Archive for March, 2009


March 17, 2009

Two Pepperdine law professors are featured in a new Time Magazine article offering a new way of thinking about the gay marriage issue.

Check it out HERE.


March 11, 2009

TPM flags a story from Market Watch:

Citigroup Inc. lowered its rating on Wal-Mart Stores Inc. to hold from buy on Tuesday, citing concern that legislation intended to make it easier for employees to unionize would raise the retail giant’s labor costs and hurt its competitiveness.

To which my only response is: there are people who still think Citigroup knows something about finance?

I mean, it seems to me that if one of these companies is in a position to pass financial judgment on the other, Wal-Mart is the one wearing the robes.  They boom in good times and bad.  Citigroup would have gone into bankruptcy months ago if not for taxpayer bailouts; they would go into bankruptcy tomorrow if we weren’t also propping up AIG.  Who’s the one with the good business sense, here?

(TPM also flags this WaPo story about Citibank’s long history of repeatedly going bankrupt.)

Knights Who Say…

March 10, 2009

FDIC chief Sheila Bair catches up with me, Bernanke, Yglesias, Paulson, Spitzer, Klein, Volcker, and Simon Johnson:

WASHINGTON (Reuters) – Congress should consider if it is time to step in and stop American banks from becoming too large to fail, the head of the Federal Deposit Insurance Corp. told “60 Minutes” in an interview to be broadcast on Sunday.

Welcome to the round table, Lady Sheila.

Fun With Prop 8

March 6, 2009

Well, DeJon explained my plight perfectly in a previous comment, but since I theoretically have a front row seat to this interesting matter, I should give it a shot.

My depth of research includes: (1) listening to my Contracts professor / Constitutional law scholar talk about it for thirty minutes yesterday morning, and (2) a little bit of Google. Oh, and catching two minutes of Dean Starr on CNN on a fellow student’s laptop between classes.

So here goes:

California’s Proposition 8 passed last November 52% to 48%. It was, in effect, an amendment to the state constitution, effectively reversing a California Supreme Court decision that it was unconstitutional to deny marriage licenses to same-sex couples.

[Note: It is my understanding that “domestic” partners in California have the same legal rights as “married” partners; thus, the practical effect of the Prop 8 dance is whether or not same-sex couples will be allowed to use the legal word “marriage” to define their relationship.]

Now, it appears that the chief argument before the California Supremes is whether or not California voters have a right to amend the constitution in a way that takes away previously-held rights. No, that’s not correct. It seems obvious that the state constitution “can” be amended to take away previously-held rights, but there appears to be a legal difference between “revising” and “amending” the constitution. A revision has been defined through a litany of case law as something that is a far-reaching change in the basic structure of government: constitutional revisions require approval by the state legislature, while an amendment does not.

Prop 8 speaks to rights, not government structure. Thus, amendment.

The only real counterargument to the revision/amendment debate is, Well, who says it has to speak to government structure? The only straight answer is case law. Therefore, the only judicial alternative to accepting Starr’s argument is to shoot out on its own and create a definition that just isn’t there. Wouldn’t be the first time, but doesn’t seem to be such a great idea either.

So, bottom line: our social contract theory of government is that the people determine the rules. And the people of California have spoken. They have properly amended the state constitution to remove the right of same-sex couples to use the legal word “marriage” to define their relationship. I think that is a sad outcome – one that I voted against. However, that’s the law.

Now, here is the good news. The people of California aren’t through speaking. My professor believes, as do I, that it is just a matter of time (and probably not that much of it) before the people will speak again. And Dean Starr’s argument will be quite useful then.

I would love it when that day comes if he would go to San Francisco and offer the same argument for the opposite side. That would surprise me a LOT, but I wouldn’t completely put it past him.

What’s up, Dean?

March 6, 2009

Hey, Al.  How ’bout a post explaining the challenge to Prop 8 in California?  It sounds like your dean made a very novel and troubling argument on behalf of the proposition: that voters can overrule rights guaranteed by the state constitution with a simple majority vote.

I haven’t paid just incredibly close attention to it, so maybe I’ve gotten the wrong impression.  Or maybe it was misreported.  What gives?

Correcting the Record on IVF

March 5, 2009

Everyone has an opinion about the mother of the octuplets born in California in January.  I’ve been sitting back watching the story unfold, first with interest, then horror, as the media, obviously unschooled in the most rudimentary facts about human reproduction and in vitro fertilization (IVF), has propagated the most shocking sort of ignorance about infertility treatment.  When I heard about the bill that has been proposed in Georgia (more information can be found here and here) based on that ignorance, I said, enough.  I don’t have a media platform, but I have a blog and I’m going to use it.   Settle in, this is a tad long.

