Numbers that Demonize the American People

by Charles Platt

I don’t think the Harris polling company has violated any laws, here. But it does look to me as if they have been, perhaps, unethical.

A widely quoted Harris poll claims that 57% of sampled Republicans think that Barack Obama is a muslim. This has been a great gift for liberal commentators who are predisposed to fear and loathe the Tea Party and its supposed influence. But did this gift just materialize from dispassionate and objective data, as if by accident? Or was it a premeditated attempt to create a misleading picture that would demonize a segment of the American public?

First take a look at the actual poll. Here’s the apparent source:

Browsing through it, we find that Republicans are not the only ones who doubt the president’s religion. Even among Democracts, 15 percent supposedly think that he is a Muslim. That translates as more than 10 million people, if we’re sampling the national population of around 70 million registered democrats. This doesn’t make sense to me. It cannot be true–and in fact, it isn’t true.

To find out why, we need to browse a little further.

Here, buried on page 4, is the methodology. It states that the entire poll was conducted online. In other words, this poll was not done by telephoning a random sample of the population and asking them to respond.

The online population is not representative of the general population. Therefore, we are starting with a non-representative sample, probably weighted toward those who have strong political opinions, both left and right, since political extremists seem more numerous online.

But the sampling problem has only just begun. There are millions of Internet users. How were the respondents chosen? Were they a random sample? No, apparently not. They seem to have been allowed to choose themselves. It says in the Methodology: “Respondents for this survey were selected from among those who have agreed to participate in Harris Interactive surveys.” In other words, the data are based on the views of volunteers.

I suggest it is extremely likely that people who hold strong opinions are more likely to want to talk about them than people who have moderate opinions or are simply not interested.

Worse still, Harris does not even reveal the process by which the final 2,320 people were chosen from among all the respondents. Harris simply says they “were selected.”

To me, this looks like a travesty of polling. It makes a final selection by means that are not revealed, from a group who just happened to respond to this poll, who are not necessarily representive of all the people who participate in Harris polls, who are not representative of Internet users, who are not representative of the general public.

If you conclude that the poll therefore has a very high probability of error–well, no problem! Harris agrees with you! In the Methodology section we find this artfully worded disclaimer: “Because the sample is based on those who agreed to participate in the Harris Interactive panel, no estimates of theoretical sampling error can be calculated.”

I take this to mean that there is no accuracy. This is not, and was never intended to be, a picture of American political opinion.

But it gets even worse, because when the people at Harris ended up with the numbers, they changed them.

The numbers do not reflect the population as a whole, but have been changed as if they do. The Methodology section states: “Figures for age, sex, race/ethnicity, education, region and household income were weighted where necessary to bring them into line with their actual proportions in the population.” So, for instance, if the selection of respondents didn’t happen to include many women, the prevalence of their views was apparently multiplied by a suitable factor–which of course is not revealed.

The press release does sneak in a reference in its third paragraph stating that the poll was of “2,320 adults surveyed online,” but the real meaning of this reference is never spelled out, and is outweighed by the document’s first paragraph, which draws attention to “the large numbers of Americans who hold extreme views of President Obama.” This implies that everyday Americans are the real subject of inquiry. Certainly that is how the polling data have been presented by commentators, and I have not seen any press release from Harris correcting this misapprehension.

Why did Harris do it this way? Well, “internet polling” is cheaper than telephoning people, but is that the only reason to do it? Surely the people at Harris must know that they will harvest more extreme views via this methodology, and since extremism was the focus of this poll (note the term “wingnuts” in its title), the methodology was virtually guaranteed to give the most sensationalistic results that anyone could hope for.

I don’t believe the people at Harris are stupid. I think that they knew what they were doing. Sensationalism sells, and thus the results were sure to be quoted widely. Does this mean the objective was just to get media coverage? Or could it be even worse than this? Did Harris specifically *want* to portray Americans this way, feeding the agenda of commentators who are eager to demonize anti-Obama groups such as the Tea Party?

I don’t want to think that a respected national polling organization has perpetrated such a piece of gross trickery. And indeed I would welcome any rebuttal disproving my conclusion. But given the disclosures in the poll itself, what other conclusion is possible?

