Would You Rather Wednesday

Would You Rather Wednesday


I don't even really want to talk about the results of last week's WYRW. I am going to attribute the fact that my beloved Backstreet Boys did not win exclusively to Justin Timberlake and how cool he has become. In case you forgot, I love(d) the BSB so much that I actually met two of them. So I'm just going to move on and pretend you all love them as much as I do.

And now for a holiday-themed "would you rather" that I think you'll all appreciate: would you rather…


have to start every sentence that you say (or type) with the word "gobble" all day on Thanksgiving (Example: "Gobble can you please pass the orange juice? Gobble thank you.")

OR

have to space out every single bite you take of Thanksgiving dinner in 5-minute increments (Example: take a bite of turkey. Wait 5 minutes. Take a bite of stuffing. Wait 5 minutes. Take a bite of corn.)


Things to consider:
- For option 1, nobody will want to talk to you. And if you like attention and telling stories (like I do), then this will be very painful for you.
- For option 2, it will take you about 300 years to finish your dinner, and it will likely get cold after the first few bites.

Gobble, gobble!

The profession's in crisis, but law schools don't care. They're steeped in a toxic, hyper-capitalist worldview

The profession's in crisis, but law schools don't care. They're steeped in a toxic, hyper-capitalist worldview

The real reason law schools are raking in cash
The profession's in crisis, but the schools don't care. They're steeped in a toxic, hyper-capitalist worldview
Benjamin Winterhalter
Salon
Nov 24, 2013
Since at least 1985, the American Bar Associations Section on Legal Education has published annual statistics about the rates of enrollment at American law schools, the costs of attendance, and the eventual employment of law graduates. Looking at how these numbers have changed since the financial crisis of 2008, one thing is clear: Law schools are doing quite well for themselves. Tuition at private law schools has steadily increased, climbing from a mean of $34,298 in 2008 to a mean of $40,634 today – an increase that, by my calculations, outpaces inflation by about $3,000. And although enrollment has declined slightly from its all-time peak of 52,488 new students in 2010, the general trend has been unmistakably positive.But if you sought information about how law schools weathered the financial storm in the pages of the New York Times, the Wall Street Journal or the Atlantic, I would not have faulted you for coming to the conclusion that they must be undergoing a major crisis. As these publications have tirelessly (and accurately) reported, the picture for law graduates is rather bleak. Student debt is astronomical, with some law students borrowing upwards of $200,000 to finance their educations, and employment prospects are dismal, with even well-established, “white-shoe” law firms being forced to make massive cuts and layoffs.As a straight value proposition, it seems, it is no longer clear that going to law school makes any sense. So, law schools, one might reasonably expect, surely must be feeling the pressure. College students, one could not be blamed for thinking, surely must be considering other careers. But it has not been thus.Why? How, in other words, can we explain the fact that young people are still going to law school in droves? How are we to make sense of the fact that so many intelligent college graduates are, to all appearances, deciding to commit financial suicide? The accounting just does not add up.A couple of answers suggest themselves. First, there is the fact that law school is uniquely positioned to exploit the ambitions of students whose majors do not lead obviously to a particular career. Economic choices, in other words, are not made in a vacuum; we can select only among the finite alternatives that precipitate from our actual pasts. For the upper-middle-class junior at Amherst whose parents are doctors or professors or – say – lawyers, but who always found herself more interested in 19th-century French painting than in computer programming or corporate accounting, law school may be the only way out. The other choices are to move home (obviously shameful) or (gasp!) get a PhD in art history or some equally esoteric field, which – every sensible person she knows will tell her – is thoroughly useless and not very likely to get her a job. Yes, it is true – the various influences in her life will whisper – sadly in our society everyone must become a technician, but becoming a lawyer is becoming a technician with a heart. Justice, fairness, equality – certainly these are worth caring about? And dont you want to make something of yourself?Next, there is the fact that the sorts of people who want to go to law school tend to be exactly the sorts of people who think they can beat the odds. There are, in fact, many books on the market warning prospective students not to go to law school. These books bear such ominous titles as “Law School Confidential” and (more simply) “Dont Go to Law School.” They describe in gory detail the veritable intellectual, emotional and spiritual wringer into which students are about to voluntarily insert their heads. There is, for instance, the Socratic method – a mode of instruction whose sole discernible purpose is to torture students through the elaborate belaboring of obvious points. And there is, for another, the end-of-semester exam, a three-hour rite of passage that is graded anonymously, covers an entire semesters worth of material, and counts for 100% of ones grade. But for a certain kind of person – the kind who found the coddling atmosphere at his private schools stultifying, the kind who positively lusts for real competition – it is difficult to imagine a better advertisement for law school. Indeed, the tacit message of these cautionary books might be paraphrased: Dont go to law school… unless you are just the sort of exceptionally talented smart person who can succeed in a ruthless competition with other smart people.But there is another obvious question about the discrepancy – the gulf between the continuing financial success of American law schools and the grim financial realities of their graduates – that no one seems to be asking. The prevailing silence, I think, comes from an implicit recognition that to ask the question is to answer it – that to speak the words aloud is to break a very serious taboo. If we start talking about that, everyone seems to know, we will never be able to sleep at night. The monster has been shut away in the closet for good reason.That question, the one that is so obvious that even thinking about it is deeply painful, is this: Why arent law schools ashamed of themselves? Where is their sense of pity, of remorse, of human decency? After all, arent the very ideals that law schools purport to teach about – justice, fairness, equality – fundamentally and exactly opposed to this sort of naked capitalist exploitation? In the standard liberal vision of a functioning democracy, isnt the rule of law supposed to be our salvation from the savagery of the free market? Isnt the usual story of how our society has come to have meaningful civil rights, to have real restraints on abuses of government power, a story about pivotal triumphs in the legal system? Brown v. Board of Education? Loving v. Virginia? Gideon v. Wainwright? If law schools are selling an education in these values, the lamentable truth can only be that they have failed to practice what they preach.It might be tempting simply to shrug ones shoulders and say “Well, people like money.” And lawyers, it seems, are particularly guilty of this vice. The negative stereotypes about the profession – the bumbling fraudster, the ambulance chaser, the greasy-haired, sharp-suited man on TV promising you “the settlement you deserve, and fast!” – exist for a reason. Is it really any surprise that law schools, composed as they are of lawyers, are happy to dip their cup in the river of cash that seems to be flowing their way?Perhaps not. But this cynical attitude overlooks a deeper, darker truth about law school – one that, unfortunately for entering students and conveniently for law school administrators, requires attending it to fully comprehend. While most people probably have some vague sense of the peculiarities of the law classroom from cultural touchstones like ”The Paper Chase” and ”One L” (or, more recently, “Legally Blonde”), they probably assume that these references are exaggerated and outdated. Which is true enough. But what they – along with John Jay Osborn (who wrote “The Paper Chase”) and Scott Turow (who wrote “One L”) – have missed is that law schools indifference to student suffering results not from an inexplicable love of torturous methods of instruction, nor from the inevitability of natural human selfishness, but from a profound ideological commitment to a particular version of neoliberal capitalism.Over the past several decades, by far the dominant intellectual trend among legal scholars has been one called, rather uncreatively, “law and economics” (or usually just “law and econ”). Law and econ was pioneered by two economic theorists, Ronald Coase and Guido Calabresi. Their idea, essentially a distillation of Chicago School economics, is simple but powerful: The utility of legal rules should be analyzed in terms of their ability to promote economically efficient outcomes. And the question of laws efficacy as a social force is, first and foremost, one of how well its systems of rules and regulations allow the market to function.Initially only moderately influential, law and econ quickly gained traction when, in the early 1970s, an assertive law professor by the name of Richard Posner – who is now a judge for the Seventh Circuit Court of Appeals – published a book entitled “Economic Analysis of Law.” Posners book carried the fundamental law-and-econ thesis to Procrustean comprehensiveness, offering an amateur economists take on each and every aspect of the American common-law system. Posner spoke with great eloquence about the efficiencies and inefficiencies of those parts of the legal system that form the groundwork of the first-year curriculum at literally every American law school: contracts, torts and property. Posners efforts were further buoyed by the work of legal scholar and political scientist Lee Epstein, who turned the behavioral and empirical modeling techniques of economics on judicial thinking itself.Posners underlying idea – that understanding why the rules are what they are is a matter of understanding whether they promote economic efficiency – is now so deeply ingrained in the teaching at U.S. law schools that it is regarded as dogma. Law and econ, that is, is not presented as one among many possible theoretical orientations one could have toward the law, but as a set of truths to be memorized. Law professors recite chapter and verse from Posner and Epstein as though their conclusions represented objective, undeniable facts about how the world has to function if things are going to run smoothly. Rather than subjects for examination and discussion about which students are invited to take a position, the law-and-econ position about, say, contracts is presented as part of the “material” that students must ingest and eventually regurgitate. Posner has argued, for instance, that courts should choose rules for interpreting contracts by figuring out what approach maximizes financial rewards between the parties. In one of his tiresome articles, he even writes out a little “equation” for this purpose – to interpret the contract correctly, Your Honor, just use good old C = x + p(x)[y + z + e(x, y, z)]! And those professors who do not actually assign his writings will simply take his approach for granted. The implication is clear: The debate, if ever there was one, has ended, and the economists have won.If you need proof of law and econs influence, just ask any weary twenty-something lugging around a needlessly expensive torts casebook. Most of the cases in that book are followed by an arcane and confusing set of “notes,” which ask pointless rhetorical questions and propound overlong lists of citations to law review articles that no one – least of all the casebook authors – will ever read. Without fail, the questions will encourage you to wonder whether another rule might not lead to increased market efficiency. And invariably, many of the citations in those long lists will be to Posner or one of his many disciples – he is, in fact, the single most cited legal scholar of all time.It is not as though there are no well-meaning liberals – and some holdout proponents of “Critical Legal Studies,” the left-wing alternative to law and econ – at American law schools. There are plenty. But aside from the easily-memorized-and-parroted set of rules that comprise the actual law, and aside from some basic, practical skills about constructing a legal argument, what most students take from the first year of law school is that their intuitions about justice, fairness and equality are hopelessly naïve; that the relevant consideration is the smooth functioning of the market; and that the point of a life in the law is to oil the machine. Law school tells them that their beliefs about social justice are silly; their simplistic moral views untrustworthy; and their ways of talking insufficiently precise. And all of this is conveyed as though it represented some universally accepted, decidedly modern, and – indeed – scientific consensus about how we should think about legal systems. Students cannot help but perceive that, with the exceptions of a handful of reactionary holdouts and Marxist cranks, everyone seems to agree. At no point will they be let in on the secret that law and econ is merely a modeling technique; that there are other ways to conceive of laws influence and social possibilities; and that economic explanations like Posners rely on a heavily debated set of theoretical assumptions.While it is true that todays law schools are, by and large, nowhere near as bad anything in “The Paper Chase,” the rigidly hierarchical structure of law classes, where the professor is permitted endless liberties and students are expected to endure equally endless abuse, only serves to reinforce the core message: Things have to be more or less the way they are. Despite its arbitrariness, the market (like law school) picks winners and losers neutrally, and where it fails to, the goal is to reduce the amount of noise by tweaking the rules that govern it. Our socioeconomic system (like law school) is basically meritocratic – or as nearly meritocratic as possible given the constraints of the real world. And the division of economic rewards that system generates are fundamentally just – or as nearly just as possible given the unfortunate realities of life in the marketplace.The law curriculum, thus, does a double disservice: First, it obscures the workaday practice of law by cloaking it in a ridiculous shroud of technical complexity, when in fact the best and easiest way to learn the skills of practice is simply to try them yourself. And second, it obscures the nature of legal theory as a mode of intellectual inquiry, instead teaching students to uncritically accept the central premises of neoliberal economics as a somehow post-ideological social order. Students come away both unprepared for anything but apprenticeship at an established law firm, where they will come to understand what lawyers actually do, and disaffected and bored with theoretical discourse about law. As any law student knows, the “discussion” in most law classes is tedious and irrelevant – only the exam matters. Indeed, law students often get angry at their peers for evincing anything like genuine interest in a classroom conversation, since most people in the 100-person lecture hall are – quite justifiably – just wondering when it will finally end.In short, the answer to the question “Why arent law schools ashamed of themselves?” is that most of their professors have been disabused of their beliefs in justice, fairness and equality; they do not see things as their bright-eyed-and-bushy-tailed first-year students do. They have accepted, instead, the law-and-econ formulation of these values: markets, efficiency and capitalism. It is a strange and frustrating situation: The only people who might have interesting thoughts about how law can function for the betterment of society are those who do not yet know enough about law to have an informed opinion.I am not, of course, the first person to notice this terrible and distressing reality. In 1982, Harvard law professor Duncan Kennedy wrote an article entitled “Legal Education and the Reproduction of Hierarchy: A Polemic Against the System.” Kennedys piece describes, in revelatory detail, how every aspect of the law curriculum – down to the physical placement of seats in the lecture hall – is arranged to convey its conservative message about what law is and how it works. Despite the pretentions of objectivity and neutrality provided by the economists vernacular, Kennedy observes, law schools remain “intensely political places.” He so neatly summarize the entire situation today that its scary: “The trade-school mentality, the endless attention to trees at the expense of forests, the alternating grimness and chumminess of focus on the limited task at hand – all these are only part of what is going on. The other part is ideological training for willing service in the hierarchies of the corporate welfare state.” When I stumbled across these words during my own third year of law school, I found it physically impossible to stop my head from nodding in agreement. If you are young, smart and liberal, and are considering going to law school, read Kennedys piece first. It is as true today as the day it was written.There is, however, a final question: Why arent the thousands of unemployed, over-indebted and disaffected young lawyers doing anything about the situation? Why, that is, have they not gone back to their law schools to seek relief, to demand recompense, or at the very least throw rocks? There have been some attempts to sue law schools for publishing misleading employment figures, and some attempts by the Bar to rein in overeager admissions offices, but these efforts were mostly ineffectual (in the case of the lawsuits, largely because they were ill-conceived). By and large, the response among young attorneys has been one of resignation and glum acceptance of their sorry fates.Kennedys answer to my question is simple and compelling. For most students, the ideological training “takes” – like a plant in new soil. So when they find themselves enduring tough economic times, they assume that, other than grab hold of their bootstraps, there is nothing they can do. As they learned so many times in law school, the market wants what it wants, and it seems – at least at the present moment – not to want them. Since the market, the organ of social judgment, the grumbling gut of a hungry nation, has spoken, there is nothing for them to do but listen. To try, in other words, to make the best of it, all while sensing – if the plant has truly put down roots – the unavoidable conclusion of the law-and-econ doctrines: they deserve their fates.I think, though, that there is another, simpler reason that law grads arent striking back. Lashing out at law school means admitting certain truths about their own lives that are too hard to face: That many of the people they trusted to provide them with meaningful, honest instruction about the law failed them. That the purpose of the harsh methods of instruction was not teach them the rigors of being a lawyer, but to rank and sort them ever more finely. That the ranking process then fulfilled the prophecies of the free-market ideology they absorbed, as the best-performing among them were rewarded, even in tough economic times, with clerkships, prestigious summer internships and – eventually – high-paying positions at big firms. That their own reasons for going to law school were less than completely altruistic – that they did, in fact, want to make something of themselves. That they still, despite their hand-wringing about the unfairness of it all, live in circumstances of enormous wealth and privilege. To strike back, that is, is to admit all the contradictions and injustices of the very system that produced you. It means, in other words, turning against yourself. What is there to do, then, but stare blankly out the window of the downtown office over the cityscape, as the sun splatters a gorgeous blood red against the evening clouds, and wonder what to do about the injustice?

