Saturday, August 30, 2008

Tell Me a Story

August 30, 2008, 8:30 a.m.

Currently Most Popular Blog Entries

"Random Thoughts on Law School Rankings," April 29, 2008.
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"Ted, TED, Michelle and City Owned Hotels," August 26, 2008.
"Earthpark, Editorials and Beating Dead Horses," August 15, 2008.
"UI Sexual Assault Update" is now embodied in, and being updated as, a Web page, "University of Iowa Sexual Assault Controversy -- 2007-08," July 19-present; although the original blog entry (July 19-August 9) has not been removed,"UI Sexual Assault Update," July 19-August 9. Both remain among "most popular."
"Police Accidental Shootings -- Of Themselves," May 9, 2008.

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The Stories Project

This morning's Press-Citizen carries three editorial comments about the proposed Coralville "Stories Project" -- from the paper's Editorial Board, Josh Schamberger (President, Iowa City/Coralville Convention and Visitors Bureau and Stories creative catalyst -- with Bruce Wheaton), and yours truly, some of which is provided below.

In January of 2006 I wrote, in one of a couple dozen commentaries regarding the proposed indoor rain forest project (see generally, my Earthpark Web site), a sample listing of what I thought to be the desirable-to-essential qualities of community attractions that work, including:

Community-based. Successful ventures grow bottom up, like Omaha's zoo, the Englert theater renovation, and Dubuque's "Envision 2010," rather than being imposed top down like the rain forest.
Nicholas Johnson, "Time to Learn from What Works," Iowa City Press-Citizen, January 20, 2006.

Three months later I got wind of Josh Schamberger's proposal to do precisely that -- bring together some 21 representative local folks to consider the options for what to do with the land no longer to be occupied by the rain forest. (See, e.g., Jennifer Lickteig, "Coralville Site Panel Has 2 UI Students," The Daily Iowan, April 26, 2006). Naturally I gave him a call, praised his proposed procedure, offered to help, and referred to his "leadership" on the Earthpark Web site. (As he continues to say today, in concluding his column, "We invite all to dream with us and to help to check the facts.")

Now, a reasonable two years later, this local group has sifted through some options and settled on what has come to be called "The Stories Project." For some descriptions, see, e.g., the The Stories Project at Iowa River Landing" Web site; Iowa City Area Chamber of Commerce, "The Stories Project Unveiled," June 6, 2008; Gregg Hennigan, "Major award, interactive holograms part of Coralville project unveiled today," The Gazette Online, June 5, 2008, 4:03 p.m.

(On the other hand, for the balance of a truly critical and skeptical view of the idea, as only State29 could present it, see State29, "Pulp Fiction: The Stories Project Scam In Coralville," June 6, 2008, and the appended comments from his readers. State29 retired from the blogosphere earlier this year.)

There is a significant amount of agreement among this morning's three pieces, along with some differences: (1) Stories is not an idea to be dismissed out of hand, but (2) at this point in time it still has many challenges, questions and potential concerns that will need to be addressed and resolved before it can go ahead. The differences tend to relate to the nature and seriousness of those concerns.

When I was asked to write an op ed on the subject I had assumed I would present some of the cautions about attractions that I tend to have as a result of studying, first, the Earthpark rain forest proposal, then attractions generally, and finally economic development generally. Josh would, I assumed, present the strongest case for Stories -- because he best knows it, it wasn't a part of my assignment, and it's really kind of important that the papers' readers hear the story of Stories.

Instead, the Schamberger-Wheaton piece ended up being primarily a critique of my own column. No problem. That's useful -- and fun. But it left major hole in the content of what was a significant commitment of newspaper space to Stories -- namely, what is this project anyway? So that is why, among other reasons, I provide the links, above, if you'd like to find out more about what Schamberger's local group, and its national consultants, have been doing over the last two years.

Also missing from this morning's three pieces, given the nature of the Schamberger-Wheaton column, is the response of sorts I felt was necessary to what they'd written. If we're to have a debate, and it turns out to be over my concerns rather than their proposal, then let's have a debate.

Accordingly, in the column I submitted I prepared and added a brief response. Apparently -- presumably in large measure given the excessive amount of space they were already devoting to the subject -- that response was removed from my submission.

So I'll start by reproducing it here, as submitted:

Unfortunately, Josh Schamberger fails to provide a case for the Stories Project. But since his defensive rejection of my concerns reflect some misunderstandings, a recap may be useful.

• Having proposed we become “a writing community,” clearly I’m not “opposed” to the Stories Project.

• The threshold problem, as explained: “It’s hard to be ‘for’ or ‘against’ a thing not knowing what the ‘thing’ is.”

• Next: It’s not that they don’t “yet” have money for either construction or operations. It’s that they’ve failed to, as the sub-head put it, “Start with the money,” including major local contributions. In the cited example (Atlanta aquarium) a $200 million local gift.

• It’s not that the “relationships between education, entertainment and tourism present problems.” Of course they can be, and are, sometimes combined. It’s that a single, focused purpose seems to be helpful. And that in spite of the Herbert Hoover site’s mix of education and entertainment the pure entertainment of Adventureland produces 10 times Hoover’s attendance.

• Schamberger’s examples are wildly inappropriate. The Newseum is (a) in Washington, D.C., (b) on Pennsylvania Avenue , (c) supported by the newspaper industry, (d) cost $400 million to build, and (e) gets national publicity as a radio and TV program venue. (As Walter Mondale might have said, “I know the Newseum. I am a friend of the Newseum. And believe me your Stories Project is no Newseum.”) And need I even start with his comparisons to Abraham Lincoln?

• That his attendance projections are “wildly optimistic” – perhaps by ten-fold – is not my “hunch.” The formula was recently confirmed by experts’ conclusion Denver’s economic boost from the Convention was closer to $16 million than consultants’ projections of $160 million.
Obviously, I urge you to read the Schamberger-Wheaton column that prompted this effort on my part to have the Press-Citizen carry these clarifications. Out of both the a respect for this blog's readers, and the column's authors, I will not reproduce it here, but this link will take you to it quickly: Josh Schamberger and Bruce Wheaton, "'Stories' Invites the Community to Dream With Us," Iowa City Press-Citizen, August 30, 2008, p. A15.

I will, however, reproduce my own column, as submitted. (It is also available from the Press-Citizen's online site as, Nicholas Johnson, "Flying Video Screens, Stories and Tourism," Iowa City Press-Citizen, August 30, 2008, p. A15. And don't forget, Editorial, "'Stories Project' Still Must Tell its Own Story," Iowa City Press-Citizen, August 30, 2008, p. A14.)

Flying Video Screens, Stories and Tourism
Nicholas Johnson


Everybody loves a story.

But will they love “The Stories Project”?

The Press-Citizen asked my opinion.

When traveling abroad it’s a matter of pride when someone, knowing I’m from Iowa City, identifies it with our International Writing Program.

Years ago, as a school board member, I wrote how we could become the nation’s preeminent “writing district,” and later proposed we declare Iowa City “a writing community.”

So an Iowa City monument to stories is certainly more appealing than “a rain forest in a cornfield” -- the earlier proposal for Coralville.

But good ideas are a dime a dozen. The challenge? Finding the next dime. Something rain forest promoters never found.

Whether Stories makes sense requires the same analysis to which I subjected the rain forest. www.nicholasjohnson.org/politics/IaChild/.

In fairness, Stories’ promoters acknowledge their details aren’t nailed down – “‘flying video screens’ and holographic projections,” school, bookstore, restaurant? But it’s hard to be “for” or “against” a thing not knowing what the “thing” is – the rain forest’s persistent problem. (“It’s a floor wax, it’s a desert topping; it’s whatever they want it to be.”)

So all I can offer is an all-purpose sampling of issues for any attraction.


Start with the money. Local donors are essential. Don’t periodically scale back an unfunded dream. Atlanta’s “world’s largest” (8-million-gallon) aquarium started with a $200 million local gift. Omaha’s Zoo finances locally before building. Years-long fundraising, or debt financing, are the surest paths to failure. [Editorial cartoon credit: Bob Patton, Iowa City Press-Citizen, posted September 2, 2008.]

Construction and start-up funds are easiest. The biggest financial challenge is operating costs – five years later. The rain forest would have required every Iowan, from new-born babe to the terminally ill, to pay entrance fees every two years.

Single focus. Stories started with land from a disappearing rain forest, and a desire to promote Coralville businesses’ income from tourism – not love of literature. (“Not that there’s anything wrong with that.”) It’s a mixed mission.

Americans favor entertainment over education – and by orders of magnitude. You want tourists? Offer entertainment – say, America’s largest waterslide park. You want education? Great, but don’t plan on riches.