Student Loan Slavery!

Way back when, they said “go to the best law school you can get into.” I say bullshit. You want a law degree? Go to the CHEAPEST school you can get into. Here’s an infographic on how student loans work.

H/T: Above the Law

Textbook beta behavior

By J. DeVoy

That’s Some Fuckery found some Beta who really loves Brenda.

Cheers to patriotism and logic!

By Tatiana von Tauber

Georgia Republican, Jack Kingston, deserves applause.   Why?  Because Kingston is exercising logic: he supports lowering the drinking age for military service members. 

“If you’re 18 years old, you can get married, you can sign a contract, buy a piece of property, you can do just about anything, except buy a beer,” said Kingston. “We’re telling young people, you can fly a BlackHawk helicopter, you can drive an Abram tank, you can squeeze the trigger on an M4 rifle and kill a fellow human being, but when you go back home to the officer’s club or MCO clubs, we’re not going to let you make a decision to a beer with your chicken dinner. I think that’s ridiculous and it’s an insult to the men and women who give us freedom.” (source)

Beautiful.  Now if we could get this kind of thinking to transition into other areas we can again become greater than the status quo. I say lower the drinking age all around is the ultimate goal being all 18 year olds have equal rights but one has to begin somewhere and if anyone deserves it, it’s our loyal soldiers.

Broken Penises and the Law

Her reverse cowgirl is, apparently, both incredible and dangerous

By Marc J. Randazza

As office workers, few attorneys have the opportunity to contemplate what workplace injuries can mean to their clients. Honestly, what’s the worst injury you can get on the job in a law office? A paper cut? Your panties in a wad?

In the porn industry, like any other, workplace injuries are an issue. Normally, it is the female talent that winds up a little sore. I mean, those high platform heels will make a girl’s feet hurt like you wouldn’t believe. But, even for the men on a straight porn set, even one that involves no strap-ons, danger lurks… waiting to pounce upon an unsuspecting victim.

Prince Yahshua, CEO of Silverback Entertainment, recently met this unfortunate fate. (Source.) While working with Bethany Benz, a/k/a Caviar, a reality television star and porn novice, they were filming a scene where she was riding him “reverse cowgirl” For those of you who don’t know that position, she was on top of Prince, straddling him while facing toward the camera. The couple lost their natural rhythm and, on an upward thrust, Prince had an epic miss, followed by an audible “pop.” Prince’s penis began gushing blood, and he was rushed to a hospital. There, he underwent surgery for a torn urethra and ripped penile muscle wall, staying in the hospital for three days.

Luckily, Prince Yashua is doing well, and we wish him a continued speedy recovery.

Of course, this being a law blog – we need to look at the legal angle – even just in the hypothetical. Could the Prince get compensation for his broken scepter? If he is classified as an employee of the studio, the poor guy is left with nothing but a workers’ compensation claim. Meaning — he gets partial wage replacement and some medical bills paid. That would really make for a boring blog post though, wouldn’t it?

Sweet mother of god... NO!!!!!

On the other hand, if he is classified as an independent contractor, then one might think that this is a case that turns on whether Bethany was negligent or not in her reverse cowgirl ride. Did she have a duty of care, and if so, did she breach that duty, thus causing injuries to our unfortunate royalty? Is this a case of, “you break, you buy?”

Incredibly, this precise issue has been litigated before. See Doe v. Moe, 63 Mass. App. Ct. 516, 827 N.E.2d 240 (2005).

The plaintiff and the defendant were in a long-term committed relationship. Early in the morning of September 24, 1994, they were engaged in consensual sexual intercourse. The plaintiff was lying on his back while the defendant was on top of him. The defendant’s body was secured in this position by the interlocking of her legs and the plaintiff’s legs. At some point, the defendant unilaterally decided to unlock her legs and place her feet on either side of the plaintiff’s abdomen for the purpose of increasing her stimulation. When the defendant changed her position, she did not think about the possibility of injury to the plaintiff. Shortly after taking this new position, the defendant landed awkwardly on the plaintiff, thereby causing him to suffer a penile fracture.