Schubert v. Genzyme Corp. Drug Manufacturers Are under No Affirmative Duty to Sell Their Drugs

Schubert v. Genzyme Corp. Drug Manufacturers Are under No Affirmative Duty to Sell Their Drugs


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We have another case in which a plaintiff claimed that a
pharmaceutical company is under a duty to supply its drug. We blogged about the other one here. These cases are interesting. They tend to illustrate how, in litigation,
you can claim almost anything. In Bartlett,
for instance, the plaintiff claimed that a company should stop selling its drug
to avoid liability. In these cases, its
the opposite. The defendant must sell its
drug to avoid liability. Its no wonder
that in all these cases the plaintiffs have lost.
In this recent case, Schubert v. Genzyme Corp., Case No. 2:12CV587DAK (D. Ut. Sept. 4, 2013), the defendant, Genzyme, manufactured a
drug called Fabrazyme, an enzyme replacement that is used by patients who have
difficulty metabolizing their lipids. Genzyme
experienced a shortage of the drug after it found a virus contamination at its
manufacturing facility. So Genzyme rationed
its supply to the market. The plaintiffs
husband received only about 70% of his ordinary dose and eventually died. Slip Op. at 2-3. Afterward, plaintiff sued and claimed that
the defendant failed to use reasonable care to ensure an adequate supply of
Fabrazyme. Unfortunate as the circumstances of this and other cases
like it may be, the court reached the only conclusion it could. Genzyme was under no affirmative duty to supply
the drug. While Utah, like many
jurisdictions, will at times impose a duty and perhaps liability upon a
defendant who has acted and brought about certain consequences (called malfeasance),
it will not do so for a mere failure to act (nonfeasance) absent some sort of
special relationship. And plaintiffs negligence
claim, at bottom, was about a failure to act, whether she claimed that Genzyme didnt
supply the drug at all or didnt supply enough:[T]he court finds no distinction
between the duty of a company that exits the market altogether and a company
that does not supply enough product to meet full market demand. In both instances, the harm is the shortage of
the medication and it is an act of nonfeasance. Genzyme should not be penalized for producing
as much of the product as it could.Slip Op. at 9-10. Plaintiff tried to work her way around this result by
arguing that Genzymes wrongdoing was not that it failed to act but, instead, that
it engaged in affirmative wrongdoing by allowing the contamination at its
manufacturing facility and then supplying the market with an insufficient
amount of Fabrazyme. To us, this argument
seems to be nothing more than a convoluted way to describe a failure to act. The court went beyond this point, however,
and addressed policy reasons why plaintiffs claim couldnt stand, particularly
with a company so heavily regulated by the FDA:[E]ven if Genzymes failure to
produce sufficient quantities of Fabrazyme was deemed to be an affirmative act
of misfeasance, the court finds that public policy considerations would weigh
heavily against finding a duty. . . . .Pharmaceutical manufacturing is
heavily regulated by federal law and there is no statutory duty placed on a
manufacturer to ensure a continued supply of any given pharmaceutical. . . . There is no federal law requiring a
manufacturer to produce amounts sufficient to meet all potential demand. In such a heavily regulated industry, if such
a duty was deemed necessary, the governing regulators would have imposed it. Moreover, it is more appropriate for such governing
regulators to create such a duty than for this court to do so. Slip Op. at 10-11.There are also fairly straight-forward public interest
reasons why requiring a drug manufacturer to meet market demand or face liability
would be counterproductive and unnecessary.
Such a rule would discourage companies from developing the drug and
entering the market in the first place for fear of facing tremendous liability
if it were to later try to exit the market.
It also would ignore the already existing market forces that give
companies incentive to meet market demand:Imposing such a duty would prevent
a manufacturer from ever ceasing production, require it to predict all potential
demand, and further require it to maintain large stockpiles to prevent any
shortages in case of production problems. Such an onerous rule is contrary to public
policy because it creates an enormous disincentive for potential providers of
pharmaceuticals from entering the market in the first place and could stifle
development of new therapies. There are
already strong incentives for pharmaceutical companies to supply drugs to all
who may need them. There is also an incentive
to maintain good relationships and a good reputation with doctors, hospitals,
and distributors by consistently meeting demand. From a business perspective, it is in the
companys best interest to meet demand in order to be profitable and maintain
customers. Despite these strong
incentives to meet supply, a variety of factors can cause a company not to meet
demand. There are technical challenges
posed by producing biologic therapies. These
cannot always be controlled despite a companys best efforts. . . . In light of the unavoidable nature of
manufacturing and supply issues, a rule requiring manufacturers to forever
supply a therapeutic or preventative treatment to everyone who is or may be
prescribed it, regardless of the cost or feasibility of doing so, would create
a significant disincentive to manufacturers that is against the public
interest. Slip Op. 11-12.Now, plaintiff didnt lose all her claims. The court gave her the opportunity, for now,
to proceed with a claim that the lower dose of Fabrazyme was more harmful than
no dose at all, as well as a claim that Genzyme failed to warn about risks
related to the lower dose. We have no
idea whether those claims are viable.
We do know, however, that the law doesnt
require drug manufacturers to supply a certain
amount of their drugs or to supply them at all. We now have a couple of cases
that say just that.

Nixon Reconsidered 4

Nixon Reconsidered 4


I have three items for my blog post today about Joan Hoff's Nixon Reconsidered.

1. On page 109, Hoff says the following about Nixon's stance on equal rights for women:

"Nixon
told me in 1983 that his family (his wife and two daughters) favored
the ERA, but he had come to believe after 1963 that the Equal Pay Act
would achieve equality for women----apparently not realizing that this
legislation could never end the pay differential between women and men
or the sex-segregated nature of the U.S. labor force. This view may
have had validity in 1969 when Nixon came into office, but he argued the
point with me as though twenty years had not passed and proved him (and
many others, including Democratic women who had supported the Equal Pay
Act) wrong. Nonetheless, he correctly asserted that effective
application of Title VII of the 1964 Civil Rights Act could serve the
same purpose for women as passage of the ERA. Nixon admitted to me,
however, that as president he had not done as much for women as he would
have liked."

This paragraph exemplifies that Hoff's intention in Nixon Reconsidered
is not to whitewash Nixon's record on domestic policies, although she
does believe that Nixon as President had a number of significant
progressive domestic policy accomplishments. Hoff is open about what
she considers to be strengths and weaknesses in Nixon's record. For
example, Hoff acknowledges that there were weaknesses in Nixon's
policies regarding women. Hoff also discusses the sexist attitudes of
Nixon and some of his staff, as well as Nixon's tepid support for the
Equal Rights Amendment as President. At the same time, Hoff notes
accomplishments that Nixon made in terms of fighting gender
discrimination, and she also appears to give Nixon the benefit of a
doubt, in some cases. On page 104, Hoff says that Nixon questioned the
value of recruiting women for government positions, as Nixon expressed
doubt that this would get him more female votes. Hoff states: "Rather
than being a totally negative comment simply rationalizing the
president's reluctance to appoint women, it could have been, suggested
the columnist Tom Wicker, a 'hard political calculation; or it
conceivably was a view somewhat ahead of its time that women generally
wanted effective measures against sex discrimination rather than the
highly visible 'token' jobs in government for a select few.'"

