Category Archives: Commentary

Consider the Moon

The following from Bill O’Reilly distressed me.

“I’ll tell you why [religion's] not a scam, in my opinion: tide goes in, tide goes out. Never a miscommunication…It always comes in, and always goes out. You can’t explain that.”
Bill O’Reilly

Of course the tides can be explained. Google offers three million results for “what causes the tides.”  The Earth and the moon revolve around a common center of gravity.  Centrifugal force creates a bugle in the ocean that accounts for a high tide.  On the opposite side of the Earth, the  gravitational pull of the moon creates a second bulge , accounting for another high tide.  As the Earth rotates on its axis each day these two bulges circle the earth creating two high tides a day.

O’Rreilly’s misplaced confidence & shoddy workmanship

My distress come not from O’Reilly’ not understanding the moon’s effect on the ocean. I am sure he does stand alone in that failing. What distresses me is that he took on it on faith that he had his understanding of the tides was complete–that he knew that the the tides were unexplained. Furthermore he was so sure, so willing to express this view on TV without first taking two minutes to research it or ask some productions assistant to check it out. That is a frightening amount of confidence about a subject he is clearly not familiar with.

When I first read about his comment I thought maybe it was an off-the-cuff remark that just came to him while taping. But the clip indicates he had plenty of opportunity to prepare. The topic of the segment was atheism and this point–the inexplicable tides–was his main argument for the existence of god. God should get a better pitchman.

To be fair, a few minutes before making his comment about the tides, O’Reilly warned the viewers by admitting he is not “the smartest guy in town.”

Five times as much positive interaction as negative

Many Little Things That Make You Happy are Better Than A Few Big Ones

Because of the disproportionate weight of the negative, balance does not mean a 50-50 equilibrium. Researchers…have found that a very specific ratio exists between the amount of positivity and negativity required to make married life satisfying to both partners. That magic ratio is five to one. As long as there was five times as much positive feeling and interaction between husband and wife as there was negative, researchers found, the marriage was likely to be stable over time. In contrast, those couples who were heading for divorce were doing far too little on the positive side to compensate for the growing negativity between them.

Truth at the expense of others

LifeHacker has a good article on truth telling. As the following excerpt shows, selfish people often excuse their rude behavior by claiming, “it’s the truth.

There is a notable difference between telling the truth and giving an honest opinion. “Yes, I broke the vase” is much different from “your web site is rubbish.” In the latter example, the web site’s quality is subjective and so providing an honest opinion isn’t necessarily indicative of the truth.

How to Lie and Tell the Truth Without Being an Asshole

Taxes—Three Litmus Tests

From Time’s “The Republican Revolution,” by Michael Reynolds

On the Oct. 31 edition of 60 Minutes, Stockman [Reagan’s budget director, David Stockman] weighed in on this madness. “We’ve demonized taxes,” he said. “We’ve created almost the idea that they’re a metaphysical evil … It’s rank demagoguery. We should call it for what it is. If these [Republicans] were all put into a room on penalty of death to come up with how much they could cut, they couldn’t come up with $50 billion, when the problem is $1.3 trillion. So to stand before the public and rub raw this antitax sentiment, the Republican Party, as much as it pains me to say this, should be ashamed of themselves.”

Reynolds concludes…

I would suggest three litmus tests to gauge whether the Republicans are serious about deficits: 1) Are they prepared to stop with the tax cuts? Because the deficit will keep widening with more of them. 2) Are they prepared to cut middle-class entitlements? Because the only places to find real reductions in federal-government spending are in the large, popular programs like Medicare and Social Security. 3) Are they ready to take on the Pentagon? Because at $717 billion, defense spending — more than half of all discretionary spending — has to be trimmed.

These are not political statements. They are mathematical ones, and it is on understanding math, not politics, that the third Republican revolution now rests.

