Supreme Court ruling and bad lawyers

Let me preface this by saying, I am not a lawyer. But I know one when I see one.

The Supreme Court ruled on a very minute point of law yesterday that has tremendous impact on future cases. The case involved a pay discrimination case that had numerous legal screw ups from the start.

Let's start with the bad lawyering and then get on to the bad adjudicating.

1) The lawyers didn't press claims under all of the avenues possible. For some reason, the attorneys in question failed to press for an Equal Pay claim and instead focused on a Title VII claim (it's not really important what these claims are... merely that there were two ways to procede and rather than choose both as they could have done they only chose one)
2) Then, when seeking Supreme Court intervention, the lawyers decided NOT to appeal the critical element of the appeals court ruling and instead went with a tangential (though still important) section of the ruling. In this case, the court ruled A was incorrectly applied and therefore B lacked sufficient evidence. The lawyers attacked A being incorrectly applied and failed to ever raise the issue of whether or not B truly lacked evidence.
3) Finally, the attorneys failed to frame their argument in the proper framework. The allowed Alito et. al. to view the discussion in a particular angle that didn't work for them. This is the cardinal rule of debate and is particularly important when you're the plaintiff. You MUST frame the argument correctly or else you just lose.

Let's look in a little more depth at #3. Basically, the case said, the following:
1) Ms. Ledbetter was discriminated against in pay decisions
2) Ms. Ledbetter did not find out about the discrimination until much later
3) Ms. Ledbetter then filed a claim alleging that prior pay discrimination had affected current pay (due to a system of % based raises)
4) Ms. Ledbetter lost because the judges claimed (based on precedent) that "A discriminatory act which is not made the basis for a timely charge . . . is merely an unfortunate event in history which has no present legal consequences."

What the attorneys should have done, was to frame the argument this way:

1) Goodyear's system is designed to perpetuate discriminatory decisions by basing all raises on the prior period's wages.
2) Each annual evaluation should be considered a discrete event in which the pay of someone is reanalyzed. If the employee is found to have a disparity in pay with their colleagues it should be addressed and not perpetuated.

Moving on to the bad adjudicating:
The cases sighted by Alito really call in to question the man's intelligence. In fact, on page 10 he references a case involving AT&T that is about the worst example of law I've ever seen in my life. Basically, AT&T adopted a rule that seniority in a certain male dominated position would be based only in time in that position and not time at the company (a special rule for the company as no other position had this rule). Then women started to move in to the position. Then AT&T announced lay offs and laid off all of these new women (plus some men presumably). The court granted that the root reason for adopting the rule was discriminatory (having not seen the evidence, I can't opine on this, but it seems an odd thing for a company to do). However, they then went on to say that the time for a claim to be filed started when the rule was adopted and not when the rule was applied. That's about the most ridiculous thing I've ever heard of.

1) It allows any company which still has sexually discriminatory policies on their books to continue to apply them because they weren't challenged originally.
2) It forces someone to file a complaint and mount a legal case BEFORE damages have been seen. This same court that was sooooo skeptical of the states cases against the EPA regarding potential future damages, now wants to place the burden of identifiying and litigating what may or may not be discriminatory on kind hearted, deep pocketed skeptics who have not yet been harmed by a policy.

I had high hopes for Roberts to be a voice of reason (even if he turned out to be conservative in general) but this case clearly shows that the Chief Justice is not that man.

FIFA almost helps us...

FIFA announced today that they would no longer allow international games at high altitudes. Before you get too excited about no more games at the Azteca, take a look at the article. FIFA defined high altitudes as 8,200 feet. I'm sure a lot went into this decision but the only thing that matters for the USA is that Mexico City is a "mere" 7,349 feet. I couldn't find a height for the actual stadium on Wikipedia but I'm sure it's not 800 feet above the city proper. Oh well, maybe Sepp Blatter will help us out next time.

An interesting candidate

What if I told you there was a candidate who served as Secretary of Energy and is thus intimately familiar with both commercial energy matters and nuclear technology?

What if I told you there was a candidate who was Ambassador to the U.N.

What if I told you there was a candidate who has been a wildly successful and popular governor of a non-east coast state?