What
I liked about the paragraph on page 109 is that it highlighted two
aspects of Nixon. On the one hand, Nixon was making the same arguments
in 1983 about the Equal Pay Act that he had made back when he was
President, even though (according to Hoff) subsequent events had proven
him wrong. On the other hand, Nixon acknowledged to Hoff that his
record as President on equality for women was inadequate, that he
himself was not completely satisfied with his record on this issue.
Many of us would like to think that we accomplished something good, and
we try to justify our decisions; yet, since none of us is perfect, we
can also look back and reflect that we could have done more.
Self-justification and regret seem to co-exist in a lot of people!
Personally, I find it refreshing when an ex-President looks back at his
time in office and shares his regrets: what he wished he accomplished
but didn't, what he did wrong, what he could have done better, etc. It
makes the ex-President look more human, which contrasts with how
politicians continually try to spin to make themselves look flawless.

2.
On pages 149-150, Hoff talks about how Henry Kissinger did not expect
for his working relationship with Richard Nixon to last, and yet the two
managed to bond over shared characteristics:

"On the surface
Nixon and Kissinger----an American Quaker and a German-American
Jew----appear to have been the odd couple of U.S. foreign policy. Given
his long personal and professional association with the Rockefeller
family and his blunt criticisms of Nixon, Kissinger apparently did not
think he would last even six months in the new Nixon administration.
Yet when these two men came together in 1968, they actually shared many
viewpoints and had developed similar operational styles. Both relished
covert activity and liked making unilateral decisions; both distrusted
bureaucracies; both resented any attempt by Congress to interfere with
initiatives; and both agreed that the United States could impose order
and stability on the world only if the White House controlled policy by
appearing conciliatory but acting tough. While neither had headed any
complex organization, both thought 'personalized executive control' and
formal application of procedures would lead to success. Even more
coincidental, perhaps, each had a history of failure and rejection,
which made them susceptible to devising ways of protecting themselves
and their positions of power. Often their concern for protection
appeared as obsession with eavesdropping, whether wiretaps or
reconnaissance flights. They even eavesdropped on themselves: Nixon by
installing an automatic taping system in the White House, Kissinger by
having some of his meetings and all of his phone conversations taped or
transcribed from notes. In a word, instead of compensating for each
other's weaknesses and enhancing strengths, Nixon and Kissinger shared
their worst characteristics."

Hoff goes into more detail about the
relationship between Nixon and Kissinger. It was quite stormy, in
areas! Nixon thought at one time that Kissinger needed psychiatric
help, and Nixon often tried to hinder Kissinger from taking credit for
foreign policy moves. And Kissinger actually was trying to
upstage Nixon (according to Hoff), and also badmouthed Nixon to others
after the Nixon Presidency. Meanwhile, as Hoff notes, Nixon in his
memoirs was quite mellow in talking about Kissinger. Overall, from what
I have read in books about (and even by) Nixon, there were intense
personality conflicts among Nixon's staff. I doubt it's an
Administration in which I would have wanted to work, at least in the
inner-circle!

Moreover, Hoff notes that prominent Nixon aide H.R.
Haldeman thought that Nixon and Kissinger actually did compensate for
each other's weaknesses: that Nixon did well in crisis but poorly when
things were going well, whereas Kissinger tended to stress out in
crises, while handling the good times rather adeptly rather than
botching things up.

Whatever their conflicts, Nixon and Kissinger
did have a long-standing relationship in the area of foreign policy,
particularly during Nixon's Presidency. I recall Stephen Ambrose
telling the story in his biography of Nixon of when Indian Prime
Minister Indira Gandhi visited Nixon and Kissinger during a conflict
between India and Pakistan, and she noted that Nixon was continually
saying, "Isn't that right, Henry?"

I like stories in which people
whom one would not expect to get along actually do end up forming a
fairly successful relationship----whether that be a working or a
personal relationship.

3. On pages 163-164, Hoff talks about
Nixon's Secretary of Defense, Mel Laird, who had a reputation as a hawk
during his time in the 1960's as a Congressman, but who as Secretary of
Defense was much more moderate. As Secretary of Defense, Hoff says,
Laird pushed for the end of the draft, the replacement of American
troops in Vietnam with South Vietnamese troops (Vietnamization), and the
withdrawal of American troops "faster than the Pentagon thought the
South Vietnamese forced could be trained to replace them..." Laird also
questioned extending the war into Laos and Cambodia. Hoff says that,
"unlike Nixon and Kissinger, Laird was more interested in ending the war in Vietnam than in winning it." All this, "Despite cartoons depicting Laird's bald head in the shape of a missile, bomb, or bullet..."

In
addition to liking opposites-attract stories, I also enjoy stories in
which a person acts differently than people perceive him. I think of
the movie, Separate But Equal, which was about a companion case to the Brown vs. the Board of Education
Supreme Court decision banning racial segregation in public schools.
In that movie, the side that is challenging segregation is afraid when
Earl Warren becomes the Chief Justice of the Supreme Court, for it
learns that Warren as California Attorney General was a major force
behind putting Japanese-Americans into internment camps during World War
II. But Warren surprised the anti-segregation side. Not only did
Warren come to support desegregation, but he also attempted to persuade
the other justices to support it so that the court could make a firm
statement.

The way that the movie depicts the situation, Warren's
eyes were opened to the realities of racial discrimination after he had
become Chief Justice, and he saw that his African-American driver was
sleeping in his car one night because no hotel or motel would accept
him. Maybe this is true, and maybe it is not. Still, Warren probably
did surprise people when he fought for desegregation.

Why Laird
changed his mind, I have no idea. Perhaps he learned more. Maybe he
just got to the point where he wanted the war to end, and he didn't
believe that hawkish measures were working. I've read Republicans who
make fun of how the liberal establishment says that Republican
politicians who end up supporting liberal measures have demonstrated
"growth" since their time in office. Personally, I think it's great
when people change with new information and exposure to real
life----whether that change be from left to right, or from right to
left, or from one of these extremes towards the middle. All sorts of
people can move from shallow positions to positions of depth.