The Herbert Hoover Presidential Library, Museum and birthplace in West Branch should be Iowa’s most popular site. It’s a presidential library – for Iowa’s only president. It’s an exit ramp away from a heavily traveled Interstate. It offers many resources and programs. It’s attendance? 55,000 a year. Disneyland? 14 million.

That’s typical for other educational sites: Old Capitol, Iowa Hall – and not all that much better for the Living History Farm , or the Coral Ridge Mall’s Children’s Museum. (Ten million shoppers a year walk by without entering). Comparable American sites are failing.

It helps to tie attractions to their locations – another reason for the rain forest’s failure, and Dubuque’s Mississippi River Museum’s success.

I admire Coralville’s progress. But are Iowa’s writing programs really associated in the world’s mind with “Coralville”?

Want alternatives? What better “River Landing” project than a trail through prairie, with educational markers about the Iowa River’s history and floodplains’ contribution to flood control? Something as old as the Devonian Gorge, and as current as yesterday’s newspaper – at a fraction of Stories’ cost. And already begun with the Coralville dam bridge displays.

Beware of enthusiasts’ and consultants’ projections of attendance.
Atlanta’s aquarium is in a thriving business and convention center. A federal government regional headquarters. A tourist destination. An airline hub. Fulton County has nearly 10 million souls. There are other major attractions within walking distance of the aquarium.

Coralville has no such advantages. It’s not a tourist destination with Miami’s beaches or Denver’s mountains.

Estimates of attractions’ attendance and economic contribution are notoriously inflated – often by ten-fold. Stories promoters’ estimate of 500,000 visitors annually is wildly optimistic.

Don’t confuse I-80’s 50,000 cars a day with 50,000 carloads of paying visitors. Forty miles east or west the numbers are about half that. Commuting residents are counted, but not likely to stop off on their way to work. Nor will sales people and truck drivers behind schedule – or even vacationing families late to grandma’s Thanksgiving dinner.
Could we find something to put inside a Stories Project building? Of course. If benefit-cost analyses justify, perhaps a state-funded University project free to visitors.

So what do I think?

Let’s, first, honestly address whether the mission is to promote literature, or to increase motel and restaurant income. Then precisely describe focus and details. Third, realistically project Stories’ attendance and decades-long operating costs. Finally, “show me the money” for construction.

Then ask me again.
__________
Nicholas Johnson teaches at the University of Iowa College of Law and blogs at FromDC2Iowa.blogspot.com. His latest book is Are We There Yet?- Reflections on Politics in America.


# # #


Josh Schamberger responded to this blog entry by email. Given the importance of the project to the community, the issues involved, and the fact that some may come to this blog entry for information about it -- not to mention a basic sense of fairness that I try to provide through these blog entries and readers' comments regarding them -- I sought and received his permission to reproduce that email here. I believe the points he raises could be answered by me, but "as a concession to the shortness of life" I'm putting aside further discussion of the Stories Project for awhile, and will leave you to imagine how I might have responded to what follows were I to have done so (my writing, that he quotes, in regular font, his comments in italics):


Also missing from this morning's three pieces, given the nature of the Schamberger-Wheaton column, is the response of sorts I felt was necessary to what they'd written. If we're to have a debate, and it turns out to be over my concerns rather than their proposal, then let's have a debate. Accordingly, in the column I submitted I prepared and added a brief response. Apparently -- presumably in large measure given the excessive amount of space they were already devoting to the subject -- that response was removed from my submission.

How were we to know this? How is it fair to paint us as those that omitted it. You should be more clear in directing this to Jeff and the PC. C’mon now.

So I'll start by reproducing it here, as submitted:

Unfortunately, Josh Schamberger fails to provide a case for the Stories Project. But since his defensive rejection of my concerns reflect some misunderstandings, a recap may be useful.

I’m not providing a case for building it, I am only trying to garner review and public feedback….consideration. Is this something worth moving forward on? I’m not selling anything, Nick.


• Having proposed we become “a writing community,” clearly I’m not “opposed” to the Stories Project.


• The threshold problem, as explained: “It’s hard to be ‘for’ or ‘against’ a thing not knowing what the ‘thing’ is.”

You really can’t get an idea for what this ‘thing’ is from the Vision Book and other material? If so, Nick, you are the only person who has read this material, seen the visuals, and economic data who can’t get a feel for what the ‘thing’ is. That’s the honest truth. I have 3 dozen community residents who took the time to review this ‘thing’ after the June 6 presentation and every one of them seemed to figure out the ‘thing’ whether they agreed or disagreed. This is a serious question, and one not meant to offend…did you actually read the Vision Book? Reason I ask is because I know you did not read the ConsultEcon report. I’ve only posted the 4-5 page executive summary online. The student you had doing your research did not ask for the full copy so I thought it was a little unfair to be commenting on attendance projections and comparables (or as you call them examples) without actually having read the full report.


• Next: It’s not that they don’t “yet” have money for either construction or operations. It’s that they’ve failed to, as the sub-head put it, “Start with the money,” including major local contributions. In the cited example (Atlanta aquarium) a $200 million local gift.

We are on the same page here and I think that came across clear in both columns. We are not really going to go much further until the homework is done to determine IF the money is there. Where do you see our comments differing from your recommendation? Unfortunately though, it does cost money to develop this to a point to where it can be properly analyzed, reviewed, studied. You agree, right? If not, how could we have done this differently?


• It’s not that the “relationships between education, entertainment and tourism present problems.” Of course they can be, and are, sometimes combined. It’s that a single, focused purpose seems to be helpful. And that in spite of the Herbert Hoover site’s mix of education and entertainment the pure entertainment of Adventureland produces 10 times Hoover’s attendance.

I can’t understand how you continue to use the Herbert Hoover Museum as a comparable here. Read the Vision Book again, learn more about BRC, VISIT the Abraham Lincoln Presidential Museum in Springfield to get a first hand feel/look for BRC’s work. And YES, I am drinking the kool-aid that makes me believe that Mark Twain, Alice in Wonderland, Harry Potter, Stephen King, [insert your personal/favorite storyteller or book character here], combined, could be just as attractable as Abraham Lincoln. Seriously, I will personally drive you over there and we can have a very friendly and spirited conversation over and back.


• Schamberger’s examples are wildly inappropriate. The Newseum is (a) in Washington, D.C., (b) on Pennsylvania Avenue , (c) supported by the newspaper industry, (d) cost $400 million to build, and (e) gets national publicity as a radio and TV program venue. (As Walter Mondale might have said, “I know the Newseum. I am a friend of the Newseum. And believe me your Stories Project is no Newseum.”) And need I even start with his comparisons to Abraham Lincoln?

REALLY? For starters, I really would like to hear the comparisons to Abraham Lincoln. The Newseum example was used specifically to reference the relationship between education and entertainment. You know this, Nick. Seriously, we both know about this fun debate tactic. Don’t spin this. We were not comparing this for attendance figures. Need I even start on Gov. Lucas’ home?


• That his attendance projections are “wildly optimistic” – perhaps by ten-fold – is not my “hunch.” The formula was recently confirmed by experts’ conclusion Denver’s economic boost from the Convention was closer to $16 million than consultants’ projections of $160 million.

No, it is exactly your “hunch”, Nick. Same with your “hunch” quote about I-80 leisure traffic in the Tuesday, Press-Citizen story. Do you have any IDOT data or numbers to back this statement up? If so, I would really like to see them. I think our hotels and many retailers would also beg to differ. Same with our various welcome center sign in books…which are filled with I-80 leisure travelers. Back to the Convention. Seriously, you are comparing this project to the Democratic Convention? I have not seen the actually pre-Democratic Convention feasibility report, have you? Not that I care to. Seriously, it’s a little unfair to call the projections “wildly optimistic” when you A) haven’t read the actual report, and B) are comparing this project to the Democratic National Convention. I think those same experts would agree there is a difference between economic impact projections and attendance.

Bottom line was we hired a professional firm to do this for us. We’re not the experts. Your students, fellow staff, and our neighbors are as much of an expert as either of us. That’s why we hired a firm who has done this for over 25 years. These firms don’t stick around the industry very long with pie-in-the-sky projections. We did our homework. Again, I wish you would have taken the time to read the full ConsultEcon report before stating your position.

I do appreciate the time you have taken in offering up your opinion on this. AND that’s not some closing auto sign off line either. You offered up some very thoughtful considerations/reminders for the entire community to be thinking about as we continue to review this concept. Feel free to call/email me at ANYTIME with further observations, comments, questions, whatever. I really would welcome them.

And let me know if you really would like me to drive you over to Springfield. Ha!

--josh


# # #

Friday, August 29, 2008

Important Things in Politics

August 29, 2008, 8:15 a.m.

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"Earthpark, Editorials and Beating Dead Horses," August 15, 2008.
"City's Moral Compass is Spinning,"
August 27, 2008.
"Ted, TED, Michelle and City Owned Hotels," August 26, 2008.
"Jails: 'Overcrowding' Not the Issue," August 21, 2008.
"Police Accidental Shootings -- Of Themselves," May 9, 2008.

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Priceless: The Political Influence Money Can Buy

"Mark Hanna, William McKinley’s campaign manager, once said, "There are two important things in politics. The first is the money and I can’t remember the second." Patrick J. Buchanan, "A Plague on Both Your Houses," Harvard University, March 16, 2000.

The line is often quoted (most recently by Ellen Miller of the Sunlight Foundation on ABC News, below) but omitted from even Wikipedia's Mark Hanna entry, and otherwise seldom sourced.

It's consistent with today's definition of the "Golden Rule": "Those who have the gold make the rules."

It was the subject of an eight-part series of blog entries I did on the general subject of "Golden Rules & Revolutions," April 12-19, 2008, with links to all eight from the final part.

It was central to my documentation, some years ago, that those who give campaign contributions in the $100,000 to $1,000,000 range end up getting a 1000-to-one to 2000-to-one return on their money: Give a million, receive a billion in return from grateful elected officials -- using of course our money as taxpayers and consumers. Nicholas Johnson, "Campaigns: You Pay $4 or $4000," Des Moines Sunday Register, July 21, 1996, p. C2.

And it was on display big time at the Democratic National Convention in Denver.

For years it was the Republicans who were thought to be the party of the fat cat, super rich, depicted in editorial cartoonists' drawings as rotund, cigar smoking, steely-eyed barons of industry dining in private clubs. The Democrats were thought to be the representatives of the working class and poor.

By 1968 it was Alabama Governor George C. Wallace who, "As a third party candidate, . . . opposed Republican Richard M. Nixon and Democrat Hubert H. Humphrey in the general election, maintaining that there was not a 'dime's worth of difference' between the two." Richard Pearson, "Former Ala. Gov. George C. Wallace Dies," Washington Post, September 14, 1998, p. A1.

It would be hard to sustain the assertion that there is no difference between the Democratic and Republican Parties, even though they are both such "big tent" organizations that it is probably true that there are some individuals, very close in their views, who for one reason or another are in different parties.

But when it comes to the interests of the largest and most powerful industries, companies, other institutions, and the top one-tenth of one percent of America's wealthiest, there does tend to be very little difference between the parties when it comes to voting the interests of those who are paying for the campaigns and the national party conventions.

How they do that was on display in Denver.

And we have to give thanks to ABC for daring to cover the story of the influence peddling by some of their major advertisers -- even, as ABC reported, "ABC News' parent Walt Disney Company," below.

Of course, it would be a different story if ABC only went after the Democrats. But its Web site urges that we, "Watch the final Money Trail report from Denver tonight on World News with Charles Gibson, and all next week from Minneapolis." So it looks like the bi-partisan report of this story will be coming soon.

Here, in order, are ABC's reports from Denver. These excerpts, as well as of course the entire pieces, really speak for themselves and require no further comment from me -- starting with how abusive the parties and their corporate sponsors can be in their effort to keep all of their shenanigans below the mainstream media's -- and our -- radar:

Brian Ross, "ABC Reporter Arrested in Denver Taking Pictures of Senators, Big Donors; Asa Eslocker Was Investigating the Role of Lobbyists and Top Donors at the Convention," ABC Evening News, August 27, 2008 ("Police in Denver arrested an ABC News producer today as he and a camera crew were attempting to take pictures on a public sidewalk of Democratic senators and VIP donors leaving a private meeting at the Brown Palace Hotel.").

Brian Ross, Rhonda Schwartz, and Avni Patel, "Money Trail: Lobbyists Gone Wild as Obama Remains Silent; Campaign Reform Groups Criticize Obama's Failure to Speak Up on Convention Excess," ABC Evening News, August 25, 2008 ("lobbyists are once again spending millions of dollars here on gourmet food, top-shelf liquor and private lavish parties for Democratic elected officials who seem more than happy to play the role of world-class freeloaders. . .. [O]ne of the country's leading lobbyists, Steve Farber, was chosen by . . . Howard Dean [as] chief fundraiser of the Denver host committee . . .. [This] founding partner of Brownstein, Farber and Hyatt, one the most prominent and active lobbying operations in Washington . . . persuaded some 141 corporations to contribute more than $50 million . . .. [C]corporate contributions to finance the conventions are a huge legal loophole in federal election laws that otherwise prohibit corporations from giving money to political campaigns.")

Brian Ross, Rhonda Schwartz, and Joanna Jennings, "The Influence Game in Denver: What Are They Hiding?; Ted Kennedy, Michelle Obama Speeches Ignored As Lobbyists Party On," ABC Evening News, August 26, 2008 ("Not even the emotionally charged speech by Sen. Ted Kennedy kept corporate lobbyists from carrying out their multi-million dollar campaign to wine and dine and influence Democratic lawmakers at a series of lavish parties last night in Denver. . . . 'This is all under the radar,' said Ellen Miller of the Sunlight Foundation, a non-profit group that has tried to track the hundreds of convention parties planned by corporations for Democrats in Denver and Republicans in St. Paul. . . . 'It's really the same old, same old,' said Miller. 'It was Mark Hanna, an old time Republican politico in the late 1800's who said "there are two important things in politics. The first is money. And I can't remember what the second one is"'.").

The wealthy members of the "Pelosi 100" [donors giving $100,000 or more] attended a private, lavish party Monday night in the penthouse suite of the Denver Performing Arts Center, featuring Tony Bennett, John Legend and James Taylor. . . .

[I]ncluded in the $100,000 Pelosi package was "preferred booking" at a top downtown Denver hotel, four convention hall credentials and access to luxury sky boxes overlooking the convention floor.

Last night, the wealthy donors in the sky box watched as Sen. Hillary Clinton praised Barack Obama for knowing "the government must be about we the people, not we the favored few."

The favored few in the Democratic Finance Committee skybox were treated to an open bar and food in silver chafing dishes.

Delegates outside the closed curtain of the sky box stood in line for $7 hot dogs and were not permitted to bring food to their seats at the Pepsi Center. . . .

Federal election laws permit individuals to contribute a maximum of $2,300 per candidate but contributors say the Democrats show how to work around the limit.

"They present us an entire menu and it can involve a million dollars or more spread around various candidates and committees around the country," said one wealthy lawyer who did not want his name used for fear he would be cut off from the VIP program.
Brian Ross, Rhonda Schwartz, Avni Patel, and Asa Eslocker, "The Money Trail: Putting on the Ritz, VIP Treatment for Big Money Democrats; Cocktails and Canap├ęs in the Sky Box While Delegates Line Up for $7 Hot Dogs," ABC Evening News, August 27, 2008 ("While its elected officials say it is the party of 'the working people,' Democrats are quietly running an elaborate VIP program that rewards wealthy contributors with luxury perks and insider access at the Denver convention, part of what the party calls a 'business plan.'")

Asa Eslocker, Avni Patel, Emma Schwartz, and Brian Ross, "Money Trail: Kanye West Proves Huge Boost for Media Lobbyists; Hot Ticket of the Week at the DNC; Free Concert Goes Until 2:30 a.m.," ABC Evening News, August 28, 2008 ("With a key piece of legislation pending before Congress, big entertainment companies pulled out all the stops Wednesday night with a free concert . . .. Lobbyists for the recording industry trade group, the RIAA, and music companies distributed free tickets to members of Congress . . .. Tickets for [Kanye] West's concerts often sell for more than $1,000. [T]he RIAA, whose members include ABC News' parent Walt Disney Company, spent more than $7 million on lobbying last year and has already spent $3.7 million this year. . . . Among RIAA's key efforts: pushing for passage of a bill that would toughen federal oversight of trademark issues, toughen penalties for violators and allow the Justice Department to prosecute civil cases for internet music downloading and trademark counterfeiting. . . . The West concert capped a week of lavish parties and entertainment put on by corporate lobbyists who push legislation and regulatory issues in Washington . . . put up $50 million to pay for the cost of the convention itself and millions more for scores of private parties.")

Don't miss ABC's report from the Republican National Convention. If things run true to form, those professionals -- who needn't suffer the hypocrisy of pretending to represent the poor, working poor and working class -- are going to make the Democrats' Denver efforts at shaking the money tree, and their "business plan," look like the work of bumbling amateurs.

