Class Attendance

A recent article on law school attendance policies reminded me of an anecdote from law school.

At our graduation reception, one of my professors approched and congratulated one of my classmates, addressing her by name. She remarked that, as she had taken only one class from him in a very large lecture hall during a prior semester, she was curious about why he remembered her.

"Well," he explained, "For the first few weeks of the class you sat in the front row, and asked questions every day. Then one day you approached me and asked if class attendance would affect your grade. I said 'no', and I never saw you again."

Using a Sledgehammer....

While I fully respect the legal and privacy rights of Chelsea Clinton, perhaps this woudn't be a story if the letter requesting that the picture be taken down had come from somebody other than a lawyer, and had been phrased as a firm request (implying stronger action if the request were denied) as opposed to an ultimatim.

Defective Products "Made In China"

A number of years ago, the Michigan legislature passed an exceptionally pro-industry "reform" of the state's products liability laws. A significant aspect of the new law was that it severely limited the circumstances in which a distributor or seller (other than the manufacturer) could be liable for selling a defective product.

MCL 600.2947(6) In a product liability action, a seller other than a manufacturer is not liable for harm allegedly caused by the product unless either of the following is true:

(a) The seller failed to exercise reasonable care, including breach of any implied warranty, with respect to the product and that failure was a proximate cause of the person's injuries.

(b) The seller made an express warranty as to the product, the product failed to conform to the warranty, and the failure to conform to the warranty was a proximate cause of the person's harm.

The rash of dangerous and defective product imports from China, particularly products intended for use by babies and children, calls into question the wisdom of this approach which favors willful ignorance over more careful selection and testing of products, and all-but-immunizes everybody involved in importing and selling a defective product manufactured overseas (but you can always go to China and try suing the manufacturer, right? Yeah, right.)

Sears and Customer Service

Oh, the problem's not so much Sears, but Sears exemplifies the problem. Also, given that there was a time when Sears could literally deliver your doorstep to your doorstep, it's amazing that the 21st century successor makes no apparent effort to distinguish itself from its competitors.

Sears also has the problem that they have been around long enough that a large proportion of the population is likely to have had a customer service problem with them, and pretty much everybody else is going to know somebody who has had a customer service problem with them. (Case in point.) Sears made the mistake a few decades back of letting its quality control slip, and by doing so it alienated an enormous base of consumers. I was one of them, so I was a bit surprised at myself for giving Sears another chance with my recent purchase of a washer and dryer.

The delivery crew who brought the appliances was very polite and professional. But unfortunately, somebody at the warehouse had crushed the top of the dryer (a v-shaped impression, probably 1-1/2 to 2 inches deep at the front of the unit and reaching all the way to the back), and had scraped both sides of the washer. I probably could have been convinced to keep the washer (for a discount), assuming I tested it and it worked, but the damage to the dryer was a bit much (and I'm not at all sure that it would have worked).

This is where Sears could have gone the extra mile, to ensure a positive customer experience. They could have apologized and arranged for a very rapid shipment of replacement units. But Sears doesn't choose to distinguish itself in its treatment of customers. Its shipping department punches product information into a computer and if the computer says "two weeks", you get your replacement shipment in two weeks. If you ask for an explanation, you get to talk to a supervisor who will also tell you want the computer says. In fairness, the supervisor I spoke with seemed to make a genuine effort to find out if a faster shipment was possible, but she had no discretion to go outside of channels - so the date the computer spat out is the date of redelivery.

I would also like to tell you that calling customer service was easy, but you probably already know better. The first time I called, using the number on the receipt from the order, after I was told that my phone number isn't in the system for delivery (it is) and punching in my phone number (the same one they automatically detected when I called), I was given an abrupt recorded message that there was a problem with my call, and was disconnected. When I called back, after again punching in my phone number, I was connected to a representative. The first thing she wanted from me, of course, was my phone number. (This is hardly unique to Sears, but is absurd.) After a brief discussion, she transferred me to home delivery. Home delivery told me that I had already spoken to somebody from home delivery when the problem with the shipment was detected. That was true, I responded, but that person told me to call customer service as I could probably get an expedited shipping date. "I don't know why they would have told you that." (Don't you just love that reply?) Then it was suggested that customer service should help me - "Do you want the number before I transfer you?" You guessed it - the same number I called earlier, which resulted in my being transferred to home delivery.