Coming
back to the issue of regrets, I'd like to quote what Earl Warren said
in his 1977 memoirs about his support for Japanese internment camps
during World War II (see here):
I "since deeply regretted the removal order and my own testimony
advocating it, because it was not in keeping with our American concept
of freedom and the rights of citizens...Whenever I thought of the
innocent little children who were torn from home, school friends, and
congenial surroundings, I was conscience-stricken...[i]t was wrong to
react so impulsively, without positive evidence of disloyalty..."

Late Autumn Foliage

Late Autumn Foliage


I thought I would enjoy a walk around the gardens this morning. The talk among the weather watchers in the Pacific Northwest, is that a cold, arctic air mass, will move down late this next weekend and hang around the following week. This could bring extremely cold temps and lowland snow to our region. I thought I should snap up some pictures to enjoy the moment before my plants 'hardiness' gets a true test.


Dwarf Spanish Fir. The tiny pine cones are so delicate.


Calicarpa dichotoma 'Beautyberry'
Can you find the rotten 'Demon' cat? He thinks he is cleverly hiding. He has no idea how massive he is.



I believe he was trying to eat me. Again.

It felt good to see the leaves covering the flower beds. It looked as though the beds had a nice, warm blanket on top of them.


Autumn Fern (Dryopteris erythrosora)


Viola's with a backdrop of Panicum virgatum 'Rostrahlbusch'


Cape Fuchsia 'Passionate' The dark leaves offer such a nice color contrast to the greens and browns in the flower bed.


Pennisetum Spathiolatum


Delphinium


Cryptomeria japonica 'Little Diamond'As I walked around the gardens with the cats, winding themselves around my legs, trying to kill me; I was struck by how beautiful the gardens were in a quiet kind of way. Most of my ferns are still holding their foliage and while many a blooming plant has retreated, their seed heads offer interesting texture and food for the birds.

And speaking of birds, don't forget our feathered friends during this cold snap. I have a troop of Anna humming birds still hanging around the feeder as well as many winter birds enjoying the suet feeder. The kitties have bells to offer warning to the birds, not that they are out and about much....I mean, really, it's cold people.

Wishing all of my US blogging friends a 'Happy Thanksgiving'.
Cheers, Jenni

GCB-reported its maiden loss!

GCB-reported its maiden loss!



Results Update

For QE30/9/2013, GCB -formerly, Guanchg- reported a net loss of RM11.8 million on a revenue of RM328 million. This is mainly due to "higher net loss on foreign exchange and higher net fair value loss on commodity future contracts for current quarter ended 30 September 2013". In additions, "inventories write down, attributable largely to lower in net realization value of cocoa powder and cocoa cake also contributed to loss before tax for the current quarter". My take on the loss incurred:

1) "higher net loss on foreign exchange"- This probably came about because GCB sold their USD sale proceed forward and lost out due to a strengthening USD
2) "higher net fair value loss on commodity future contracts"- This probably due to GCB had long-term contracts to purchase cocoa beans at higher price than the prevailing price. If you look at Chart 2, you will see that cocoa futures have been rising since March this year and GCB should be benefiting from this rise if they had locked the price in early 2013. 3) "inventories write down, attributable largely to lower in net realization value of cocoa powder and cocoa cake"- This is probably due to GCB producing more cocoa butter (to meet demand by chocolate makers heading into the year end) but the other products- cocoa powder and cocoa cake- were getting lower prices due to excess supply. In addition, GCB's existing inventory of cocoa powder and cocoa cake that was produced at higher cost earlier were marked down to reflect the prevailing lower net realization value.

This quarterly loss confirmed my earlier thought that GCB's past out-performance was due to fortuitous timing in the forex market and buying of cocoa beans (here). That's not to take away the great job done by GCB's management in the past few years which saw the company enjoying a period of rapid growth. We can only hope that GCB will bound back from this setback and enter another period of exciting growth accompanied by gang-busting results.



Table: GCB's last 8 quarterly results



Chart 1: GCB's last 36 quarterly results




Chart 2: Cocoa futures as at Nov 25, 2013 (Source: futures.tradingcharts.com)

Valuation

GCB (closed at RM1.51 yesterday) is now trading at a PE of 19.4 times
(based on last 4 quarters' EPS of 7.75 sen). At this PE, GCB is overvalued.

Technical Outlook

GCB is now in a sideways move with support at the horizontal line RM1.50. Its next support is at the horizontal line RM1.20.



Chart 3: GCB's weekly chart as at Nov 25, 2013 (Source: quickcharts)

Conclusion

Based on poor financial performance high valuation, GCB is rated a SELL.

Note:
In
addition to the disclaimer in the preamble to my blog, I hereby confirm
that I do not have any relevant interest in, or any interest in
the acquisition or disposal of, GCB.

Cruise Ship Staff

Cruise Ship Staff


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Are mental illnesses real (Part Three)

Are mental illnesses real (Part Three)

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(Part One, Part Two)

This is the third part in a series on the philosophy of mental illness. The series is looking at the long-standing debate about the legitimacy of mental illness. It covers some of the classic contributions to the literature. For example, in part one, we considered Thomas Szaszs infamous arguments for the “myth” of mental illness. And in part two, we considered Robert Kendells attempted defence of the legitimacy of mental illness, as well as Bill Fulfords account of the logical geography of illness concepts.

In this, the final, part we will do two further things. First, we will step back from the particular arguments for and against the legitimacy of mental illness, and focus on Neil Pickerings meta-philosophical diagnosis of the problems inherent in the debate. Then, having sharpened our appreciation for the meta-philosophical issues, we will consider what is probably the most recent and widely-discussed attempt to define “illness” in such a way that it (properly) includes mental illnesses: Jerome Wakefields Harmful Dysfunction analysis.