# # #

Thursday, August 28, 2008

Censoring Billionaires

August 28, 2008, 10:20 a.m.

In American Media Even Billionaires Get Censored

I have enough Texan in me (Austin and Houston, 1952-59) that I get a real kick out of reminders of the folks I used to know, in this case some straight talking fellow like T. Boone Pickens ponying up the money to take on the oil industry and Bush Administration.

Unless you don't have a TV set, or never turn it on, surely you know about his proposal to, if not solve, at least address our energy crisis: massive investment in wind power to relieve power plants dependence on natural gas (and polluting, greenhouse gas emitting coal), and use our clean burning natural gas to power our cars and trucks, bridging the gap until we can come up with something better. ("This is one problem we can't drill our way out of.") The Pickens' Plan.

To critics who note he owns a lot of that natural gas he replies, simply, "Look, I've got $4 billion and I'm 85 years old. I don't think I need any more money" (or something like that).

Anyhow, Gregory Johnson of ResourcesForLife, brought to my attention this morning that NBC is now censoring Pickens. "Too Hot for NBC," The Daily Pickens.

It's not the first time they've done something like that. Back in the 1970s, I think it was, Mobil Oil had a creative public relations executive named Herb Schmertz who was permitted to run quarter-page ads on the New York Times editorial page, and did some creative advertising for the oil company. When NBC rejected one of his commercials, he came to the public interest environmental community and offered us something we could never otherwise have afforded: equal time on the network, at Mobil's expense, in which we could attack the company as viciously as we wanted. Mobil would pay double, and permit our attacks, so confident was Herb that he could convince the public and Congress that fish really do feel kind of cuddly about offshore drilling rigs. Well, NBC turned down that idea as well. (At least that's how my aging brain now remembers it.)

My point? That the result of the Supreme Court's view -- that with the First Amendment right to speak goes a First Amendment right to silence all others, including billionaires and Fortune 500 corporations -- along with the concentration of the mass media into fewer and fewer hands, is that the mainstream media have a choke hold on what the newspapers, magazines, cables, satellites and airwaves can bring into our homes.

Now, of course -- because censorship is a natural human tendency in all times, in all institutions, and under all forms of government -- this handful of media firms want to have the same control over the once wild-west-free Internet. But that's a story for another day.

For this morning, I just thought you might like to watch this 15-seconds from my currently favorite Texan, T. Boone:



Because you won't be seeing it on NBC.

# # #

Wednesday, August 27, 2008

City's Moral Compass is Spinning

August 27, 2008, 8:14 a.m.

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"Random Thoughts on Law School Rankings," April 29, 2008.
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"Abolish Bar Exams?" August 22, 2008.
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And see, Database Index of 500-plus blog entries


The Fallacy of the "Revenue is Needed" Rationale

Looks like it's time to bring out the "revenue is needed" blog entry once again.

Although the decision before the Iowa City Council involves whether to permit or prevent another 180,000 square-foot Wal-Mart in Iowa City, you'll find nothing in this blog entry regarding the case for or against Wal-Mart.

What this blog entry deals with is the Council members' analysis, their decision making process and rationale -- specifically, that at least a couple of them (two, not incidentally, for whom I have great respect and appreciation for their willingness to serve) are willing to articulate that the reason they are willing to do something that clearly has a down side, that was once successfully opposed and is still opposed by a significant number of the citizens of the community, is because, in effect, "revenue is needed."

Councilor Connie Champion said she supports the project because the city needs the tax revenue.

"This is a business decision -- a city business decision," she said.

Councilor Matt Hayek also favored the project for tax revenue reasons.

He said the budget already is tight for this year.

"We need growth in Iowa City. We especially need to expand our commercial tax base," he said.
Chris Rhatigan, "Smoking ban, Wal-Mart pass first hurdles; Proposals need two more votes to be enacted," Iowa City Press-Citizen, August 27, 2008, p. A1. The Gazette's report is comparable. Gregg Hennigan, "I.C. council votes for Wal-Mart; Proposal to expand retailer passes on the first of 3 votes," The Gazette, August 27, 2008, p. B2 ("'My business mind tells me the city needs this tax revenue,' said council member Connie Champion.")

(1) Goodness knows, no one should complain about a government trying to be fiscally responsible. Governments do need to balance the books -- unless it's the federal government, running up what is now over $50 trillion in unfunded future obligations and debt that we have all decided, by default, to just put on our great-grandchildren's credit cards.

(2) But fiscal responsibility can also involve cost cutting and increased efficiencies; refusing to transfer taxpayers' money to for-profit corporations bottom lines with TIFs and other devices; it need not always require higher taxes. In fact, sometimes innovative alternative approaches can simultaneously both (a) cost less, and (b) deliver more. See, for example, the analytical approach described and illustrated in Nicholas Johnson, "Jails: 'Overcrowding' Not the Issue," August 21, 2008.

(3) Nor does it necessarily follow that if worthwhile City projects (for example, proactive efforts that will return to the community in the future far more than they will cost today -- such as transforming flood plains into greenways) do require more money that the City should seize upon the first tax opportunity that comes down the road as the way to fund them. There's more than property taxes on businesses and homeowners. Cities should push for more opportunity to fund through an income tax surcharge. There's revenue from services, special assessments, user fees, and sales taxes. There are grants from federal and state agencies, foundations and corporations. This is not my normal line of work, but I do know enough to know that property taxes paid by Wal-Mart are not the only way to fund the City of Iowa City.

(4) So long as there is a free and open competitive market, there's nothing wrong with a corporation focusing on maximizing profit, whether through efficiencies, or the higher prices earned through better quality goods and services. Profit is, after all, a kind of important element of a "for-profit" corporation's mission. However, I find that kind of thinking very troubling when it comes to a city government; "increasing revenue" is not the mission of any unit of government, especially when the revenue is going to be increased by increasing taxes. The City's mission is, or ought to be, it ought to start with, (a) "what is in the best long-term interest of this community and its citizens?" -- separate and apart from whatever impact the answer to that question may have on the City government's revenue streams. It can then address, (b) what is the fairest, least intrusive, most administratively efficient way to raise the money necessary to accomplish those goals?

For example, urban sprawl, recruiting new businesses, transforming farms into suburban tracts, preferring commercial to residential building, rebuilding in flood plains instead of turning them into flood-preventing recreational greenways -- and making more land available for big box stores opposed by local residents -- might all be seen by some city governments as ways to increase City revenue. But such decisions would be thought by many to be diametrically opposed to the best long-term needs and interests of the community and its residents.

I cannot know for sure, of course, but "We need growth in Iowa City. We especially need to expand our commercial tax base" sounds to me like an analysis driven entirely by a "revenue is needed" approach rather than what is otherwise best for the area. The "growth" may or may not bring added revenue (after the subsidies, TIFs and other enticements are taken into consideration), but it may also involve at a minimum additional costs for the City (e.g., our $100 million water plant, roads, sewers, police and fire protection), as well as zoning variations, aesthetic problems, increased runoff and flooding, the "opportunity cost" of preventing a higher social use for the land, and many other consequences one would not have favored had one not been focusing on "growth" and the "commercial tax base."

(5) However, what troubles me most about this kind of thinking is a moral and ethical question. Because once "we need the revenue" becomes an acceptable rationale for one's decisions, and especially when its use by government officials goes unchallenged by everyone in the community, it can be used to justify virtually any unwise decision -- as it has been in our very community.

I have written about this before, and will simply repeat some of that here this morning.

As I have written before, "Once 'revenue is needed' is the Polestar for a university's financial decisions its moral compass begins to spin as if it was located on the North Pole." Nicholas Johnson, "UI Loves Gambling" in "UI Held Hostage Day 410 - March 7," March 7, 2007.

"Revenue is needed" is why politicians accept the bribes called "campaign contributions;" why "non-commercial" educational radio stations run commercials; why K-12 schools subscribed to "Channel One" and continue to sell sugared soft drinks to their students, knowing they will increase obesity, dental caries, and diabetes; why the UI's athletic program becomes a partner with the organized gambling industry's casino in Riverside; and why universities provide advertising on their buildings, and in naming their colleges, that promotes their corporate "donors."
Nicholas Johnson, "The Good News and the Bad News/The Bad News" in "UI Rips-Off Students Because . . . 'Revenue is Needed,'" September 25, 2007.

Indeed, Willie Sutton robbed banks, not just "because that's where the money is," but because "revenue is needed."