P&G Dividend Day at Kings Island

P&G Dividend Day
P&G Dividend Day Photo by hubertk

Last weekend was the annual P&G Dividend Day at Kings Island in Mason, Ohio. On Dividend Day P&G rents the whole park and employees and their families are treated to free admission. We had an jaw-dropping good time. Especially on the new Diamondback roller coaster, which we road at least half a dozen times. We tried to count how many attractions we rode but lost count around 17 or 18, including the Diamondback, Firehawk, Backlot Stunt Coaster (formerly known as the Italian Job), The Crypt, Flight Deck, Vortex, Adventure Express, Congo Falls, Xtreme Skyflyer, and the Sling Shot. All these rides lead me to the conclusion that I prefer the fast, smooth rides that create excitement with fluid, even acceleration over the rides that rely on jerky rapid changes in direction. I read that as we get older our brains shrink and rattle in our heads a little more. ((http://news.bbc.co.uk/2/hi/science/nature/56598.stm)) The more fluid, less jerky rides are probably gentler on our brains but still create pleasurable anxiety with the acceleration, speed, height, and inversion. Below are some some videos documenting the fun.

Flight Deck


Flight Deck, a suspended roller coaster, is one of our perennial favorites. Most of our friends are willing to take this ride so no one feels guilty about leaving someone out. This year was the first year I sat in the front seat. As we approached the top of the first incline the structure below us ended and for a second I thought there was a serious problem, then I remember the track is above the car—some pleasurable anxiety for sure. I was also thoroughly entertained by how wide the cars swing out on the twists and turns. You can see the wide swinging turns in the video. After the final turn the cars swings to almost horizontal.

The Sling Shot


On our way to lunch we noticed the Sling Shot, which normally costs $20 per ride, was going for only $10 per ride. What a bargain. I have always wanted to ride the Sling Shot but could never justify spending $20 on a 90 second ride while in a park offering dozens of other rides for free. But this time we decided to spend the extra cash. It was worth it. The Sling Shot was a lot of fun. The launch is fluid and quiet, you see mostly sky so the only way you can judge your acceleration is by the sinking feeling in your stomach, a great feeling in this case. Friends have commented that they have avoided this ride because it spins. But this is a misconception. There were no full spins, just some rocking. Sometimes we rocked forward and faced the ground, but mostly we were facing up and out. At $5 or $10 a ride the Sling Shot offers great acceleration and affords a nice view of the park.

The Skyflyer

The Skyflyer, like the Sling Shot is one I have avoided because of the cost. But on Dividend Day the price was only $5. The leisurely ride up to the zenith affords great views of the park and ample time to second guess the decision to embark on the ride. At first we were laughing, joking, and enjoying the view, but as we went higher my wife’s tone changed, she tersely told us to “quit screwing around this is serious.” I laughed but silently agreed the ultimate height was more than I had anticipated. Once the zenith was reached the crew gave the instruction to pull the rip cord and begin the drop. The first few seconds are just free fall, the cables are not taught and gravity is the only force you experience, a special, natural, fun force. The video gives the impression that when the cables do engage there is a great jerking feeling but the video lies. The transition feels pretty smooth, just like the rest of the experience, which is just swing freely through the air while the wind rustles your hair.

Diamondback

The Diamondback was undoubtedly our favorite. It is fast, tall and smooth, there is no herky-jerky rattle or breakneck turns. And the wait-times were reasonable. For our first ride we didn’t have to wait at all when we used the single-rider line. Not surprisingly they closed the single-rider line immediately after us. But even the regular line never lasted more than 30 minutes and was usually less than 15-20 minutes. The front car is by far the best experience, with its unobstructed view of the park and the track, you get the full effect of the 215ft drop an the 80 mph wind in your face (and a few bugs too). The Diamondback is so smooth it kind of ruined the Vortex for us. After the Diamondback the Vortex felt remarkably jerky. The way the head’s in front of me were wiping back-and-forth, I thought the people in front were going injure their necks. My neck didn’t feel to good either.

