk on an icy day waiting to cross an intersection and a car sliding on the ice bumps into you, the insurance company’s advice to the driver is to acknowledge no responsibility. Apology from driver to victim is proscribed by the company lest the pedestrian get the idea that the accident was the driver’s fault. Such defensive footwork has fertilized many a lawsuit and has now been demonstrated in connection with the ongoing spewing of oil into the Gulf of Mexico. (Although no one has yet suggested that the tragedy was the fault of residents of the Gulf Coast living on the shore of the Gulf that defense may be raised later in the proceedings.)
As this is written, a great deal is unknown about the oil pouring into the Gulf such as the cause of the explosion and because of whose negligence (if indeed the event was inspired by negligence rather than the insurance companies’ best friend “Act of God”) how much oil is being spewed into the gulf, how great the environmental damage will ultimately be, how and when the spill will be contained, etc. In a brilliant legal maneuver, however, the lawyers and the insurance companies for one of the participants, have concluded that what is needed in the extant sea of uncertainty is certainty. The certainty needed is not that wild life will be miraculously saved by extraordinary methods, but that the fortunes of insurance companies and at least one of the participants in the disaster can be saved.
In a public relations moment that outdoes the Vatican by several nautical miles (viz. the Vatican tried to turn anger against the church over sex abuse to anger against the media for reporting it), Transocean Limited, the company that owned the rig that now rests quietly on the bottom of the ocean, has gone to court to invoke the aid of the Shipowner’s Liability Act of 1851. That Act, it hopes, limits the liability of a company in Transocean’s position. It says that the owner of a vessel is not liable for more than the value of the vessel and “her freight then pending.” According to Transocean, the amount in this case is $26.8 million. How that figure was arrived at is slightly mysterious, as things legal often are. Transocean was quoted in the Associated Press as saying it expects to receive $650 million in insurance money for the loss of the rig. Apparently Transocean can value the rig at $26.5 million for purposes of limiting its liability but $650 million for purposes of collecting from its insurer.
There is a reason Transocean has gone to court. If things keep going as they are, there is no way of knowing how it will all end. Just as there is no way of measuring or preventing billions of dollars of damage to the environment or putting an immediate end to the oil flow, without prompt action by Transocean, it believes there will be an untold number of lawsuits seeking unlimited amounts of money from the company (and its fellow miscreants.) All Transocean and its lawyers are trying to do is introduce a tiny bit of certainty into what is a very uncertain situation. They would be the first to acknowledge that they wish with all their hearts that similar certainty could be inserted into the lives of the millions of other beings that are affected by their negligent conduct. That, sadly, is beyond their power or the powers of the courts. By this very prudent course of action, however, they are fulfilling their obligations to one very important group of people who deserve all the sympathy we have left after considering others affected by the disaster. Explaining its reasons for bringing the suit, Transocean said it “believes this step is necessary to protect the interests of its employees, its shareholders and the company.” Although that might cause an outsider to wonder about the company’s priorities, I’m confident that its concern for the environment and all living things affected by the disaster, is not far behind its concern for its shareholders and employees.
Wednesday, May 12, 2010
Lieberman Strikes Again
Sweep on, you fat and greasy citizens.
—Shakespeare, As You Like It
Joe Lieberman can probably find something in the latest proposal from Russia that he’ll be wanting to incorporate in the legislation he is about to introduce. In the week before Joe proposed stripping U.S. citizens of their citizenship (in order to more effectively deal with terrorists who are trying to destroy the way of life we enjoy that protects what Joe is trying to destroy), the Russian parliament took up legislation that would extend the powers the Russian Federal Security Services (F.S.B.) has over organizations, to individuals. (F.S.B. is the successor to the K.B.G.)
The day after Times Square would-be-bomber, Faisal Shahzad was arrested, Joe announced that he planned to propose legislation that any “American citizen who is found to be involved in a foreign terrorist organization, as defined by the Department of State, would be deprived of their citizenship rights.”
Under Joe’s proposal, a person would be deprived of citizenship even though nothing had been proved against the citizen. If the citizen were later found not to have been involved in the kind of activity that triggered the loss of citizenship, I am sure Joe would include a provision that would restore the person’s citizenship. Of course, during the interim, the citizen would not have been able to assert any constitutional rights available only to citizens.
Joe’s proposal would permit the former citizen to be tried before a military commission (where the conviction rate is one conviction and two acquittals so far), rather than the civilian courts (where, according to New York University’s Terrorism Trial Report Card, the government pursued more than 800 prosecutions of terrorists and has an 89% conviction rate.) In addition, depriving a person of citizenship permits prosecutors to avoid giving the suspect the Miranda warning, two words that frighten the Joe Liebermans of the world considerably more than a peremptory loss of citizenship by a suspected terrorist.
(Since the proposed legislation would deal with the hated Miranda warning, John McCain would almost certainly sign on to Joe’s legislation. Without knowing the results of the interrogation of Mr. Shahzad, John said reading him his Miranda rights was a “serious mistake.” He said: I certainly would not read this individual his Miranda rights. I would not do that.” John, who is not a lawyer, tried to clarify what he meant by saying later that the Miranda warning should only be given after the investigators have learned what the investigation is all about. By then, of course, the information may be tainted, a non-troubling fact to John.)
Here are some provisions Joe may want to add to his proposed legislation that come to us courtesy of Russia. Under existing law in Russia, the F.S.B. has the authority to impose preventive measures on organizations it considers extremist but not on individuals. A bill has been introduced in the Russian parliament that would permit officers to confront law abiding citizens who are engaged in lawful activities and give them verbal or written warnings that their activities are “unacceptable” and may constitute criminal conduct, even if they are doing nothing illegal and no charges are pending against them. The legislation introduced in the lower house of Parliament, would impose fines or 15-day jail terms on those refusing to comply with demands made by the officers. Like Joe’s U.S. proposal, this is being introduced because of the increased threat of terrorism. In a note attached to the bill the government says the new law is needed to “consolidate the establishment of special prevention measures.”