What if I told you there was a candidate who was asked by a President of the opposition party to go overseas and broker a deal with a country that has proved recalcitrant and hostile. AND that he did this successfully, quickly and with relatively little fanfare. Oh yeah, the deal got that country to cease production of a nuclear arsenal.

This candidate is Bill Richardson. I'm not exactly endorsing him. I think he's somewhat fringe on some fairly major issues. But I do find it interesting that his resume is wayyyyy better than everyone else's. Look at his opponents in the democratic party.

Hillary: Senator for 7 years for the state of NY. All other resume items came as First Lady
Obama: Worked in state government and then as a US senator for the past 3 years
Edwards: Senator for 3 years before dropping out to run for President and then Vice-President.
Guiliani: Mayor of New York for (8?) years
Romney: Governor of Massachussettes
McCain: Long time Senator
Thompson: Senator / Actor
Gingrich: Senator in a leadership position

The resume of Richardson is so much more robust, diverse and (most importantly) applicable to the challenges we face that its not even funny. He's definitely an interesting candidate. I think it also helps that he's Hispanic without looking "too" hispanic. It bugs me that this is an item even worth mentioning but I believe it probably is a factor that will matter.

Does the best team win the Superbowl?

I've often been fascinated with the notion that tournaments and sports seasons don't always produce the "best" team... I decided to construct a spreadsheet (which I can send to anyone who wants it) to test this...

My model was the NFL... Here's my assumptions:

Modeled after the current schedule (i.e. two games against each division opponent, each division plays one division in the other conference round robin, each team plays 6 pseudo-random teams in their own conference)

Assumption number 1: No home field advantage. There are two reasons for this one... First of all, it would make the model incredibly complicated and make the scheduling virtually impossible... Secondly, the home field advantage in the NFL is only worth about 1.5 points... so it's relatively small... The only situation in which I see this making a big difference is the playoffs...

Teams stay consistently good (or bad) throughout the year: No fluctuations in strength for injuries, momentum, giving up at the end of the season, etc.

A team has a % strength... the chance of winning is the ratio of Team A's % Strength vs. Team B's.
Example 1: Team A has a 95% strength and Team B has a 5%. Team A has a 95% chance of winning
Example 2: Team A has a 50% strength and Team B has a 25%. Team A has a 66.66% chance of winning
No Ties were allowed

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The only test "control" for this type of experiment is to see if we can duplicate historical results. Since there's no way to know who the "best" team was in any given year, the next logical thing was to determine if a reasonable win distribution could be discerned. Specifically, the thing I focused on was number of undefeated teams and number of winless teams. The number of undefeated teams was given more weight because winless teams tend to fight a bit harder and often against opponents with nothing to gain... On the other hand, undefeated teams fight hard for the undefeated record and their opponents fight hard to claim the undefeated "scalp"...

Based on the methodology outlined above, a set of 250 years worth of results was run... Here's the summary of results:

Strengths range from 40% - 60%
The "best" team won the supervowl 10 times (4%)
The average strength of the two teams in the superbowl was 13.292 (i.e. between 13th and 14th strongest teams in the league)
Out of the 500 years (250 per conference) the best team in the conference made the playoffs 234 time ( 46.8%)
There were no undefeated teams during that time period
There were no winless teams during that time period

Strengths range from 20%-80%
The "best" team won the supervowl 31 times (12.4%)
The average strength of the two teams in the superbowl was 8.428
Out of the 500 years the best team in the conference made the playoffs 234 time (71.8%)
There were no undefeated teams
There were no winless teams

Strengths range from 0% - 100%
The "best" team won the superbowl 33 times (13.2% of the time)
The average strength of the two teams in the superbowl was 7.462
Out of 500 years the best team in the conference made the playoffs 416 times ( 83.2%)
There were 4 undefeated teams
There were 149 winless teams

The 0-100% group appears to be fairly accurate (though it does have a somewhat high preponderance for winless teams)

Also tested:
Strengths range from 20%-80% but strengths are squared before comparing ratios (results in the theoretical best team having a 94.11% chance of beating the theoretical worst team)
The "best" team won the superbowl 37 times (14.8% of the time)
The average strength of the two teams in the superbowl was 6.234
Out of 500 years the best team in the conference made the playoffs 417 times (83.4%)
There were 3 undefeated teams
There were 25 winless teams