After another attempt to discuss the situation with customer service, I was offered the aforementioned opportunity to speak to a manager. I asked if the manager could do something, or if she would simply repeat what I had previously been told. The response was that I could expect to hear what I had previously been told. "Do you still want to talk to her?" Sure. Why not. I'm now more than twenty minutes into the phone call, and what's a few more minutes.

The person who took over the call identified herself as a supervisor, and I do think she tried to find a way to expedite the delivery, but as I previously noted she seemed locked into channels. She had neither the power nor authority to "find a way to make the customer happy". Toward the end of our discussion, the line dropped. I didn't get a call back; perhaps she thought I hung up on her. Needless to say, two dropped calls in one exchange with customer service is two too many.

The issue here is that Sears does have the power and capacity to obtain and redeliver the washer and dryer in less than two weeks - they simply don't find that level of customer support to be worth the investment. I know that I could as easily be writing this complaint about another appliance vendor, and my thoughts would be the same: Customer service is easy when things go as planned. But if you don't care enough to distinguish yourself when the customer has a problem, particularly when the problem is your fault, you will send the message that you don't care about the customer.

"I Tried Really Hard, But It Turns Out That 'Innocent Pranks' Aren't Against The Law....

I have heard residents of Jena complain that theirs is not a racist town, and that the news media is being unfair in its depiction of the town when covering the "Jena Six" story. I'm happy to give the residents of Jena the benefit of the doubt, but until today that me with one of two possibilities: They elected a racist prosecutor, or they elected a prosecutor who believes the town to be largely racist and conforms his policies to that perception. Now he speaks out to defend himself, and....

I cannot overemphasize how abhorrent and stupid I find the placing of the nooses on the schoolyard tree in late August 2006. If those who committed that act considered it a prank, their sense of humor is seriously distorted. It was mean-spirited and deserves the condemnation of all decent people.

But it broke no law. I searched the Louisiana criminal code for a crime that I could prosecute. There is none.

When I find something to be stupid, abhorrent, and worthy of prosecution, I am disinclined to refer to it as an "innocent prank", and if I were a prosecutor I would not be at all inclined to threaten those who object to the abhorrent act, "See this pen? I can end your lives with the stroke of a pen." I personally might also question why there was a "white tree" in the first place, and why school administrators found that acceptable. I guess I'm an oddball.

This is a fascinating passage,

Conjure the image of schoolboys fighting: they exchange words, clench fists, throw punches, wrestle in the dirt until classmates or teachers pull them apart. Of course that would not be aggravated second-degree battery, which is what the attackers are now charged with. (Five of the defendants were originally charged with attempted second-degree murder.) But that’s not what happened at Jena High School.

The victim in this crime, who has been all but forgotten amid the focus on the defendants, was a young man named Justin Barker, who was not involved in the nooses incident three months earlier. According to all the credible evidence I am aware of, after lunch, he walked to his next class. As he passed through the gymnasium door to the outside, he was blindsided and knocked unconscious by a vicious blow to the head thrown by Mychal Bell. While lying on the ground unaware of what was happening to him, he was brutally kicked by at least six people.

Okay... I have never been one to argue that, all else being equal, the "Jena 6" weren't deserving of charges from this incident, and let's assume for the sake of argument that of the competing accounts of what occurred, the prosecutor's version is correct. The prosecutor now believes that the current charges of "aggravated second-degree battery" are justified. He doesn't mention that the six were originally charged with aggravated battery before he intervened and raised the charges to "attempted second-degree murder". He makes no attempt to explain or justify his decision to increase those charges to "attempted second-degree murder". If the current charges (and thus the original charges) were justified by the facts, exactly what was it that motivated his decision to increase the charges? And has he truly forgotten that it was not the original charges, but was his intervention, which led to this furor?

Walters also skips over a number of other events, including fights where white students were the aggressors, in which the most severe charge he contemplated was apparently "simple battery". The more perplexing charging decision - that following the incident in which a white student brandished a shotgun at black students and was disarmed by one of the students. Walters didn't charge the white student with any offense, and charged the black student who disarmed him with theft of a firearm, second-degree robbery and disturbing the peace. (Even if we were to assume, as Walters was apparently happy to do, that the shotgun was brandished out of some form of "self defense", after the gun-wielding man was disarmed was the black student supposed to say, "Oh, sorry. Here, you can have the gun back now"? (And does Louisiana have a "stand your ground" self defense law? Because if I were able to avoid a (presumed) group of threatening youths and get to my car, I would personally drive away rather than pulling out a loaded shotgun to confront them.) I welcome Walters to write a follow-up piece explaining himself. Until he does, I regard Walters' choice not to speak in his own behalf to be a tacit concession that his various other charging decisions related to this case are indefensible.