Although this was generally a position the couple had used before without incident, the defendant did vary slightly the position previously used, without prior specific discussion and without the explicit prior consent of the plaintiff. It is this variation that the plaintiff claims caused his injury. While the couple had practiced what the defendant described as “light bondage” during their intimate relations, there was no evidence of “light bondage” on this occasion. The plaintiff’s injuries were serious and required emergency surgery. He has endured a painful and lengthy recovery. He has suffered from sexual dysfunction that neither medication nor counseling have been able to treat effectively. (Op. at 518)

In that case, the plaintiff wanted the court to use simple negligence theory. Was there a duty? Was it breached? Was the breach the cause of the plaintiff’s damages? But, the Supreme Judicial Court Court of Appeals of my beloved Commonwealth of Massachusetts just couldn’t stomach the thought of negligent fucking cases spewing all over the courts. The court determined that… well, deciding what was “reasonable care” in bed is just not something they wanted any Massachusetts court to get into.

We must determine whether the application of a standard of reasonable care to private consensual sexual conduct is appropriate or even workable. Questions of fact that would arise from these circumstances must be susceptible to consideration by a fact finder without prejudice and in a spirit of impartiality. Addressing a like issue in a different context, the Supreme Judicial Court recognized that “in light of our own awareness that community values on the subject of permissible sexual conduct no longer are as monolithic” as prior precedent had suggested, it could no longer apply the statutory prohibition of G. L. c. 272, § 35, against “unnatural and lascivious” acts to private, consensual adult sexual conduct. Commonwealth v. Balthazar, 366 Mass. 298 , 302 (1974). [Note 4] There are no comprehensive legal rules to regulate consensual sexual behavior, and there are no commonly accepted customs or values that determine parameters for the intensely private and widely diverse forms of such behavior. [Note 5] In the absence of a consensus of community values or customs defining normal consensual sexual conduct, a jury or judge cannot be expected to resolve a claim that certain consensual sexual conduct is undertaken without reasonable care. (Op. at 520-521)

Accordingly, at least in the Commonwealth of Massachusetts, a broken dick case (or any other sex injury case) is going to turn on whether the defendant’s conduct was wanton or reckless, not just negligent.

In the case at hand, I think the injury happened in New York, so who knows what the law is there. I didn’t find any broken dick cases in New York case law. Since Massachusetts is way more fucking awesome than New York, they would probably just follow Mass law on this one.

With respect to Bethany Benz, hopefully this incident will not have an impact on her reverse cowgirl, which I have heard from several people is incredible.

Yahshua, on behalf of all men, everywhere, who have ever lived or who ever will live — get well soon.

We’re all pulling for you.

Do you need more proof that religion is frigging stupid?

Now, if you want to keep kosher, you have to filter your New York City water, because there are microscopic crustaceans in the water. (source)

I fail to understand how Jews and Muslims can believe that an all powerful creator of heaven and earth gives a shit if you eat ham or chop off a piece of a baby boy’s dick — and christians think that the same omniscient and omnipotent dude cares if you jack off.

Free yourselves from this mindless mental slavery. Get this through your head: There is no god, and if there is, there’s no way he is this fucking petty… and on the off chance that he does exist, and he is really that small and petty, he does not deserve to be invited over for a beer, let alone worshipped.

Washington State comes down against online gambling

By J. DeVoy

Today, in a unanimous decision authored by Justice Tom Chambers, the Washington Supreme Court dealt a blow to online gambling.   Internet Community & Entertainment Corporation, doing business as Betcha.com (“Betcha”), has been under the scrutiny of the  Washington State Gambling Commission since shortly after its 2007 launch.  Now, the Supreme Court has ruled that Betcha’s services constitute bookmaking under RCW § 9.46.0213, and thus the site’s operations constitute “professional gambling” as defined by RCW § 9.46.0269(1).  The full opinion, Internet Community & Entertainment Corporation v. Washington State Gambling Commission, No. 82845-8, is available here.