This seemed to be a pretty good sweet spot with undefeated teams and winless teams being fairly accurate:

What does all this mean?
If you're trying to figure out the best team, the NFL format is not the one to go with... With only 16 games, you're bound to get abberations... Here's some interesting ones

In 250 years the best team in the league failed to record more than 8 wins 16 times... In the same time period, the worst team in the league recorded 8+ wins 6 times

I've long contended that the NFL is skewed for maximum excitement and minimum accuracy due to the incredibly short season... These results seem to bear that out...

What a finale!

That was impressive last night. I really like how the Heroes fight scenes are fairly realistic and not hokey with a bunch of flying, jumping special affects (although I really would like to have seen an experienced Sylar vs. experienced Peter slugfest in "String Theory").

My personal theories:

Hiro's father's power is immortality (or really old age) and he's the Blue Knight that Hiro sees at the end.

Nathan's not dead (seriously, why wouldn't he just let Peter go and fly around up there... I'm a little bummed by the ending because of that)

Sylar's alive (this was clearly implied by the blood trail to the open manhole... I was sitting there telling my wife last night, "I don't care how sad I am about Nathan, I'm putting bullet after bullet in to Sylar's head"... BTW: Didn't Ted shoot Sylar before and Sylar took off... maybe he's got some form of pseudo-invulnerability... Other possibilities are that someone drug his body off for experimentation)

Angela Petrelli has a power (this is pretty obvious... although one wonders what it is? I'm pretty sure I read an interview that said it would be addressed by season end so I wonder if maybe I missed something last night... Maybe she influences emotions?)

Next year's villain is the "person worse than the boogeyman" that Molly refers to... I think this is a completely unseen person...

Anyother things I've left off?

Heroes season finale tonight... Woohoo!!

Tonight we get the big answers:

Will the bomb go off (and if so, by whom)?
Will Syler be stopped/killed?
What's going to happen to Lenderman's organization?
Will Nathan passively betray Peter?

I'm dying to find out...

While we're geeking out, I've gotten back in to Magic: the Gathering pretty heavily. The current set is fascinating in that it previews future sets in a fascinating manner. I think its interesting that no other game of this genre has had the lengthy, profitable success that Magic has had. Games like Yu-Gi-Oh and Pokemon have had some flash in the pan success. Other heavily hyped games (the Star Wars TCG anyone?) have also gone by the wayside. This is a genre for which the primary originator has managed to maintain its role as top dog for an impressive period of time (nearly 15 years).

Hurray for Greenspan

It takes a well respested, non-governmental person to get some balls rolling... let's hope Greenspan can do it.

I've been saying for awhile that our attitude towards immigration is inherently flawed. Certainly, the people who are here illegally (and let's not play word games by calling them "undocumented") should have some sort of penalty for that. However, I think it's important to keep things in perspective. The "crime" they are committing is a misdemeanor and its only a "crime" because of who they are ( i.e. its not JUST their actions like DUI and Murder... I am not even able to commit their crime... even if I wanted to).

There are alot of people who come here legally and then,  for a variety of reasons, fall out of the system. Many, if not most, of these cases are due to the highly restrictive nature of our immigration laws. We keep the number of immigrants down to a very, very small fraction of the total populace (less then .1% the last time I checked). We also have a tremendously ineffective guest worker program.

And why do we do this?

I think alot of people are just plain racist. There are people that talk about preserving our, "Way of life" and that just smacks of disguised racism or other bigotry (at least to me). Maybe those people are just unapolagetically xenophobic. Either way, we shouldn't be basing our decisions about immigration on those kinds of attitudes.

Alot of people point to the economy and say that aliens (legal or illegal) are a drain. This is patently absurd. It is largely driven by some false idea that there's a finite number of jobs in the country and that's simply not true. Additionally, for every cheap laborer that builds a house, there's a cheap house for you and I to buy...

Congress needs to have a serious discussion about the immigration system and what kinds of numbers we'd like to see coming in. The current system isn't just broken... It's not a system at all...