Impressive Bike Tricks

I enjoy watching all the amazing tricks people can perform on their bikes. From the basic track stand while waiting for a light, to 360s and back flips, the tricks transfix me.  Recently two videos have amazed me.  I came across the first one back in April.  It celebrates Danny MacAskill’s amazing leaps, spins and balance.  Some of his tricks require not just ambition, skill and strength but remarkable creativity (see 3:06).  The footage was recorded in high-def:

The second video is decidedly low-def.  It was filmed more than 100 years ago.  Yes, 110 years ago.  The video is a compilation of Thomas Edison’s footage of bike tricks and comedy.  In 100 years the tricks have improved but the fundamentals are the same.  This surprises me.  I never imaged people doing tricks on bikes at the turn of the century.  My uninformed impression was that tricks and freestyle sports like biking, surfing and skateboarding didn’t emerge until the 1960s or ’70s.  Enjoy.

The Ohio Rules of Professional Conduct should be amended to emphasize that disclosure and informed consent do not cure all conflicts of interest.

The Ohio Rules of Professional Conduct should be amended to emphasize that disclosure and informed consent do not cure all conflicts of interest. The current rules allow conflicts of interest to be waived by providing full disclosure and obtaining informed consent. Likewise, the Supreme Court of Ohio’s opinions hold that attorneys can avoid sanctions by simply disclosing their conflicts of interest. But two arguments militate against disclosure as a cure-all. First, the underlying assumption that clients are capable of evaluating the disclosed risks and adjust their behavior accordingly is only warranted when clients are sophisticated. Second, empirical evidence suggests that disclosure may exacerbate the bias created by conflicts of interest.

The touchstone of the attorney-client relationship is the belief that the attorney represents the client’s interest and that this representation is not diluted by conflicting interests. The Rules prohibit attorneys from accepting or continuing representation if a conflict of interest exists. ((Ohio Prof. Cond. Rule 1.7(b) (2007).)) Rule 1.7(a) states a conflict of interest is created when

(1) the representation of that client will be directly adverse to another current client;
(2) there is a substantial risk that the lawyer’s ability to consider, recommend, or carry out an appropriate course of action for that client will be materially limited by the lawyer’s responsibilities to another client, a for a third person or by the lawyer’s own personal interests.

Rule 1.8(a) uses similar language to describe conflicts of interest that may arise between the client’s interest and the attorney’s own “ownership, possessory, security, or other pecuniary interest.” ((Ohio Prof. Cond. Rule 1.8(a) (2007).)) Rule 1.9(a) proscribes representation of a new client when “that person’s interests are materially adverse to the interests of the former client.” ((Ohio Prof. Cond. Rule 1.9(a) (2007).))

The rules detail some situations in which conflicts cannot be waived by the client. These conflicts are not distinguished by a single principle but are based on value judgments by the drafters. ((Jack A. Guttenberg and Lloyd B. Snyder, The Law of Professional Responsibility in Ohio, 1998. § 10.2.))

The comments to Rule 1.7 begin by asserting “[t]he principles of loyalty and independent judgment are fundamental to the attorney-client relationship and underlie the conflict of interests provisions of these rules.” These principles should guide and inform the drafting and interpretation of the rules governing conflicts of interest. But Rules 1.7, 1.8, and 1.9 each allow attorney’s to accept or continue representation despite a conflict of interests. If the conflict is fully disclosed and the affected client provides written informed consent. These exceptions are not consistent with the principles asserted in the comments. They undermine the principles by allowing clients, perhaps unwittingly, to waive the loyalty and independent judgment which they expect from an attorney.

Investing the client with the power to waive the conflict of interests is predicated on the assumption that the client “is capable of weighing the risk of the conflict against the value of the representation.” ((Id.)) But this assumption is likely unfounded except when attorneys are working with the most sophisticated and least vulnerable clients.