First, let’s cover the basics about IVF, because there seems to be a lot of mystery about what it is.   A woman undergoing IVF is injected with hormones in order to stimulate the ovaries to produce several eggs.  The eggs are retrieved surgically and are then taken to a lab, where they are mixed with the husband’s or donor’s sperm to produce embryos that are then matured for three to five days and then transferred (placed) into the woman’s uterus via a catheter.   (Even that description is a simplification, but it’s more than Oprah knows about the process, I guarantee you.  She apparently thinks that eggs alone can produce babies).

Let’s correct the most annoying and common of the media mistakes here — a doctor cannot implant an embryo in a woman’s uterus. Embryos are placed there in a process called a transfer, and whether or not they implant (and they often don’t) is up to nature.   Doctors can try to create a hospitable environment for an embryo by checking and trying to enhance the thickness of the uterine lining before the transfer and prescribing progesterone after the transfer, but implantation cannot be controlled.  If it could, IVF would be a sure thing, and it isn’t — as a quick look at success rates at even the best clinics will tell you.  Success rates for any given transfer generally range from about 40 to 50%.

There is attrition at each step of the IVF process I described above, and some percentage of IVF cycles never make it to transfer.  Different women (and even the same woman in different cycles!) respond differently to the hormones; a few will produce 30 or more eggs in a cycle, a few don’t respond at all (if this happens, the protocol is changed for the next cycle to produce a better result).  And everything in between.  Generally, not all of the eggs retrieved in a cycle are any good (viable).  Even eggs that look viable may not fertilize in the lab.   Even eggs that fertilize may turn out to be crappy embryos that don’t meet the criteria for transfer and have no chance of implanting.  (Embryos are graded on their quality, i.e. their chances of survival, and the best ones are selected for transfer).  So even if you produce, say, 20 eggs, you may only end up with one or two good embryos and be lucky to get any at all.

This is why the Georgia bill is so outrageous, as it would mandate that only two eggs could be fertilized per cycle — meaning that only two eggs could be placed in the petri dish (or whatever they use) with the sperm, vastly reducing the chances of producing even one viable embryo in a given cycle.  It would also prohibit freezing embryos for later transfer.  Thus, women trying to conceive would have to undergo many, many more invasive stimulation cycles in order to produce an embryo that would give them a real chance at pregnancy.  At $10,000-15,000 a cycle.  Whoever wrote this bill obviously has never had a family member or friend who has had to undergo IVF to conceive her children.

Nominally, the bill is supposed to be a response to the octuplets birth, but when you look closely at the facts, it’s obvious that it is both a vastly overinclusive and underinclusive response.  Here’s why:

High-order multiples (triplets or more) very rarely result from IVF. There are several reasons for this.  One is that most reproductive endocrinologists follow their specialty’s guidelines and transfer (not implant!) no more than two embryos at a time in women younger than 35 and no more than three in women over 35.  However, the reason that the guideline does not, and should not, have the force of law is that not all embryos, or uteri, are created equal.  If you have four embryos, none of which look all that hot, for a woman who has had failed IVF cycles in the past, you might transfer all four because the odds of even one of them making it are middling at best, and the odds of all four implanting are one in a million.  Some doctors won’t take even this tiny risk, but I can’t say that it’s reckless to do so for a woman who is on her last IVF cycle or is rapidly approaching 40.   Transferring all four in such a case would give her the best odds of a pregnancy with very little risk of multiples.   This is just one example — there are many factors that affect an individual patient’s situation, and the best person to evaluate how to provide the best treatment is that patient’s own doctor.

Regulating IVF in response to the octuplets becomes even more absurd once you understand that high-order multiples much more commonly result from the use of injectable gonadotropins combined with insemination or sex.  These are the same injectable medications used to stimulate egg production for IVF.  They are also used in women who have trouble ovulating but who don’t need IVF to conceive.  It is very important that injectables be used under the close supervision and monitoring of a fertility doctor, and that if more than a certain number of eggs are produced, the cycle be cancelled.  The goal is always to produce just one or at most two eggs, but since responses to the medication are so variable, sometimes that’s not possible.