As mentioned in previous entries, this series is based heavily on chapter one of Tim Thorntons book Essential Philosophy of Psychiatry, though, as ever, I will feel free to critically expand upon what it says.

1. The Likeness Argument and its Flaws…
Disagreement about the legitimacy of mental illness persists despite decades of debate. This is not too surprising: philosophical disagreements have a remarkable knack for persistence. Nevertheless, every now and then, philosophers who are fed up with the endless argumentative back-and-forth associated with these disagreements, like to take a step back and offer a diagnosis. Thats exactly what Neil Pickering did with the mental illness debate in his 2006 book The Metaphor of Mental Illness.

According to Pickering, the major problem with the current debate is that it relies on something he calls the Likeness Argument. The Likeness Argument tries to determine the legitimacy of mental illness by comparing it to a paradigm case. In other words, it takes a condition or illness that everyone agrees is an illness, and tries to argue that mental illnesses are sufficiently like (or not like) that paradigm case. This is usually done by abstracting the essential properties of that paradigm case and applying them to mental illnesses. In the case of Szasz and Kendell the paradigm illness is either some specific physical illness (e.g. hypertension) or the general class of physical illnesses.

The following is a more formalised version of the Likeness Argument template:

(1) A paradigm case of illness properly-so-called has properties P1….Pn
(2) Mental illnesses share a sufficient number of these properties.
(3) Therefore, probably, mental illnesses are illnesses properly-so-called.

The Likeness Argument is, in effect, an argument from analogy and so suffers from the associated logical shortcomings. It is not formally valid: the conclusion does not really follow the premises. The similarity between the two cases gives us, at best, a probabilistic, defeasible reason for endorsing the conclusion.

Typically, disputants in the mental illness debate will argue about the premises of the likeness argument. Thus, theyll offer different accounts of the essential properties of the paradigm case, and different accounts of the similarities between the paradigm case and the case of mental illness. Pickerings goal is to show how hidden assumptions undermine these arguments.

In particular, his goal is to highlight two hidden assumptions that make the Likeness Argument work. They are:
Hidden Assumption 1: That there are necessary and sufficient conditions that determine category membership for things like illnesses.Hidden Assumption 2: That a putative mental illness such as schizophrenia is describable in terms of its properties without that description presupposing which category it belongs to.

The first hidden assumption plagues many philosophical debates. Consequently, it is difficult to say whether or not it is truly problematic, without engaging in a much wider debate. Philosophical analysis of concepts and phenomena often proceeds on the assumption that there are objective conditions that determine why X is one thing and not another. To some extent, this is just good old-fashioned commonsense: surely it is true that the cup upon my table is distinct from the saucer? And surely this distinction is determined by the properties they both exemplify? The concern is that the game of philosophical analysis, whereby ever-finer distinctions between concepts and categories are drawn, ends up with arbitrary and stipulative conditions for category membership. If it does, then the claim that mental illnesses, or indeed illnesses more generally, have some objective essence that determines whether or not they belong to the category of illnesses properly-so-called might be undermined. But this is a big debate, not one that can be settled here.

The second assumption is rather more interesting, and it is the one that Pickering thinks is particularly problematic in the mental illness debate. As he sees it, people like Szasz and Kendell work from the assumption that category membership is determined from the bottom up. In other words, that first you identify the properties associated with a particular condition (e.g. hypertension or schizophrenia) and then you work out which category it belongs to (illness/not an illness). Pickering argues that the relationship between property description and category membership is more holistic than that. Oftentimes, assumptions about category membership determine how we describe a phenomenon. The process is more top-down than we may realise.

He illustrates this by using the example of addiction. Lets say there are two categories to which this phenomenon could belong: (i) it could be a blameworthy moral defect; or (ii) it could be a blameless mental illness. Pickerings point is that hidden assumptions about which category it belongs to will affect how we describe it. So, if we think it is a moral defect we will describe an addicts behaviour in terms of “choice”, “autonomy”, “vice”, “weakness of the will” and so on. On the other hand, if we think it is an illness, we will describe their behaviour in terms of “chemical dependency”, “helplessness”, “addiction” and so forth. I have tried to illustrate this in the diagram below.




What Pickering is pointing out here is the theory-ladenness of observation, something which has long been recognised in the philosophy of science. The point is that data doesnt simply present itself to us in an objective, category-neutral fashion. We need to make theoretical assumptions before we can even make sense of the data and distinguish it from the background noise.

I have no doubt that observations are theory-laden. But is this a major problem? Does it undermine any attempt to argue rationally about the status of mental illness? Im not so sure. Its true that we have to start from somewhere — i.e. with some set of theoretical assumptions — but that doesnt mean we are forever wedded to those assumptions. I could start out believing that addiction was a moral defect, but gradually adjust my view — through a process of reflective equilibrium — to the belief that it is a mental illness. Im not sure I would be irrational in so doing: my readjustment could be driven by sound reasoning and argumentation. Furthermore, as Thornton points out, we can accept the epistemic-dependence between theory and description, without thereby needing to accept their ontological-dependence. In other words, we can accept that we would not be able to know the properties of a particular condition without also knowing its overall classification; but that doesnt mean that we must accept that our judgments about those properties are constituted by the overall classification.


2. Jerome Wakefields Harmful Dysfunction Analysis
With that meta-philosophical point out of the way, we can proceed to consider one final attempt to define illnesses in a way that mental illnesses are (properly) included within their scope. The attempt comes from Jerome Wakefield, and it is probably the most widely-debated and discussed analysis of illness in recent times. (Terminological note: Wakefield uses the term “disorder” instead of illness, as he thinks it is the broader term. Im going to stick with “illness” since I have used it throughout this series. This should not lead to confusion. For the purposes of this discussion, the terms “illness”, “disease” and “disorder” can all be taken to refer to the same kind of thing: a condition that is a legitimate subject of medical scrutiny and treatment).