Consider Disciplinary Counsel v. Rafidi. ((Disciplinary Counsel v. Rafidi, 114 Ohio St. 3d 336 (Ohio 2007).)) An attorney agreed to represent two suspects in a drug cartel investigation. The attorney agreed to represent the first for a $200 flat fee. From this first client the attorney learned that a second suspect in the same matter also needed representation. The attorney offered his services to this second suspect, who agreed to a $20,000 retainer. This created an obvious conflict of interest: one suspect might choose to implicate the other.

Both clients made their decisions to hire the attorney while in police custody with no readily apparent alternatives.

The Supreme Court of Ohio suspended the attorney for six months based on this and other related ethical violations. The court stated the attorney “had an obligation under DR 5-105(A) ((The Supreme Court of Ohio Task Force on Rules of Professional Conduct indicates that Ohio Code of Professional Responsibility DR 5-105(A) was replaced by Ohio Rules ofprofessional Conduct Rule 1.7. http://www.sconet.state.oh.us/Atty-Svcs/ProfConduct/proposal/rule_updates_102805/appendix_c.pdf (last visited Dec. 7, 2007).)) to fully disclose to [his potential clients] his dual representation and to obtain the consent of both clients.” ((Rafidi, 114 Ohio St. 3d at 336.)) This holding indicates that the potential conflict of interest could have been cured by a disclosure.

To illustrate the effect of the conflict the Court noted the attorney focused his attention on the higher paying client. The original client had to call the attorney to find out that he was still a suspect.

The full disclosure may have saved the attorney’s disciplinary record but it is unlikely that disclosure would have changed the behavior of the clients or the attorney. It is unlikely that the disclosure would have compelled the attorney to call his $200 client any sooner. The Court’s opinion notes that the $200 client had previously retained the attorney for another unrelated matter and that the client contacted the attorney for advice in the criminal matter because “he was the only attorney [he] knew”. ((Id.)) This statement reveals that the $200 client was not a sophisticated client and that the full disclosure of the conflict would probably not have inspired the $200 client to seek alternative representation.

The findings of the Board of Commissioners on Grievances and Discipline suggest the second client was not in a position to properly evaluate the disclosed conflict or to seek alternative representation either. The Board noted that “persons who are incarcerated on criminal charges have restricted access to legal representation and are vulnerable to overreaching and improper solicitation”. ((Id. at 336, 338.)) The mere disclosure would not have assured either client of the “loyalty and independent judgment [that] are fundamental to the attorney-client relationship.” ((The Law of Professional Responsibility in Ohio, supra note 4.))

In Disciplinary Counsel v. Jacob ((Disciplinary Counsel v. Jacob, 109 Ohio St. 3d 252 (Ohio 2006).)) the Supreme Court of Ohio again implied that disclosure could cure a conflict of interest. In Jacob the attorney represented husband and wife clients. After the husband and wife separated, the attorney helped the husband remove the wife as a beneficiary from a trust and advised the husband to protect some of the husband’s assets from the wife. Subsequently, the attorney accepted representation of the wife. He removed the husband from her will. The attorney did not disclose to the wife his representation of her husband on similar matters. Consequently he did not secure informed consent. For this failure the Court sanctioned the offending attorney.

As in Rafidi the attorney could have saved his good name by disclosing the conflict but it is not clear the wife’s interests would have been any better served. Considering her existing relationship with the attorney, an attorney she trusted, the disclosure of the conflict may not have inspired the wife to seek alternative counsel.

Scholars expert in the effects of disclosure suggest that disclosure often has then effect of building trust instead of encouraging the client discount honesty an loyalty of the relationship. ((Daylian M. Cain, George Loewenstein, and Don A. Moore, The Dirt on Coming Clean: Perverse Effects of Disclosing Conflicts of Interest, 34 J. Legal Stud. 1, 6 (2005).)) The disclosure by the conflicted party is often viewed as an act of honesty. This act engenders trust and reduces the likelihood that biased advice will be appropriately discounted.