This entire dispute centers around a unique characteristic of Betcha’s business model — losers are not required to pay their bets.  When signing up for an account at Betcha, subscribers were required to provide credit card information to provide sufficient funds to cover an offered bet.  For a fee, Betcha would post the bettor’s offer to its site.  If an offeror lost a bet, however, he or she had 72 hours to refuse to pay.  If the loser did not refuse to pay within that time, the money in his or her account would be transferred to the winner.  In order to keep serial losers from defaulting on bets, Betcha had an honor ranking, similar to eBay’s user feedback, which assessed how trustworthy other bettors were in paying for the bets they’ve made.  This honor ranking was determined based on the bettor’s repayment frequency, amount wagered, and number of bets made.

At the trial level, Betcha sought declaratory relief in the form of a court order finding that its site did not violate state gambling laws, as well as an injunction against the state’s prosecution of the site.  On cross motions for summary judgment, the trial court found that Betcha was engaged in gambling and bookmaking, that its activities constituted illegal “professional gambling,” it transmitted and received “gambling information,” and the site used “gambling records,” all of which are illegal.  The Court of Appeals, in a split decision, reversed the trial court.  By the Appeals Court’s logic, Betcha’s users had not gambled because they did not have an understanding that they would receive something of value for winning, as loser’s could back out of payment.  This created ambiguity as to whether Betcha was truly accepting bets as part of its business, and the Court of Appeals resolved this uncertainty in Betcha’s favor.

Today’s Supreme Court decision reverses that thinking in a few important regards.

First, Because Betcha was receiving fees for posting the bets – whether they were gambling wagers or not – the Supreme Court found that this constituted bookmaking under the RCW.  RCW § 9.46.0213 considers only the “opportunity to make a bet,” rather than whether the bet was paid or even a gambling bet upon which the loser is financially liable.  Even though bettors could back out of payment, Betcha still facilitated the making of bets on its website, and accepted fees for doing so.

Because this behavior constituted bookmaking, the court found that Betcha.com was engaged in “professional gambling” under RCW § 9.46.0269, and it did not have to reach the question of whether Betcha’s conduct was “gambling” under a broader definition.  Since Betcha’s actions were considered professional gambling, it was further held to have engaged in the transmission of gambling information, defined as “any wager made in the course of and any information intended to be used for professional gambling.” RCW § 9.46.0245.  Similarly, the Supreme Court concurred with the trial court’s finding that Betcha was in violation of the law for possessing gambling records in its business, which are defined as “any record, receipt, ticket, certificate, token, slip or notation given, made, used or intended to be used in connection with professional gambling.” RCW § 9.46.0253.

This first raises a surprisingly profound question: When is a bet a bet?  In Washington, apparently any wager is, which is a dangerous precedent that may be used by zealous District Attorneys to criminalize poker nights in smokey basements, or a justification for more insidious rights violations, such as home searches premised on ill-defined betting.  Depending on how liberally fees for the opportunity to place a bet are defined, you may want to tell your friends to leave the beer and pretzels at home the next time they come over for a game of cards.

Second, this throws online gambling back a step.  Betcha’s premise of not being required to pay for losing a bet – but possibly being shamed off the site for backing out of too many of them – was supposed to circumnavigate exactly these types of challenges.  Generally, money must be at stake for gambling to occur.  But now, as seen in Washington, the ambit of anti-gambling laws goes farther than the guaranteed transfer of money from one consenting party to another in a game of chance, but extends to all wagers, whatever the consideration.  Betcha’s situation is somewhat unique in that it required a fee for the bet to be placed, which is how it presumably covered its operating costs.  Still, criminalizing a fee needed to facilitate the non-monetary wagers of willing parties seems silly, and beyond the ambit of what gambling laws are supposed to be.

Coming back core principles of free expression and economic liberty, this is a violation of both in a way Betcha specifically tried to avoid.  While not all of its bets were gambling wagers that required a loser to pay, Betcha provided a service that allowed individuals to pass the time and perhaps expand one another’s knowledge with information germane to the wager’s subject, whether it was a political race, the next day’s weather, or some broader event.  Second, this is an interference with Betcha’s founders’ ability to earn a living through electronic commerce and to express themselves in a way that doesn’t resemble traditional gambling.  This raises serious concerns for membership organizations, message boards or other pay services where wagers are made even without the owners’ encouragement, as they too may be culpable for professional gambling.