Wakefield thinks that the major challenge for psychiatry is to show why the so-called illnesses (or disorders) are different from other mental traits. After all, the challenge raised by the likes of Szasz is that all mental illnesses are really just socially deviant or disvalued forms of thought and behaviour, and therefore shouldnt be subject to excessive control or treatment from the psychiatric profession. This is probably the main weapon with which the anti-psychiatrists attack the legitimacy of psychiatry. Wakefield agrees that there is a problem here. As he sees it, the legitimacy of psychiatry depends on having a definition of mental illness that distinguishes true mental illnesses (like the various forms of psychosis and depression) from other socially undesirable traits (e.g. illiteracy, aggression, infidelity, lack of skill etc.).

He thinks this can be done by first accepting that all definitions of illness include a value judgment that is linked to social norms, and then by adding to that a value-free element that distinguishes illness from other forms of norm-violation. This is exactly what the Harmful Dysfunction analysis tries to do. It says that any illness properly-so-called will include the following two elements:
Harm Element: The condition will be harmful.Dysfunction Element: The condition will involve the divergence of a biological/mental mechanism from its natural function.

The harm element incorporates the value judgment, with harm being measured in relation to social standards (e.g. harm = setback to interests). So things like illiteracy, infidelity, aggression, addiction, psychosis, depression, anxiety and so forth will all match this criterion. What distinguishes the latter from the former, however, is the dysfunction element.

Theres quite a bit of philosophy/science underlying the dysfunction element. According to Wakefield, dysfunction is determined in relation to the selected-for function(s) of a particular biological or mental mechanism. In this manner, his account of illness is explicitly evolutionary in nature. Natural function is equivalent to selected-for function. To give an example, the heart is a biological mechanism that performs certain functions. Its selected-for function is the function that explains why it has continued to exist over evolutionary time. Wakefield suggests that the selected-for function of a heart is its ability to pump blood around the body. It was this function that increased the inclusive fitness of the organisms that had a heart. (To be clear: a single organ or mechanism can have many selected-for functions). Heart disease then is any harmful condition that prevents the heart from fulfilling its selected-for function.

Wakefield argues that the harmful dysfunction analysis can apply just as well to mental illnesses. The brain/mind is made up of a variety of mental mechanisms: perceptual, cognitive and emotional. These mechanisms perform many different functions, some of which were selected-for over evolutionary time. A mental illness is simply any harmful condition that prevents a mental mechanism from fulfilling its selected-for function(s). For example, schizophrenia is a mental illness because it is harmful and because it prevents our visual, auditory and cognitive mechanisms from performing their selected-for functions.

This gives us Wakefields paradigm argument for the legitimacy of mental illness:

(4) A condition X is an illness properly-so-called if it is (a) harmful and (b) involves the divergence of a biological/mental mechanism from its natural (read: selected-for) function(s).
(5) At least some mental illnesses fulfill both of these criteria.
(6) Therefore, at least some mental illnesses are illnesses properly-so-called.

Wakefields analysis is certainly interesting, and to be fair to the guy, theres a lot more detail to it than I have been able to cover in this discussion. Nevertheless, there are some obvious problems that are worth mentioning here.

The first is that Wakefields attempt to have a value-free element in his definition of disease is doubtful. Some would argue that the concept of a dysfunction, even if it is related to Darwinian natural selection, involves a value judgment of some kind. The idea is that function depends on the purpose or telos of the organism, and that the purpose or telos of an organism is a value-laden thing. Im not too enamoured with this critique. I think evolutionary purposes might be a good deal more objective than other kinds of purpose; and I also think the whole desire to have a value-free element in the definition of illness is misguided. I dont think the legitimacy of psychiatry depends on this: what matters is whether it is guided by the right value judgments.

A bigger problem with Wakefields definition is that, in many cases, it can be difficult to identify the selected-for functions of a particular mechanism. Take language as an example. Has the brain evolved, in part, to allow us to learn and speak a language? Was that one of the selected-for functions of the brain? Some people argue yes (e.g. Pinker), others argue that language acquisition is a by-product of other selected-for functions. The same is true for many other mental mechanisms. Some are viewed as clear adaptations, others as by-products, with lots of arguments about these classifications. The evidence is complex and nuanced, and yet if Wakefields definition were to be followed it would make a big difference whether something was classified as an adaptation or a by-product. If its the former, then an inability to perform that function might lead to a diagnosis of illness; it its the latter, it would not.

Tied to this is the fact that some people — indeed, some psychiatrists — argue that certain classic mental illnesses like depression are in fact evolutionary adaptations. If they are right (and they may well not be), then depression shouldnt be classified as a mental illness. Of course, this isnt necessarily a problem: it could be that depression doesnt deserve to classified as a mental illness. Furthermore, Wakefield is clearthat certain psychiatric diagnoses are insufficiently attentive to the question of natural function at the moment. This is a basis on which the diagnostic criteria can be revised. Still, if one his goals is to defend the legitimacy of mental illness, then it is possible that his definition will incentivise psychiatrists to ignore or call a halt to any attempt to explain mental illness in terms of evolutionary adaptation.

Finally, there is the concern that the definition is under-inclusive. Its possible that functions for which we were biologically selected are harmful in modern environments (e.g. having a sweet tooth). Does this mean that their harmful manifestations should not be classified as illnesses or disorders?

In the end, I feel like the classification of illness is largely (and perhaps appropriately) driven by pragmatic, treatment-oriented factors: if it can be treated by medical means, then it is a illness; if not, it's not. Of course, I recognise that even this definition assumes that the concept of “medical treatment” is more stable than it really is.