Tangential Note: Is it amusing to anyone else that Greenspan talking about Immigration warrants a headline spot right ABOVE Bernanke talking about the Economy ? I just find that amusing... Poor Bernanke :(

Heroes and the upcoming season finale

**SPOILERS LISTED BELOW**

Like most of my friends, I've become absolutely hooked on Heroes... Last night's episode was largely a "set-up" episode designed to get all the players into the right places prior to the bomb (or non-bomb as the case may be). However, there were some very interesting "revelations" and occurences.

New Dead Characters: Heroes writers are not shy about killing off characters. Last night saw the death of Lenderman, Thompson and Ted Sprague. There are other characters that are "on the chopping block" at the moment. D.L. Hawkins and Ando are both in trouble and Molly has a gun to her head at the moment. My guess is that none of them die but that's just a guess.

New Heroes: Molly was introduced last episode and we have strong implications that both of the Petrelli Parents have powers as well as Hiro's father. This "revolving door" of characters is clearly intended to keep the show fresh with new interactions for the core group (Peter, Claire, Hiro, Niki, Parkman). Also, NBC has announced a spin-off that will introduce new characters weekly with the viewers selecting the ones that will make it to the core show... interesting...

Resolution of plot threads: We've now had Suresh's backstory largely tied up and it appears that Niki and Jessica have (at least temporarily) resolved their issues. Nathan has definitively won the election (and with Lenderman dead he's free to do largely whatever he wants). We also now know what Sylar's goal is (become President) as well as some clues as to what is going to happen next week (surely a climactic Peter vs. Sylar confrontation).

New power twists: Most of the characters continue to grow more comfortable with their powers over time. D.L. demonstrates an aspect of his power that any comicbook fan could have guessed at but has never been hinted at on the show. Peter was able to make Claire invisible with him (an ability Claude never displayed). Peter is also getting more reflexive with his powers as well as better able to use them.

Questions unanswered:

• Who's going to blow up NYC: We've seen Peter control the radiation power so it seems entirely likely that Sylar is going to be the one to detonate the bomb. The only other possibility is that we have some mega-plot twist and it turns out to be neither of them but someone else (Terrorist, Plot by Lenderman, etc.). The corollary question to this is, "Will they actually stop the bomb?" to which I believe the answer is YES!
  
• Is D.L. going to die: I think this is highly unlikely. We know that in the future Sylar will (probably) kill D.L. Now obviously the future is mutable (witness the cheerleader being saved) but I'd bet that the next big turning point (the thing that keeps us from the "String Theory" future) is the events that stop the bomb next week. Also, if you pay attention to the previews, you see D.L., Niki, Micah and Molly all huddled together at some point in next week's episode.
• Is Jessica gone: This one is a bit muddier. I think we've seen a turning point in the Niki vs. Jessica saga but I would expect for the Jessica persona to appear again in a high stress moment.
• Is Sylar going to die: I personally think, "Yes", but its up in the air. My reasoning is that Sylar makes a somewhat staid and predictable villain. However, one of the things that's been largely left out, up to this point at least, is his "missing" powers. FBI agent Audrey indicates that he killed 8 (?) victims earlier in the series. We know one of them gave him his TK and one gave him his Cryokenesis. But that leaves several others. Some of those were probably "collateral damage" (remember the persons "forked" to the wall) but surely not all of them. It seems odd that they'd kill off Sylar without letting us in on the secret... Maybe he won't die in this episode but rather be put "on ice" to be brought back later (incarcerated, coma, etc.)
• What is Nathan going to do: This is a biggy. We know that in the future he blamed the bomb on Sylar (but it was actually Peter). This may indicate that the future has already been altered a little bit. We also know that he has a real dislike for Lenderman and a habit of playing both sides against the middle. I find it hard to believe that he's going to sacrifice his own brother and I'm inclined to think that he (along with Claire) are going to play big parts in helping Peter stop Sylar. Should be interesting though... Maybe the big change that's coming is that people see the fight and the world discovers that there's heroes out there but see three (including a newly elected congressman) fighting for good rather than a bomb go off for the forces of evil...
  