The Rafidi opinion illustrates this effect. The Court cited the attorney’s full disclosure of the offense to the Board as a mitigating factor. In other words the disclosure increased the attorney’s esteem in the eyes of the Court.

Besides engendering misplaced trust or esteem, disclosure may exacerbate the bias inherent to conflicts of interest. In a recent empirical study of the effects of conflicts of interest researchers concluded that disclosure benefited the disclosing party and harmed the party seeking advice. This conclusion was reached by testing three scenarios involving “advisors” and “estimators.” The advisors, analogous to attorneys, provided advice to the estimators, analogous to clients, regarding the value of a jar of money. The estimator was afforded only a glance at the jar, but the advisor had time to thoughtfully inspect the jar.

In the first scenario both the advisor and the estimator earned money based on the accuracy of the estimator’s estimate of he value of the money in the jar. The advisor was rewarded for giving helpful advice. The more accurate the estimate, the more money both parties earned. There was no conflict of interest in this scenario.

In the second scenario the estimator was compensated the same way but the advisor was rewarded for misleading the estimator. The less accurate the estimate, the more money the advisor received and the less the estimator received. In this scenario the estimator was not aware that the advisor had a conflict of interests. Not surprisingly the advisor’s advice was misleading and the estimator’s estimates were less accurate. In this scenario the estimators earned less money than they did in the first scenario.

In the third scenario the incentives remained the same as in the second, but in this scenario there was full disclosure. The estimator knew that the advisor had a conflict of interest; that the advisor had an incentive to mislead the estimator. Again not surprisingly the estimator received misleading information. But what is surprising and significantly undermines the belief that disclosure cures conflicts is that the estimators faired worse when the conflict was disclosed.

Based on a statistical analysis of the data the researcher offer two explanations. First, that it is difficult to properly discount advice tainted by a conflict of interests. This difficulty was not abated by repeated experiences. ((“the results provided no grounds for concluding that either experience with the task or feedback lessened the biasing effects of disclosure.” The Dirt on Coming Clean: Perverse Effects of Disclosing Conflicts of Interest, supra note 13.)) Second, that advisors were more willing to give self serving “advice” when the estimator was on notice of the conflict. The disclosure shifted responsibility from the advisor to the estimator.

In short the researchers found that estimators (clients) faired the best when there were no conflicts of interest and that they faired the worst when conflicts were disclosed. Advisors faired the best when their conflicts were disclosed.

This research combined with the holding by the Supreme Court of Ohio that disclosure can cure conflicts of interest shows that the Ohio Rules of Professional Conduct should be amended to reduce the questionable perception that disclosure can cure a conflict of interests. Attorneys have only their good name. Similarly, the profession has only its reputation. The Rules are one way that this reputation is upheld. By reducing reliance on disclosure to cure conflicts of interest the Rules can protect and enhance the reputation of the profession.

Education means more to some


Body World
Originally uploaded by Alexis Deadly

Dr. K’s story of dangerous bets:

In med school one student bet another that he could eat a length of human muscle that had been preserved in formaldehyde. Dangerous indeed. Formaldehyde is poison and cannibalism is widely frowned upon.

The bet was accepted and the the muscles was consumed. But the bet was not paid and a rivalry between two factions grew until the dean of the school had to step in and reprimand the offending students. This was the lesson of the story—don’t make foolish bets, the dean might reprimand you.

Dr. K’s story amused me. Some perceive a reprimand for disrupting school as a greater risk than the poison and moral approbation of eating human flesh.

iTunes Store down for iPhone Activations

Waiting for Activation

Waiting for Activation

The iTunes Store appears to be overloaded. Or at least that is what the staff at the Kenwood Mall Apple store in Cincinnati, OH.

They are still requiring buyers to connect their new iPhones to iTunes for two (2) minutes before leaving the store. The two minutes is apparently enough time to satisfy some technical or legal requirement. After the two minute buyers are free to head home and activate the iPhone at their leisure—probably some hours from now. (10:09 AM EST, Friday, July 11, 2008).