Fair Russia’s party Chairman, Gennady Gudkov, opposes the legislation. He said the K.G.B. formerly used “warnings” when “there was insufficient evidence for criminal persecution (sic).” Viktor I. Ilyukhin, a Communist deputy who serves on the Duma committee on constitutional law, believes the new law will be used to suppress all dissent. He told the newspaper Noviye Izvestiya that before the new law only prosecutors could issue warnings. “Now they spit on all that. Any citizen can be called an extremist for taking a public position, for political activity. A warning can be given to anyone who criticizes the powers that be. If you print this interview, they will announce that Ilyukhin is an extremist.”
A similar warning about the Lieberman proposal was issued by Erwin Chemerinsky, dean of the UC Irvine School of Law. In an editorial in the Los Angeles Times he observed: “The great fear is that when the government has the power to strip some people of basic rights, it cannot be easily limited. Fundamental protections of our democracy are lost, and for no gain. Responding to acts of terrorism with deprivations of civil liberties is a familiar and troubling pattern.”
Messrs. Chemerinsky and Ilyukhin got it right. Joe got it wrong. Perhaps his colleagues will figure that out and put his proposal on the Senate’s trash heap of dumb ideas, assuming there is still room.
Thursday, May 6, 2010
Evolution Revisited
Darwinian man, though well-behaved,
At best is only a monkey shaved.
— William Gilbert, Princess Ida
It is with as much embarrassment as pundits are able to muster that I am forced to acknowledge that the Texas Board of Education may now consider itself vindicated by none other than some school administrators in a town in what is one of the more enlightened (but for its choice of Senator) states in the country. It was but a few weeks ago that this writer mocked Texas for having adopted standards for its science textbooks that contradicted any notion that evolution had affected the board’s members.
Confronted by evolution and global warming the Texas board insisted that its textbooks examine “all sides of scientific evidence” which includes the notion that the earth is but 6000 years old, give or take a couple hundred. The Discovery Institute that doesn’t discover contemporary truths, trumpeted what it called a “huge victory for those who favor teaching the scientific evidence for and against evolution.” Dr. Don McLeroy, a dentist and probably a very good one, who headed the Texas Board of Education at the time of this triumph of rhyme over reason described the decision as winning “the Grand Slam and the Super Bowl.” Not content with such hyperbole he went on to say that: “Our science standards are light years ahead of any other state when it comes to challenging evolution.” The school administrators responsible for the Weston Intermediate School, though probably not sympathetic with the successes of the Texas board, have shown that they are sensitive to the feelings of those who are troubled by the thought that they have evolved from forms they find not pleasing to contemplate. Our teacher about evolutionary matters in the Weston Connecticut school district is Mark Tangarone, a teacher in the Talented and Gifted Program (TAG). .
Mr. Tangarone has been a teacher in the Weston school system for the last 17 years. His last day of teaching in the district will take place on the last day of the current school year. Mr. Tangarone is leaving because of evolution. His problems with the concept began in 2008.
In 2008 he created a program around the fact that Lincoln and Darwin were born on the same day in the same year. A part of the program dealt with Darwin’s journey to Australia and Asia and included a discussion about evolution. Mr. Tangarone submitted an outline of the program to Dr. Mark Ribbens who was then the school’s principal. Dr. Ribbens rejected the proposed program because of its discussion of evolution. In an e-mail, a medium that is an obvious result of evolution, Dr. Ribbens way gave evolution credit for being a “robust scientific theory” that nonetheless provided a philosophically unsatisfactory explanation for the diversity of life.” He went on to explain that evolution “touches on a core belief-Do we share common ancestry with other living organisms? What does it mean to be a human being. . . . I know personally that I would be challenged in leading a 10-year old through this sort of discussion while maintaining the appropriate sensitivity to a family’s religious beliefs or traditions.” Dr. Ribbens concluded by saying evolution was not age appropriate for Mr. Tangarone’s students and said “TAG topics need to be altered this year to eliminate the teaching of Darwin’s work and the theory of evolution.” Defending Dr. Ribbens, John Drummond and Carolyn Vinton, the Weston curriculum instructional leaders, said that the schools address evolution in what they call a “developmentally appropriate manner”. The lessons are taught in kindergarten and grades 3, 8 9 and 10, as the students themselves are evolving.
Mr. Tangarone appealed Dr. Ribbens’ decision to the Assistant Superintendent, Tom Scarice who rejected the appeal. On February 12, 2010, Mr. Tangarone sent a letter to the school board announcing his retirement because of the censorship of his proposed program. Jerry Belaire, the school superintendent, said that the dispute had nothing to do with teaching evolution but said the 17 year veteran teacher was a disgruntled teacher who did not like being supervised and had been disciplined for attendance issues and insubordinate conduct, charges denied by Mr. Tangarone.
Many Weston parents, having evolved more than the members of the administration, have expressed concern and the school board has vowed to examine the circumstances surrounding the resignation. Dr. Ritter, meanwhile, has apologized for his e-mail to Mr. Tangarone saying: “Some of the things I said were written in the heat of the moment and could be wrong. If so, shame on me.” To that one can only add shame on the administration that attempted to cover up a patently absurd decision by attempting to impugn the integrity of Mr. Tangarone. As the president of the school board said, speaking of Mr. Taggarone: “On a personal note, both of my children were fortunate to have Mark, and this is a real loss for our system.” That observation suggests that Weston may yet prove itself different from, and further evolved than, Texas.