This case was ultimately one of statutory interpretation, rather than a clash of morality.  Such a ruling is heartening to the moral warriors who seek to limit arbitrarily defined vices while ignoring their own glaring shortcomings, and may be promoted in other states as a means to stop or slow the spread of gaming.  For that reason, especially close attention should be paid to any revisions to state gaming laws or cases on the topic in the foreseeable future.

Ewwwww…..

Incredibly, this did not happen in Florida!

Thank you Brent Newton – American Legal Education is Worthless

By Randazza and DeVoy

Brent Newton, an Adjunct Professor at Georgetown, wrote a law review article about how professors writing law review articles is a waste of time. The article, Preaching What They Don’t Practice: Why Law Faculties’ Preoccupation with Impractical Scholarship and Devaluation of Practical Competencies Obstruct Reform in the Legal Academy, is actually worth reading … which is rather unusual for a law review article.

my thesis is that it will not be possible to implement such proposed curricular and pedagogical reforms if law schools continue their trend of primarily hiring and promoting tenure-track faculty members whose primary mission is to produce theoretical, increasingly interdisciplinary scholarship for law reviews rather than prepare students to practice law. Such “impractical scholars,” because they have little or no experience in the legal profession and further because they have been hired primarily to write law review articles rather than primarily to teach, lack the skill set necessary to teach students how to become competent, ethical practitioners. (source)

That is a very polite and professional way of saying what I have been saying since the inception of this blog — law professors are a bunch of worthless gasbags running a ponzi scheme, and most (not all) should be dragged out into the street and have beehives shoved up their asses for the part they play in financially ruining thousands of kids a year — to say nothing for the destruction they help wreak upon the legal profession, which in turn leaves thousands of desperate lawyers who pull every manner of legal stunt to simply stay alive. Parasites breeding parasites. That is what most law professors are.

But back to Newton. His article is absolute blasphemy in the legal academy, and probably means that he will forever remain the sneered-at adjunct. I got that a lot when I was one — oh, you’re just an adjunct, not a professor.

Newton notes that adjuncts are the lowest of the low:

At the bottom of the order of law faculty are adjunct professors, who generally are treated like nobodies by the regular law faculty.

I am happy to report that this was not my experience when I was an adjunct at Barry. In fact, I was treated very well there by all my colleagues. But, once off that campus, especially when exchanging ideas with other “law professors” and particularly in the blawgosphere, that was the refuge they would run to during a vicious pwning.

Like the Indian caste system, a comparison Newton makes in his article, the academy delegates the “dirty work” to an immobile class of practitioners, adjuncts and other non-tenure track faculty.  Beyond schools’ Legal Research and Writing (LRW) curriculum, clinical programs remain the last bastion of useful hands-on experience in meeting deadlines, solving new problems and managing client expectations.

Despite providing some of the most value-added experiences most law students will have during their legal education, clinical professors lack the ability to attain tenure, or even full the same privileges and status of full tenure track faculty.  Even considering the value provided by clinical coursework, they remain optional at all but a few schools like Washington & Lee, which have adopted an intense practical curriculum.  This isn’t merely harmful for new lawyers, but potentially disastrous for their clients.

So let’s see what Newton shares some data with us about the experience levels of these “law professors” who sneer at adjuncts.

The amount of prior practical experience differed significantly by tier. For instance, for the schools in tier one, the median was 1 year and the mean was 1.92 years; 46.8% of the entry-level tenure-track professors hired by these schools since 2000 had no prior practical experience. Conversely, for the schools in tier four, the median was 6 years and the mean was 7.58 years; 85.8% of those professors had some amount of prior practical experience.

In other words, the higher ranked the school, the more worthless the professors — the less they actually know about the job they are teaching you to do. Next time someone makes fun of you for attending a TTT, maybe you should wipe the floor with them with the knowledge your TTT law professor gave you, while your top tier counterparts were learning from someone who was hired most likely on the basis of their skin color, gender, and how they managed to whine about both in law review articles.

Also contributing to this worthlessness is the over-academization of the legal academy.  A top J.D. isn’t enough anymore, and often needs to be supplemented with a Ph.D. – if not supplanted by one.