Everyone has seen that show Jon & Kate Plus 8.  You know how Kate most likely got pregnant with 6 babies at once?   (I don’t know this for a fact because they’ve never said on the show, but this is the most likely scenario).  They used injectables.  A large number of eggs were produced.  The doctor cancelled the cycle and gave them strict orders not to have sex.  They did anyway, and ta-da!  Six babies.  Which is not to criticize them, because they paid a few thousand dollars for a cycle and wanted a chance at a pregnancy, and even with a large number of eggs the chances of a high-order multiples pregnancy are very, very slim.  (To give some context, I have a friend who did an injectables cycle, produced four eggs, and didn’t get pregnant at all — that’s the more common outcome).  Taking the risk they took was stupid, and I think they acknowledge that, which is why they’ve never revealed exactly what happened on the show.  But my point is that it had nothing to do with IVF at all.  In fact, when I heard this octuplets story, I suspected injectables-plus-sex and was highly skeptical that IVF could have produced this outcome, especially via a frozen embryo transfer.  Frozen embryo transfers are less likely to be successful than fresh cycles, in part because not all embryos survive the thaw and in part because even the ones that do have a lower chance of implanting.

So assuming that the octuplet mom’s story about the conception is true — that six previously-frozen embryos were transferred into her uterus and that all implanted and two of them split to produce identical twins (which does happen sometimes) — it is truly a one in a million occurrence.  Yes, the fact that her doctor (a disreputable quack) transferred six embryos into a 32-year-old woman who had had five previous successful pregnancies through IVF was incredibly reckless, and he should have his license revoked, though even he never imagined or had reason to imagine that octuplets was a possible outcome.  My point is, it’s not as though this kind of thing happens every day, especially not through IVF.  In fact, the percentage of high-order multiples (mostly triplets, anything more than that is quite rare indeed) has declined in the past several years precisely because fertility doctors have made such a vigorous effort to reduce the number of multiple births and because the technology has improved to the point where single-embryo transfers are almost as effective as multiple-embryo transfers in producing pregnancies.

I’m not here to debate whether a single woman of limited means and dubious mental health should be having a lot of children and raising them on the public dole — we’ve pretty much said no to regulating who can reproduce in this country because of a little thing called the Constitution.  There are millions of people out there who you or I might think shouldn’t become parents who do so anyway, and we all live with it in order to maintain our most basic principles as a nation.  What I’m saying is that somewhere between one in 10 and one in 6 couples have difficulty conceiving, and that all those thousands of hopeful parents-to-be who would not be able to have children but for IVF shouldn’t be punished for one doctor’s reckless decision when the vast majority of the doctors out there are practicing their specialty responsibly.

I hope this proposed legislation gets nipped in the bud quickly and is not replicated in other states. However, hearing the public discourse about these topics doesn’t give me much hope.  The extreme ignorance about IVF that is behind such legislation can only be countered with knowledge.  This isn’t much, but it’s my contribution.

Generational Shift

March 4, 2009

I don’t read Maureen Dowd.  I don’t read Sen. John McCain’s Twitter feed.  (Or anybody else’s, for that matter.)  But their recent literary output seems to provide a terrific, concentrated example of the difficult shift from old media to new.

McCain snarked on Twitter about some silly-sounding government spending.  Dowd, for whom the acid remark is an end instead of a means, loved it and repeated it.  Neither of them, at any time, bothered to look into the projects they’re snarking.  Not even a quick Google.  Why?  Probably because neither of them has quite gotten used to the existence of Google.  It still doesn’t occur to them that, before shouting something into their megaphones, they should Google it; that there’s a good chance that with just a couple of minutes’ effort, they could avoid revealing their ignorance.

For example, at first glance, “Irritable Bowel Syndrome” is hilarious.  It’s also a real, actual illness that causes real, actual people to suffer.  If you were a sitting U.S. senator or a writer for the newspaper of record, and you saw research money for it in a federal budget, it would probably be worth 5 minutes on Google to find out what it is before you made fun of it.

McCain and Dowd (and yours truly) grew up in a world where if some obscure thing sounded silly, you could just make fun of it and ridicule anybody who said something should be done about it.  Virtually nobody who heard you was going to know any more about it than you did.  That’s no longer the case.  Virtually everybody can know everything, now.  To Yglesias’s generation and everyone younger, fact-checking with Google is reflexive.  McCain and Dowd haven’t adjusted to that reality.

So, if you’re a senator or a major media star, before you bloviate or ridicule, I’d suggest you check your facts.  Your readers are going to.  If you don’t know what the heck you’re talking about, they’re going to know it.  Instantly.

Talk of the Town

March 3, 2009

A snippet of voter feedback caught my eye, today.

Our stars are Dr. Sharon Poczatek and an anonymous lawyer.  Aside from their blinding ignorance of the American income tax system, which is what the linked article is about, this piqued me:

A 63-year-old attorney based in Lafayette, La., who asked not to be named, told that she plans to cut back on her business to get her annual income under the quarter million mark should the Obama tax plan be passed by Congress and become law.  …

“We are going to try to figure out how to make our income $249,999.00,” she said.

The attorney says that in order to decrease her income she’ll have to let go of clients, some of whom she’s been counseling for more than a decade.