As I explained at the outset, I am not discussing, let alone arguing, in this piece for or against putting another Super-Wal-Mart in our metropolitan area. Those arguments have been, and will be, laid out for the Council to consider. There is a wealth of literature and data on the Internet regarding the issue and how it has been addressed elsewhere, and with what consequences. I would hope that that experience of others would be known to, and brought to bear by, our Council members in the case before them.

There are many valid -- as well as erroneous -- reasons for doing one thing or another with regard to Wal-Mart's proposal. "Revenue is needed" should not be among them.

# # #

Tuesday, August 26, 2008

Ted, TED, Michelle and City Owned Hotels

August 26, 2008, 1:00 p.m.

Currently Most Popular Blog Entries

"Jails: 'Overcrowding' Not the Issue," August 21, 2008.
"It's Biden -- for 'Experience'?" August 23, 2008.
"How to Build an Indoor Rain Forest," July 10, 2008.
"Random Thoughts on Law School Rankings," April 29, 2008.
"UI Sexual Assault Update" is now embodied in, and being updated as, a Web page, "University of Iowa Sexual Assault Controversy -- 2007-08," July 19-present; although the original blog entry (July 19-August 9) has not been removed,"UI Sexual Assault Update," July 19-August 9. Both remain among "most popular."
"Abolish Bar Exams?" August 22, 2008.
"Solving Illegal Behavior Problems by Making It Legal," August 20, 2008.
"Earthpark: 'Pretty Quiet Phase; No Timetable to Speak of,'" August 14, 2008.

And see, Database Index of 500-plus blog entries

Speeches

Well, Senator Ted Kennedy and Michelle Obama clearly stole the show last evening.

There was a pre-convention question as to whether Kennedy's condition would prevent his even attending the convention or, if he made it to Denver whether he would be able to muster more than a wave to the delegates. Well, he did more, much more, and his speech -- that he would even give one, not to mention its content -- was a moving experience not only for those in attendance but for all who've known and worked with him over the years and were among the 50 million watching on television. Adam Nagourney, "Kennedy Adds Spark; Obama's Wife Praises Values," New York Times, August 26, 2008 ("a triumphant appearance that evoked 50 years of party history").

In my new book, Are We There Yet? Reflections on Politics in America, I say of Michelle Obama, "now that's one woman I really do want in the White House." My suspicion is that she's probably brighter (i.e., in intelligence, knowledge, analytical ability) than her husband -- and is at a minimum his equal. And she can clearly be more straight forward and courageous than he -- which is a reason I suspect why we've heard less from her during the past few weeks.
Although I first visited with Senator Obama during his trip to Iowa City on April 12, 2007, his wife was not with him at the time. She first came crashing through to my consciousness when watching her performance at UCLA, February 3, 2008. What I then blogged was that "I found [her speech] one of the most impressive and moving campaign speeches about a candidate I've ever heard . . .." Nicholas Johnson, "I'm Voting for Michelle" in "Obama: Inspiring AND Polls Say Strongest Candidate," February 4, 2008. In any event, she fully carried on in the same tradition last evening at the Convention -- that is, to extent that anyone could while at what the Times described as being "the center of a multimedia charm offensive that may be the most closely managed spousal rollout in presidential campaign history." Which see, for what is perhaps a more balanced journalistic assessment of her speech, role and evolution in the campaign. Jodi Kantor, "Michelle Obama, Reluctant No More," New York Times, August 25, 2008 (with a link to a video of her speech).

And Speaking of Speaking . . .

. . . one of the many wonderful things about the Web/Internet is the serendipitous experience of coming upon a new site that causes you to say, "Wow."

In the course of looking at a Web site/blog this morning, generalpaper.wordpress.com, from which a blog entry of mine is linked (Nicholas Johnson, "Copyright, Fair Use, Blogging & Other Items," July 13, 2007) I scrolled around the rest of the site and discovered to my delight a Web site called Ted.com.

Here's what the site says about itself:

TED stands for Technology, Entertainment, Design. It started out (in 1984) as a conference bringing together people from those three worlds. Since then its scope has become ever broader.

The annual conference now brings together the world's most fascinating thinkers and doers, who are challenged to give the talk of their lives (in 18 minutes).

This site makes the best talks and performances from TED available to the public, for free. More than 200 talks from our archive are now available, with more added each week. These videos are released under a Creative Commons license, so they can be freely shared and reposted.
To give you some notion of the economic value of this gift, while "membership" in TED is free, attendance at the annual Long Beach conferences, near as I can figure out, runs about $6000 per attendee.

The operation is "owned by The Sapling Foundation, a private nonprofit foundation [that] was established in 1996 by Chris Anderson, who was at that time a magazine publishing entrepreneur."

To give you an idea of the nearly 300 talks available to you for free, here is one I clicked on from the generalpaper site this morning, Barry Schwartz, “The Paradox of Choice,” TED, July 2005.Obviously, I can't speak for any of the others (except for Malcolm Gladwell's "What We Can Learn from Spaghetti Sauce," February 2004, which was the other one that I linked to from generalpaper). While Schwartz' thesis is in no sense identical, it is certainly consistent with the "IFD disease" described in "Chapter I: Verbal Cocoons" of Wendell Johnson's People in Quandaries (Harper, 1946).

You either like this kind of thing or you don't. I do. You may not. Anyhow, I found it reminiscent of what we do with the International Leadership Forum, also out of southern California, in LaJolla, with which I've been associated since the mid-1980s, and decided to bookmark TED.

The Reality of "Economic Development"

For those who share this blogger's interest (some would say "obsession") with "what works" and what doesn't with economic development in general, and tourist attractions in particular, and the propriety and efficacy of governments putting taxpayer money on the bottom line of for-profit corporations, The Gazette's editorial this morning, Editorial, "Exploring the Hotel Options," The Gazette, August 26, 2008, p. A4, is well worth a read both for its factual content and its opinion/suggestions. Prompted by Cedar Rapids' troubles with the Crowne Plaza Five Seasons Hotel and its franchise agreement with the City, it not only describes that intricate relationship, but the way that Coralville and Dubuque have also put their cities' governments (and their taxpayers' money) sort of half-way into the hotel business.

Yesterday, Jeff Brady's "Morning Edition" piece reinforced another assertion of mine in this department: that local promoters, enthusiasts, cheerleaders and their consultants often exaggerate the profits to be made from an attraction or event (e.g. the Democratic National Convention in Denver right now, an Olympics or Superbowl venue) by as much as ten times. That turns out to be precisely the multiplier Brady's "experts" chose to describe this phenomenon. Jeff Brady, "The Business Outside The Denver Convention," Morning Edition/NPR, August 25, 2008, 3 min. 38 sec. ("Organizers of the Democratic National Convention in Denver say it will pump as much as $160 million into the local economy. Experts say the total will be more like $16 million. Businesses in the Mile High City are optimistic, though some are slashing prices to make sure the convention isn't a bust for them." That's the text on the Web page; transcripts of the entire piece are available for a fee; the audio is available for free. The interviewed expert points out that the predictions often (1) fail to distinguish between gross revenue and profit, and (2) ignore the fact that much-to-all of both end up being shipped out of town to the corporate headquarters of, say, the hotel chains that are operating the local hotels at inflated room rates and full occupancy.)

# # #

Saturday, August 23, 2008

It's Biden -- for 'Experience'?

August 23, 2008, 6:00, 10:00 a.m.

Update, 2:30 p.m. CT: For one more reason why Senator Biden was a good choice, check out the Obama-Biden Rally in Springfield today, available from C-SPAN.org.

It's Senator Joe Biden

The big secret -- predicted by most knowledgeable observers and scheduled to be announced by "text message" to supporters later today -- was somehow leaked about 11:00 p.m. CT last evening, urgently text messaged at 2:00 a.m. this morning, and I was listening to the news coverage shortly thereafter.

Senator Biden is in my view a solid contribution to the ticket, someone I greatly respect and personally like, someone who could handle the presidency with skill if need be -- the last of which could be said of a number of the nine candidates in the very, very impressive Democratic Primary field this year.

Not incidentally, the timing really threw a curve ball to the conventional media, left to respond with little more than online editions and blogs. See, e.g., Chris Cillizza, "Obama Picks Biden as V.P.," Washington Post/The Fix Politics Blog, August 23, 2008, 6:17 a.m., and The Gazette's hard copy headline on the McClatchy story, "Obama keeps VP pick under wraps," August 23, 2008, p. A3.