As for Justin Barker being forgotten in the midst of all the furor over Walters' charging decision? If they looked for information about Barker, here's what the media would find. I'll give Barker the benefit of the doubt, that he was duped into giving a statement to white supremacists. But perhaps Mr. Walters should consider having a conversation with his star witness about actions which might prejudice (no pun intended) the outcome of the pending criminal cases.

In the final analysis, though, I am bound to enforce the laws of Louisiana as they exist today, not as they might in someone’s vision of a perfect world.

Even with his attempt at an explanation, if that's the measure by which we are to judge, I would deem Walters a failure.

"I Tried Really Hard, But It Turns Out That 'Innocent Pranks' Aren't Against The Law....

I

Because Nothing Protects American Values Better Than Prior Restraints On Speech

I wish I were surprised by all of the fuss over Mahmoud Ahmadinejad's request to lay a wreath at "Ground Zero" and his appearance at Columbia University. It's all too predictable. (When I heard some of the reaction to the "Ground Zero" proposal, I was reminded of the narrow distance between "things that could never happen here" and things that could.

I also can't say that I am suprised that Anne Appelbaum among those who would have preferred that Ahmadinejad be denied the opportunity to speak.

Ahmadinejad's agenda, though, differs from that of the traditional autocrat.

Wait... Ahmadinejad is an autocrat? He's the (sort of) popularly elected front man for the government, and his position carries real power, but he doesn't call the shots. Perhaps Applebaum hears the word "President" and assumes that nobody could possibly hold a higher office, but actually there's a guy called Grand Ayatollah Ali Khamenei who is the "Supreme Leader" of Iran, and who has ultimate control over the armed forces, foreign policy and domestic policy.

His goal is not merely to hold power in Iran through sheer force, or even through a standard 20th-century personality cult: His goal is to undermine the American and Western democracy rhetoric that poses an ideological threat to the Iranian regime.

Well, if that's true, then denying him a platform would do what? Give him the opportunity to state, "They say they believe in free speech. They say they believe in open debate and a 'marketplace of ideas'. They say 'sunlight is the best disinfectant' for bad ideas. Yet when I challenged their ideas, they hid in the shadows." And Anne Applebaum could declare victory.

This week, he declared that his visit to New York would help the American people, who have "suffered in diverse ways and have been deprived of access to accurate information."

That should have telegraphed to Applebaum that he would not see denial of a platform as a loss, but as a basis for the type of criticism I just described. She would be playing into his hands.

Thus the speech at Columbia: Here he is, the allegedly undemocratic Ahmadinejad, taking questions from students! At an American university! Look who's the real democrat now!

Well, darned if you do, darned if you don't. But if you don't, nobody gets to jeer or laugh at him. (Or grandstand and berate him in introductory comments.)

But the most peculiar thing about columns like Applebaum's is her presumption that it is somehow horrible, and somehow undermine's free speech, that we periodically debate the scope and limits of free speech:

Instead of debating freedom of speech in Iran, here we are once again talking about freedom of speech in America, a subject we know a lot more about. Which is exactly what Ahmadinejad wanted.

You will note that it is not the proponents of free speech, or those who say, "I wouldn't personally invite him to speak, but it's Columbia University's right to do so", who are behind this "talk" Applebaum finds so troubling. It's people like Applebaum.

And what an idea....

Perhaps Columbia could even have insisted on an appropriate exchange: Ahmadinejad speaks in New York; Columbia sends a leading Western atheist - Richard Dawkins, Christopher Hitchens or, better still, Ayaan Hirsi Ali - to Qom, the Shiite holy city, to debate the mullahs on their own ground.

This would accomplish all of... what? Does she fancy that Christopher Hitchens would win over the crowds by insulting the Mullahs, opining that God doesn't exist, blaming most of history's bloodshed on organized religion, and revealing that he understands little of Christian theology (let alone Islamic theology). Surprise - you don't have to have a deep grasp of theology to be an atheist. And guess what - a debate between a devout theologian and an atheist on the subject of religion is a nonstarter, because the two sides are arguing from different premises. Save Hitchens for Ahmadinejad - I'm sure they can both come up with witty ways to insult the other - but send a scholar to debate the Mullahs.