In the late 1980s, five percent of full-time law professors had Ph.D.s.  By the end of the twentieth century, 10.4 percent of new tenure-track hires had Ph.D’s (13.4% at “top 25 schools”). Just a decade later, by 2010, that percentage had grown significantly, particularly at the highly ranked schools. My own study of a representative sample of entry-level tenure-track professors hired between 2000-09 (excluding clinicians, LRW professors, and other “practical” faculty) revealed that 18.9 percent possessed Ph.D.’s in addition to or in lieu of a law degree. Professors with Ph.D.’s constituted 35.5 percent of such tenure-track faculty members hired since 2000 by the first ten schools in tier one of the USNWR rankings.

While a Ph.D. is an impressive investment of time – quality varies widely outside of the top programs in each field, and whether it’s worthwhile depends on individual levels of funding – it doesn’t help create better lawyers.  It doesn’t necessarily breed better faculty, either.  Just look who you get when you hire like that! (But, in all fairness, the best law professor I ever had didn’t have a JD at all — he had a Ph.D. only!)

For example, teaching law students about game theory is all well and good within the ivory tower, but it doesn’t help them, and may even hurt, if it’s done at the expense of skills like writing and critical thinking.  Those skills matter a hell of a lot more than being able to properly graph the probabilities frontier of settlement negotiations in a $35,000 case.  Try explaining that bill to your client.

Newton realizes that this characteristic, along with the homogeneity of the same ten schools producing most of the nation’s legal academy, creates a certain feedback loop.  Because only the top students from top schools are hired into the academy, judged by their experience in snagging elite clerkships and publishing in the highest ranked law reviews, there is scant room for practical experience.  Yet the system persists for a few reasons.  The first is economic: Fundamentally exclusive credentials, such as Court of Appeals or Supreme Court clerkships, are held by a vanishingly small group, and thus greatly valued by the academy.  The second is a matter of value justification, as faculty members who went to Harvard and published in the Harvard Law Review feel their escutcheon would be tarnished by hiring someone with lesser credentials, the legal academy’s equivalent to identifying with lepers as equals.

Even in the publishing of Newton’s article, which is forthcoming in the University of South Carolina Law Review, the class bias of legal academia is on display.  Like law schools, even law reviews are ranked.  Though the South Carolina Law Review outperforms the school’s US News ranking, it’s blasphemy for a piece as important as Newton’s not to be in the highest ranked publication it could have conceivably been in.  This is especially true as the traditional walk-of-the-penguins path from earning good grades in law school to being an associate at a well-heeled firm vanishes for many students, leaving them to rely on skills they never developed or had any idea they’d need.  But, surely, whatever critical theory shit about how federal land use law displaces quadriplegic Inuit lesbians from their native homes that took the place of Newton’s article in a more visible journal will be important – essential, really – in the history of legal thought.

We must thank Newton for making this point for all the reasons stated above.  Based on my experience in practice, where you go to school doesn’t mean much except what firms interviewed you at OCI.  While every school produces bad lawyers, the upper crust of legal education has no monopoly on creating good ones.

More importantly, the lack of vital skills afflicting new lawyers needs to be brought to all current and prospective students’ attention so they can take clinical coursework and ameliorate the gaps in their training.  Knowing that such deficiencies exist is the first battle in the war of legal education.  Too many law students assume that going to law school and passing the bar exam will be sufficient to practice, and the schools’ professors and administrators – themselves woefully inexperienced – do not do enough to correct this misconception.

Finally, this is an issue that affects all of us.  Tenured faculty live a life of symposia and leisurely thinking on the backs of the serfs, much like the Roman elites who drank wine all day and had orgies at night while the masses toiled and the empire crumbled.  Although individual students make the promise to pay $40,000 each year to subsidize this nonsense, and at 8.5% interest, we’re all paying for it now that student lending has become a government function — both for the principal and the inevitable default on junk loans taken out for nothing of value.

This should be the beginning of a slow clap for Brent Newton, and his gumption to write a piece that unites various threads that have been the zeitgeist of practitioners for years.  That the legal academy does not care to hear it is their own fault, and done at its peril.