Scheduling a major news release for 2:00 a.m. Saturday morning makes about as much sense as holding a presidential nominee's acceptance speech at 2:45 a.m. -- something I assume the Obama campaign is also hoping to avoid, though the parallels are spooky. Timothy Noah, "McGovern Redux," New York Times, November 11, 2007 ("Most regrettably, feminists’ spontaneous nomination of the Texas state legislator Sissy Farenthold for vice president forced a roll call that helped delay McGovern’s nomination acceptance speech until 2:45 a.m., thereby ensuring that almost no one would see it on television.").

Experience

A very strong argument can be made that "experience" is a neutral-to-negative when evaluating potential presidents (or vice presidents). And many of those taking this position note they need go no further for "Exhibit A" than our current president, George W. Bush (formerly a governor) -- and especially his Vice President Dick Cheney (President Ford's White House Chief of Staff; 6-term member of Congress and minority Whip; President George H.W. Bush's Secretary of Defense; CEO of Halliburton), and former Secretary of Defense Don Rumsfeld (President Ford's White House Chief of Staff; Secretary of Defense (1975-77); Ambassador to NATO; Member of Congress; Captain in U.S. Navy).

I disagree. I believe a breadth of experience -- as distinguished from what is sometimes described as the difference between "30 years experience, and one year's experience 30 times" -- can contribute to one's performance for a variety of reasons.

But when the very narrow "experience" of two persons, neither of whom has that breadth of experience, is being compared I think it's kind of silly to focus on "experience" at all.

Which is what I thought during the primary, think now when comparing Senators Obama and McCain, and when considering what the selection of Senator Joe Biden adds to Senator Obama's side of the balance scale of experience when it's weighed along side that of Senator McCain.

The following is an excerpt from my new book, Are We There Yet? Reflections on Politics in America, primarily focused on the contrast between the "experience" of Senators Clinton (who made it a major element of her qualifications) and Obama (who did not), but now of relevance to Senator Obama's choice of Senator Biden as well:

There’s little significant difference between Sens. Barack Obama and Hillary Clinton as lawyers who are well educated, thoughtful, widely informed and fully capable of formulating proposals on numerous topics. Both are articulate, though Obama has the charisma advantage.

But the experience qualifying someone to be president requires a lot more than having been married to one, proposing good ideas or world travel.

As someone who has served during the administrations of three presidents, I believe the presidency is one of the most complex administrative jobs imaginable.

There’s no perfect, qualifying “experience.” But two things can help.

One is experience at administering large institutions: a federal cabinet-level department, a state government, military branch, major university or corporation.

The other is the understanding and rapport earned by having worked in institutions with which a president must relate: city, county and state government; the federal executive, legislative, judicial and administrative branches; international organizations and embassies; labor unions and Wall Street, among others.
By these standards both Democrats and Sen. John McCain are unimpressive.

None has served as mayor or governor; none has headed a cabinet department; none has helped administer the Pentagon or CIA; none has worked for international organizations, been ambassador to the United Nations or a foreign country; none has been a union officer or corporate CEO. None has headed delegations negotiating with foreign governments over trade agreements, release of hostages or treaties.

Each has the “legislative experience” of making speeches and signing bills, though none as House speaker or Senate leader. McCain has 25 years in the U.S. House and Senate, Obama 12 years in the Illinois and U.S. senates and Clinton the least with eight years in the U.S. Senate.

McCain and Obama have little to no administrative experience, and Clinton’s record is spare and negative.
To repeat, I don't think a breadth of experience is a prerequisite to being president (or vice president). Someone can be perfectly well qualified to be president without it. Few of our presidents have had the breadth of experience of, say, President George H.W. Bush (the current president's father), or New Mexico Governor Bill Richardson. And many have done quite well without it.

All I am saying is that if all (or most of) what one has ever done is to be a member of the United States Senate, given the range of experience that would be helpful for a president to have had, it's a little silly to talk about how "qualified" they are for the job based on that very narrow and limited experience, regardless of how long they've done it.

Clearly, Senator Biden brings "foreign policy" experience, with emphasis on "policy." He certainly has established relationships among many of the world's leaders. He's brighter, has better judgment, and is far more knowledgeable than Senator McCain on such matters. It's just that it's not the equivalent of having had responsibility for making the decisions, and administering the follow up, as Secretary of State or Defense, or even National Security Adviser to the President.

There were many reasons for President Lyndon Johnson's spectacular legislative accomplishments in 1964 -- among them the emotional impetus for the Congress and nation of President Kennedy's death and legacy. But a major factor was Johnson's having been majority leader of the Senate, from which position he had orchestrated that institution like a philharmonic conductor. He knew each of the senators well, and the culture and procedures of the institution even better.

Senator Biden has not been leader, but he has been a well-regarded member for some 35 years, ever since he was 29 years old. The nuances of legislative judgment he can bring to a President Obama Administration will be an enormous contribution, in some ways similar to those possessed by Lyndon Johnson.

So I think Senator Biden was a great choice for vice president. He will bring a lot to an Obama Administration. I just wish the campaigns and the commentators would stop talking about the relative "experience" of senators, none of whom have much breadth of experience to offer.

Defamation of Public Figures: Rethinking New York Times v. Sullivan

"Coast to Coast" is an all-night radio talk show on hundreds of stations (including 11 in Iowa alone), the preferred subjects for which somewhat resemble those of the now-defunct supermarket tabloid, Weekly World News.

For example, its Web site suggests listeners might be interested in the following . . .

Hot Stories for Sat., August 23, 2008

* Has Couple Found Formula To Win Lottery?
Husband, wife have each claimed $350,000 check this week. --WNBC
* Black hole star mystery 'solved'
Astronomers have shed light on how stars can form around a massive black hole, defying conventional wisdom. --BBC News
* Getting inside the minds of moviegoers
Brain scans can help Hollywood figure out how to make and market films. --LiveScience
* A Ghost in the White House!
Could the mysterious figure in a photo taken by Abbie Rowe of construction work in the White House be a ghost? --Mysterytopia
* Bigfoot tricksters blame hoax on promoter
Middleman has filed theft complaint against the men. --Atlanta Journal-Constitution
Last evening the host devoted the first two opening hours of the show to what the Web site "Recap" (where the audio can be downloaded or streamed) reports as follows:

Berg vs. Obama Lawsuit

Filling in for George [Noory], Ian Punnett welcomed Philip J. Berg, an attorney and self-professed Hillary Clinton supporter who has filed a lawsuit against Barack Obama, the Democratic National Committee, and several other parties. Berg contends that Sen. Obama is not a natural born U.S. citizen and, therefore, is not constitutionally eligible to run for the office of president.

According to Berg, Obama was born in Kenya and then a week later flown back to Hawaii where a certificate of live birth was filed (view certificate). Berg claims the birth record initially posted on the Obama campaign website is a forgery based on his half-sister's certificate. Berg also noted that Obama would have lost any American citizenship status he had when he moved to Indonesia with his mother and was adopted by his step-father.
I don't mean to suggest that the host, and none of those who called the show, never challenged these assertions because rarely they did, but clearly Berg was given the bulk of the two hours to repeat and try to validate them.

Those who already are confident that Obama is a Muslim, and that the bulk of his contributions have come, illegally, from unidentified citizens of other countries, will undoubtedly be equally careless in sending emails to all of their friends with this "confirmation" that Obama is not even an American citizen.

Even I felt it necessary to check, going first to my all-purpose online urban legend fact-check site, http://snopes.com. "True or False"? Snopes says, and documents, "False." As it points out, anyone born in the United States is an American citizen, according to the Fourteenth Amendment to the Constitution ("all persons born . . . in the United States . . . are citizens of the United States."). Snopes also includes a link to the official Hawaii "Certification of Live Birth" ("prima facie evidence of the fact of birth in any court proceeding") that Obama was born in Honolulu, Oahu, Hawaii -- added to the United States as a state two years before Obama's birth ("21 August 1959 for statehood vs. 4 August 1961 for Obama's birthdate").

At common law, it was enough to win a defamation suit that the defendant's statement was false and resulted in harm to the plaintiff's reputation. It was not necessary to show that the defendant knew the statement was false, or intended to do the plaintiff harm. Indeed, newspaper stories merely repeating the statements of others could result in liability on the theory that, as the saying had it, "the repetition of a libel is a libel."

This all changed with the U.S. Supreme Court's decision in New York Times v. Sullivan, 376 U.S. 254 (1964) and its aftermath. Much has been, and can be, analyzed and written about that decision, but I'll save that for the classroom.

For our purposes it's enough to note that the Court approached the case as a First Amendment case rather than as a defamation case. Insofar as public officials are the plaintiffs, there is a risk of a "chilling effect" on the media's willingness to cover public officials, and government in general -- a central purpose of the First Amendment being the media's "checking value" and oversight of the worst of government's mistakes and corruption -- if they are fearful of multi-million-dollar defamation verdicts from juries not all that fond of the media anyway.