Ancillary plot threads: These are things that I've noticed and my wife and I have talked about but haven't really been brought out in the show.

• Was that really Ms. Petrelli telling Nathan to sacrifice Peter: Last week, it appeared that Nathan's mom was telling him that he needed to sacrifice Peter for the greater good. This seems somewhat out of character for the lady (though she has proven to be somewhat manipulative in the past). I'm inclined to think it was Candice and not Angela Petrelli. The other possibility was that she was telling Nathan something else and it was not what we assumed it to be (the writers kept the dialogue suspiciously non-specific).
• Where's the Haitian: Everyone else was carefully maneuvered into NYC last night. With the exception of the Haitian. He seems like a very useful person to have when fighting Sylar... Maybe that's the reason they didn't want him there (too easy a plot device?).
• Is Nathan really the son of the Petrelli's: I'm reading alot into the show here... But I thought it was interesting that EVERY 2nd generation hero has a pretty significant power "bump". Claire can heal from anything, Peter absorbs powers, Micah can make electronics do whatever he wants, Hiro can fold space/time. The exception here seems to be Nathan, whose powers appear to be more on par with the general 1st generation heroes (flight vs. phasing, hearing, melting things, strength, etc.). Certainly that is not a plot element they have focused on but it is an interesting trend with an interesting anomaly.
• Who were the other old generation heroes: Lenderman makes reference to allies... and the way he says it sure makes it sound like there's more than 3. We have pretty strong indications of Mr. Nakumora and Mr. and Mrs. Petrelli... But who are the others?
• Whose side is Mr. Nakumora on: This is a weird one. Claire's origin story clearly indicates a link between him and Lenderman (with a subtle tie in to the Petrelli's). Did their falling out occur AFTER that point? Or was their a falling out? Who are the people he's talking about who "lost their way"? We are really in the dark on who the players are for some of this.

Well... that's my (rather long and rambling) entry for Heroes... hope you enjoy.

I'm back...

It's been along time since I've written anything but the bug has struck me again... It's the political season and, as always, I'm curious. The moderate in me is pretty impressed by the field... You've got:

Hillary: Democrat who voted for the war and stuck around to defend it for a lot longer then her colleagues...
Obama: Seems to be fairly rational and is an outsider...
Edwards: Ditto
McCain: Always been a bit of a maverick...
Romney: Republican from Massachusetts...
Guiliani: Liberal social values meets fiscal Conservative values

On the downside, I don't actually like any of the candidates...

Let's leave politics aside for the moment, however, and talk about something that I've been pondering. It's little more than a thought exercise at this point but I think its interesting nonetheless.

If you could redraft the constitution, what would you change?

Here's my suggestions:
1) Add a parliamentary body to Congress: I hate, hate, hate this idea... but there's a reason it's number one on the list. I believe very strongly that a representative democracy is a heck of a lot better than a parliamentary body (where you don't vote for people but rather for parties). That being said, I think the unfortunate side affect of the representative democracy is an inevitable drift to a two party system... Additionally, a representative body is, by its nature, beholden to the states and often ignores national interest... My suggestion would be to add a 3rd congressional body of 100 members. They would be voted in by parliamentary procedure ( i.e. the populace would vote for parties and they would then put their representative in). Parliament would then have the duties that are the most "national" in function... Off the top of my head, this would include: Approving executive appointments, reconciling bills signed by the House and Senate, Budget authority, oversight authority. Budget and oversight would also stay with the house and the senate but a reduced emphasis.

2) Privacy rights: Whether you love it or hate it, Roe vs Wade was a poorly decided mish-mash of garbage... I'm not saying I'm pro-choice or pro-life... just that the Supreme Court relied upon an inferred right (privacy in this case) and then extrapolated it out to an absurd degree... I believe that privacy is particularly important and that the founders would have addressed it had they realized what the world was going to eventually be like... I think that this needs to be addressed at a fundamental level

3) The line item veto: I think this is probably a good idea with regards to the budget process... Never has the phrase, "Addition by subtraction" been so apt... Heck, Republicans were even willing to give this power to Clinton...

Those are the big three off the top of my head... Maybe I'll take a crack at rewriting some sections...