“This means I’ll have to tell some of my clients we can’t help them and being more selective in general about who we help,” she said. “I hate to do it.”  …

Dr. Sharon Poczatek, who runs her own dental practice in Boulder, Colo., said that she too is trying to figure out ways to get out of paying the taxes proposed in Obama’s plan.

“I’ve put thought into how to get under $250,000,” said Poczatek. “It would mean working fewer days which means having fewer employees, seeing fewer patients and taking time off.”

Hey, kids, here’s an idea.  Instead of reducing your income by taking more vacations and reducing the amount of dental care available in Boulder, CO, or setting a bunch of retirees adrift to find a new attorney in Lafayette, LA, why don’t you just f*$#ing charge them less! And instead of laying off workers as a way of reducing your income, why don’t you just f*$#ing pay THEM more! More for them = less for you.  See how that works?

But no.  These simple, gobsmackingly obvious solutions never enter their minds.  Not even a teeny tiny glimmer of a foreshadowing of a hint of them, way, way off in the distance.  How f*$#ing self-absorbed does a person have to be?

It’s a pixel-perfect picture of what’s wrong with the people who own or run 90% of our economy.  If something is going to cost them a quarter, by God it’s going to cost somebody else that much or more.  The notion of just taking less profit (but remaining profitable) when times are tough, rather than laying off a bunch of people, is utterly alien to them: incomprehensible; inconceivable; beyond the horizon of their awareness; just completely off the map.

What is wrong with you people?!

Is you is, or is you ain’t my constitchency?

March 2, 2009

Poor Rush.  He must see somebody new every morning when he looks at himself in the mirror.  Either he’s the beating heart and rapier mind of conservatism — the sine qua non; bigger than Reagan, even — or he’s an incendiary boob with an ugly show, who’s burning conservatism to the waterline.

And that’s just if you ask conservatives.

In fact, you can get that full range of opinions from a single conservative on consecutive days.  I’ve lost track of how many elected Republicans and other conservative luminaries have had to cut and run from Rush in the past month.  One day they criticize him in very harsh terms; the next day they apologize and fawn over him.

The latest lamb restored to the ninety-and-nine is the RNC’s recently elected chairman, Michael Steele.  Saturday night, he said, “Rush Limbaugh is an entertainer. Rush Limbaugh — his whole thing is entertainment. He has this incendiary — yes, it’s ugly.”  Today, he said, “I went back at that tape and I realized words that I said weren’t what I was thinking.  It was one of those things where I thinking [sic] I was saying one thing, and it came out differently . . . He brings a very important message to the American people to wake up and pay attention to what the administration is doing.”

In Jonathan Strange & Mr. Norrell, there’s a brief storyline about, well, the madness of King George, which would come and go at random.  His oldest son basically wanted him either killed or cured.  The narrator adds wryly, “It must be difficult to wake up every morning not knowing if you are the king of England.”  Rush knows the feeling.

The larger issue that all these apologized-for criticisms are part of is American conservatism’s and the Republican Party’s ongoing efforts to figure out where they go from here.  Should they purge, purify and come out the 200-proof essence of right-wing conservatism?  (A bold, fresh piece of ideology, one might say.)  Or should they re-think, re-tool, and come out with a more moderate conservatism that might have a chance of appealing to more than 30% of the electorate?

Rush, Bobby Jindal, Sarah Palin, and, increasingly, Newt Gingrich argue for purifying.  Eric Cantor, who fancies himself a latter-day Newt, agrees.

David Brooks, David Frum, Rod Dreher, and, unexpectedly, Gov. Jon Huntsman of Utah argue for diversifying.

George Will, Mitt Romney, John McCain, and many others blow with the prevailing winds, shifting from moment to moment.

It’s already an ugly fight, and it’s going to get uglier before it gets better.

Get Irony Much?

March 1, 2009

Justice Antonin Scalia has been a thoroughgoing advocate for the Bush-Cheney theory of absolute executive authority when it comes to the treatment of detainees in the “War on Terror.”  He even got into a bit of hot water for expressing his views in a public forum when cases on the subject were pending before the Supreme Court.

On Thursday, in a blistering dissent from a court decision not to review a public corruption case, Scalia said: “Bad men, like good men, are entitled to be tried and sentenced in accordance with law.”

Ummm . . . hello?  Presumably, Scalia believes President Bush, in his absolute authority over his detainees, declared them not to be “men.”

Also, according to a WaPo poll, GOP voters have suddenly discovered they’re worried about deficits: “74 percent of Republicans in the new poll expressed grave worry about the deficit, 29 points higher than in December when George W. Bush held the reins.”

h/t Scott Horton