So public officials (and subsequently "public figures") must show more in a defamation case than you and I. They must show something called "actual malice" -- which, in the wondrous mystery of the law's vocabulary, has almost nothing to do with "malice" as we generally think of it. "Actual malice," as the Court used it, means that the public official plaintiff must show that the newspaper (or other speaker) either (1) knew that what they were saying was false, or (2) exhibited "reckless disregard" in pursuing ahead of time whether what they were communicating was, in fact, true or false.

This heightened "burden of proof," coupled with the disinclination of a public official to bring further media attention to false charges that harm his or her reputation, have contributed to the production of shows such as that with Philip J. Berg last evening, and the "negative campaign ads" that will only be accelerating between now and election day.

The question I pose is what, if anything, can and should be done about this phenomenon?

The most thorough and long-term solution would be to have an educational system such that anyone graduating from high school would reflexively ask the two basic questions regarding any assertion: "What do you mean?" and "How do you know?" The public would protest when newspapers publish mere criminal or other charges against someone before a trial or other proceeding is concluded or settled. Individuals would have far less interest in even hearing, let alone repeating, mere gossip; they would thoroughly check on the Internet and elsewhere before sending out by email or otherwise stories and assertions that will be harmful -- and almost impossible to effectively retract if false.

I don't hold out much hope that day will be arriving anytime soon.

Meanwhile, some newspapers and other media organizations do investigate, prepare and distribute a kind of truth check about negative campaign ads.

Snopes helps.

Campaigns can answer; I believe the Obama campaign has come out with both a Web site reponding to attacks, and a 40-page document responding to Jerome R. Corsi's screed, The Obama Nation.

But as others have noted as well, "Media damage, once done, can almost never be repaired; truth is a notoriously slow runner in its race with defamation."

Which brings me to at least ask, if not answer, the question: Do the rise and babble of cable television's shouting "chattering classes" repetition of politicians' "talking points," the increasing and increasingly sophisticated negative campaign ads, the unsupervised blogosphere and opportunity for anonymous over-the-top mean-spirited comments on newspapers' online stories as well, mass emails and posts to list-servs, text messaging and the other ways that defamation and other unhelpful untruths can be offered to everyone and spread at the speed of light, require a re-thinking of New York Times v. Sullivan?

To offer but one possibility: Might there be a value in either creating, or elevating the public's awareness of a pre-existing, institution charged with responding to public officials' (and candidates') concerns and complaints regarding what they believe to be defamatory, or otherwise false, charges? This would not involve the potentially "chilling" multi-million-dollar defamation suits against the mass media from which the Sullivan Court wished to protect the mass media. It would simply involve a Snopes-type investigation and widely publicized relatively authoritative findings as to where the truth lies. The effectiveness, and "enforcement," would simply be the social opprobrium heaped upon those engaged in reckless charges, or "swift-boating" their opponents.

Just an idea.

# # #

Friday, August 22, 2008

Abolish Bar Exams?

August 22, 2008, 8:30 a.m.

Currently Most Popular Blog Entries

"UI Sexual Assault Update" is now embodied in, and being updated as, a Web page, "University of Iowa Sexual Assault Controversy -- 2007-08," July 19-present; although the original blog entry (July 19-August 9) has not been removed,"UI Sexual Assault Update," July 19-August 9. Both remain among "most popular."
"Solving Illegal Behavior Problems by Making It Legal," August 20, 2008.
"Police Accidental Shootings -- Of Themselves," May 9, 2008.
"Earthpark: 'Pretty Quiet Phase; No Timetable to Speak of,'" August 14, 2008.
"Jails: 'Overcrowding' Not the Issue," August 21, 2008.
"How to Build an Indoor Rain Forest," July 10, 2008.
"Forbes, Mural, Poverty and 7 Presidential Candidates," August 17, 2008.
"Random Thoughts on Law School Rankings," April 29, 2008.
"What We Know That Ain't So," July 28, 2006.

And see, Database Index of 500-plus blog entries


Abolish Bar Exams?

A friend, former school board colleague, former mayor of North Liberty, congressional candidate -- and recent Iowa law school graduate -- Dave Franker, argues in a Register op ed this morning that Iowa (which recently decided to stop examining potential Iowa lawyers on their knowledge of Iowa law) should abolish the bar examination entirely. David Franker, "What to Keep More New Lawyers in Iowa? Drop Bar Exam," Des Moines Register, August 22, 2008.

Some states already grant law licenses to those who've earned law degrees from designated law schools, and Franker is making the case for why Iowa should join them.

I have to confess to a little apprehension about the idea.

When I entered law school Dean Page Keeton brought all the new entrants into a room and literally used the line, "Look to your left. Look to your right. One of you is not going to be here next year." He was right; the faculty's grading of exams resulted in roughly one-third of all first year law students not becoming second year law students.

Most of the ones who remained probably could have safely been permitted to practice law on clients. Nonetheless, a bar exam was required as the final rite of passage. Fortunately, we were permitted to take it before graduating. It made for a heavy last semester, what with getting out more law review issues than usual, carrying a full load, holding two jobs and managing an apartment house (as I now recall, perhaps erroneously) -- so much so that I wasn't able to take the bar review course -- but I passed, was admitted, and was able to use the summer before my clerkship began to tour all the national parks west of the Mississippi.

All of this was, literally, a half-century ago.

Grade creep has spread through our schools like kudzu in Alabama. If I recall today's local high school graduation ceremonies correctly, roughly a third to a half of the graduates graduate "with honors" of some sort. There used to be just one "valedictorian." Now there are multiples. I recall a talented high school student near tears over her grades; they were all "As," but she had hoped to get one more "A-plus" than she got in order to bring up her average.

Undergraduate programs in colleges and universities, and even graduate and professional schools, have yielded to the pressure.

The law schools have not been immune.

Indeed it was my concern about the quality of lawyers' writing, as reported to me by judges, that was a part of what caused me to run for, and serve on, the local school board -- believing that the law schools simply could not solve this problem all by themselves.

Before I launch into this commentary, let me make clear that I believe the national ranking of the University of Iowa's College of Law -- among a handful of the top public law schools in the country -- is well deserved. See, e.g., Nicholas Johnson, "Random Thoughts on Law School Rankings," April 29, 2008 (and, as noted above, as of this morning still among the "most popular" of the blog entries). Individual faculty members are productive, conscientious, collegial, care about students, and sought after by other schools (as professors and as potential deans). The law library is, by some measures, number one or two in the country. Our best law students are fully the equal of law students anywhere.

My comments relate to law schools generally (as well as education generally), not any one school in particular.

But today, if a law school dean's talk to new entrants were to be honestly given, it would be, "Look to your left. Look to your right. All of you who want to will be back here next year." If you stay in town, attend a goodly number of classes, take your exams, write your papers, and aren't found to have engaged in conduct involving moral turpitude it's very difficult (though not impossible) to "flunk out" of a law school. And if you do so anyway, the odds are good you can be re-admitted at some point.

Many lawyers, including myself, believe there are some law school courses that every lawyer should take. When I was in law school most of those courses were required. Today they are, for the most part, "electives" that students are free to take or not.

All of the above has prompted me to propose (without gaining the support of a single law professor or member of the bar anywhere, so far as I know) a two-track law school curriculum and system of evaluation. Anyone with the minimum GPA and LSAT score could be admitted to, attend, and graduate from law school -- as now.

But for those who wanted to become practicing lawyers there would be more required courses (both academic and skills), along with different, and higher requirements and standards regarding such things as preparation, performance, and professionalism. (I've hinted at some of the distinction in "So You Want to be a Lawyer: A Play in Four Acts" -- probably, among the thousands of bits of writing I've posted to my Web site and blog over the years, the one that consistently receives the most hits from around the world.)

Indeed, it would be interesting to know what they'd say if you'd ask medical and law school faculty members, "What percentage of the students you've had, say five years after they've graduated, would you be willing to trust with your personal legal business, or your family members' health?"

At present, my sense is that law faculty -- understandably and with reason -- sort of assume it is the bar examiners' job to make the judgment about who is, and is not, qualified to practice law, and it is the faculty's job to concentrate on doing the best job of teaching and supervision they can provide with the resources they have.

So, (1) I still think the UI College of Law is deservedly one of the best in the nation, (2) that its faculty would be capable of assuming the bar examiners' role of granting bar admission to graduates thought to qualify, (3) that Franker's idea is worth pursuing, but that (4) until law school faculties are given, accept and execute that responsibility it might be premature to eliminate the bar examination and admission process in Iowa.

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Thursday, August 21, 2008

Jails: 'Overcrowding' Not the Issue

August 21, 2008, 7:15 a.m.

Currently Most Popular Blog Entries

"UI Sexual Assault Update" is now embodied in, and being updated as, a Web page, "University of Iowa Sexual Assault Controversy -- 2007-08," July 19-present; although the original blog entry (July 19-August 9) has not been removed,"UI Sexual Assault Update," July 19-August 9. Both remain among "most popular."
"Forbes, Mural, Poverty and 7 Presidential Candidates," August 17, 2008.
"Solving Illegal Behavior Problems by Making It Legal," August 20, 2008.
"Earthpark: 'Pretty Quiet Phase; No Timetable to Speak of,'" August 14, 2008.
"UI Football Promoting Gambling?" September 16, 2006.
"Police Accidental Shootings -- Of Themselves," May 9, 2008.
"What We Know That Ain't So," July 28, 2006.
"How to Build an Indoor Rain Forest," July 10, 2008.
And see, Database Index of 500-plus blog entries


Elevators and the Escalating Costs of Incarceration

"Slow Elevators" and . . .

One of my favorite stories when explaining "systems analysis" is the hotel elevator story.

A hotel was besieged with guests' complaints about the hotel's slow elevators. Understandably, the hotel manager called the elevator service company. The elevator repair folks did what they could, but the complaints continued. He called them back again, but the elevators still ran too slowly to suit the hotel's guests.

A systems analyst who was staying at the hotel heard of the problem and offered his services as a consultant.

"What's the problem?" he asked.

"The elevators are too slow," the manager explained.

"What do you mean?" the consultant continued.

"I mean we're getting lots of complaints from our guests about the elevators," the manager said.

"Aha," the consultant brightened, "You don't mean you have a problem with slow elevators, you have a problem with guests' complaints."

"Well, yeah, I guess so," the puzzled manager replied. "But what they're complaining about is those slow elevators."

"Give me a day or two and I think I can come up with something," the consultant said with confidence.

He spent the morning watching the guests as they waited for the elevators to arrive. He observed near the elevator doors in the lobby and on four or five of the upper floors where the rooms were located. He saw guests looking at their watches, and pacing back and forth as they waited.

By the afternoon of the first day he had solved the problem and reported his proposal to the manager: "Put full-length mirrors across the hall from every set of elevator doors on every floor."

Six months later he was back at the hotel and ran into the manager. "Are those slow elevators running any faster now?" he grinned.

"I doubt it," said the manager, "but we haven't had a single complaint about slow elevators since we put in those mirrors."

In short, the problem was neither "slow elevators" nor the time people were waiting, it was their lack of something to do while they were waiting that caused them to complain about "slow elevators." Give them the opportunity to preen in front of a full-length mirror and the elevators were getting to their floor almost too soon. Identifying the problem as "complaints" rather than "slow elevators" was what enabled the systems analyst to envision a solution.

. . . "Overcrowded Jails"

So what does all this have to do with an "overcrowded" Johnson County Jail?

The Press-Citizen editorializes this morning, "Scales Tipping on the Cost of a New County Jail," Iowa City Press-Citizen, August 21, 2008, p. A11. The editorial speaks of "overcrowded conditions [with] the average daily population . . . at least 30 inmates more than the jail can hold."

From time to time I have blogged about alternatives to either "house the inmates in other jails" or build a multi-million-dollar expanded new one.

When I have, John Neff has usually weighed in with an informed comment he's added to my blog entry, trying to keep me both honest and better informed about the practicality of my "solutions."

Today, alongside the Press-Citizen's editorial, is a full-length op ed column by John Neff in which someone who is really informed and has thought about this stuff lays out what I would be writing if I knew more. John Neff, "Controlling the Jail Population," Iowa City Press-Citizen, August 21, 2008, p. A11.

Read it. Not just because we all need to know more about our criminal justice system -- and the prisons and jails that constitute our major, if not our only, public housing program in America. Not just because we'll probably be asked to take on an added property tax burden to pay for a new jail. But because of what Neff has to teach all of us about how we need to approach public policy questions in general, from indoor rain forests to outdoor rivers' floodplains.

Whether or not our jails are "overcrowded" is not the issue. Indeed, framing the issue that way is so totally overly simplistic as to virtually guarantee we'll come up with the wrong answers.

What we ought to be asking -- and what John Neff does ask, and answer -- are questions such as the following:

How many persons are booked into our jail? What are their most common offenses? Why couldn't the police use "cite and release" for those who will probably be released on bond anyway? Since "public intoxication" (34% of offenses) and "OWI" (28%) are nearly 2/3rds of our jail's occupants, might it be cheaper to build a "sobering up or detoxification center" than a "jail"?

So, we could concentrate on reducing the number of people who are booked into jail.

We could also reduce the length of stay for those who are there.

It turns out that 80% of the bed use each year is by those who are in the jail for three weeks or more (68% of those booked are released within 24 hours). How could we reduce the long-term stays? Neff suggests: "mental health diversion, improving court efficiency and revising [bail practices]."

Do we have returning jail occupants?

Absolutely; about 350 individuals. They constitute 10% of all bookings. What to do? Neff suggests, "substance abuse screening and treatment, the Department of Transportation Court . . . and the new drug and mental health court." (I seem to recall reading somewhere that on the order of a full half of all prisoners are suffering from some form of mental illness, which prisons are not designed to deal with and, if anything, simply make worse. Providing meaningful and hopeful treatment in mental hospitals would do a lot to reduce "overcrowded" jails, mental illness -- and the total costs to taxpayers for dealing with this population.)

Neff goes on to discuss "Increasing the use of jail alternatives" -- something he thinks Johnson County has done a pretty good job of, but could do even more about.

In fairness, and to avoid any possible distortion of his views (though the best source is the full text of his column, which I've already encouraged you to read), my impression from his comments added to my prior blog entries is that he felt we had pretty much done all we could by way of alternatives and that our best course was to consider a new and expanded jail. Hopefully, he may see this blog entry and add a clarification of his own on that score.

Finally, I would simply note that a part of what we're dealing with here is what a systems analyst would call a "peak load problem." For example, how many shopping carts should a supermarket, or big box store, invest in? If they buy enough to handle the largest crowds they'll ever have, they will have a capital cost/investment most of which will be sitting idle most of the 168 hours each week. If they don't, they may lose a customer from time to time whose purchases might have covered that cost. The airlines are confronting this question now with regard to the number of planes, flights and employees that will optimize their cash flow. How many rooms should a new hotel have? A large family, with a single bathroom, and most family members needing to leave the house about the same time each day, also has a "peak load" problem.

And so it is with jails.

I don't know when Iowa began laying out what are now its 99 counties; probably about 150 years ago. They made sense as governing units when you had to get to the county seat on horseback or in a wagon moving relatively slowly along sometimes muddy dirt roads. Now we have automobiles, Interstates and what I would suspect is one of the nation's best "farm-to-market" systems of county roads.

It probably makes sense to continue to provide some governmental functions from within these relatively tiny jurisdictions called "counties," with their "county seat courthouses." Other functions might better be performed from regional centers, the state capital -- or even Washington, D.C. And still others from cities -- or even precincts, and neighborhoods.

Much of our "overcrowding" problem, as the Press-Citizen's editorial acknowledges, is a result of the fact "that the floodwaters have closed down Linn County Jail." That is, because the Linn County Jail, to the north, is not available for our overflow -- our "peak load problem" -- it now costs more to ship our excess inmates to more distant jails. With all respect, however serious and costly that problem may be we don't need, as the saying has it, "a permanent solution to a temporary problem."

The flooded jail gives us two opportunities/lessons we should seize: (1) don't ever, again, build a public building (such as a jail) in a floodplain where we know that it will, someday, be flooded out, and (2) let's rethink the possibilities and benefits of "regional" jails to deal with counties' peak load problems.

I'll leave it to others to calculate the optimum occupancy rate and peak load solution. But I would guess it to be somewhere between 70% and 90%. That is, if (after we've done every imaginative thing we can think of to reduce the number of inmates and their length of stay) the Johnson County Jail is adequate to handle the number of inmates for 70% to 90% of the 365 days of the year, the most economical next step might be to join in with the surrounding counties (and someone else can figure what that optimum number, location, area and population would be) to build a "regional overflow jail" for all to use.

The alternative is for all 99 counties to build jails that can handle, say, 95% to 98% of their largest ever occupancy -- with a significant number of empty beds in county jails all across Iowa on any given evening.

There's more than one way to speed up the slow elevators.

Just a thought.

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