Saturday, March 16, 2013

Bitter Pill: Health Care In America


Steven Brill has written an invaluable piece of investigative journalism for TIME Magazine, Why Medical Bills Are Killing Us, that is a must read for anyone interested in understanding why a country that spends more than 27% more per capita than any other industrialized nation for its health care yet has millions uninsured, 60% of its personal bankruptcies caused by unpaid medical bills and fails to deliver the outcomes that should come with expending nearly one-fifth of our gross domestic product on this one basic service. 

Most of Brill's 24,105 word story is told through the medical bills of random Americans, people who suffered everything from a minor slip and fall ($9,418) to terminal cancer ($902,452) and other maladies in between. And through this storytelling, we learn about the wild discrepancies in how patients are billed, the gross mark ups hospitals charge for everyday items like ointment ($108 for a tube that costs a few dollars), niacin pills ($24 each off a retail cost of 5 cents) and gauze pads ($77 per box), and a system that includes few controls or disincentives for this type of usurious conduct.

If there is a villain in Brill's story it is someone few people have probably ever heard of - the "chargemaster"- a quintessential "man behind the curtain" whose spreadsheet of pricing determines what you are billed, for everything from the latest cancer drug to a simple Tylenol.  But here's the thing, what you are billed, or more accurately, what you, your insurer, or Medicare pays differs depending on who is writing the check - and therein lies the rub. An uninsured 64 year old person is charged more than $6,500 for 3 CT scans that the same patient, had she been a year older and covered by Medicare, would have been charged $825, and with little in the form of a co-pay instead of being obligated to pay the entire bill.  The article is littered with these examples, not just of the compare/contrast between costs charged to the uninsured (or the privately insured for that matter) and Medicare, but of the haphazard and hard to justify rationales for why hospitals, particularly non-profits, have operating margins (and executive salaries) that compare favorably with obscenely successful private corporations. 

When pressed to explain why its chargemaster fees diverge so wildly, the hospital executives Brill interviewed were either evasive ("the issues related to health care finance are complex for patients, health care providers, and government entities alike …") or hid behind patient confidentiality (even though Brill was not asking about specific patients, but rather, general billing procedures). But these charges have real world implications because of the enormous pressure applied to patients who are charged these exorbitant rates. A woman Brill profiles was handed a bill for more than $21,000 for an ambulance ride to a hospital and about three hours of treatment (most of it waiting to be examined) after she complained of chest pains which turned out to be a simple case of heartburn. This included several $200 tests (Medicare pays less than $14 for the same procedure) and $995 for the four mile ambulance ride.  It was not until the woman hired a "medical billing advocate" that the hospital halved her bill (although the ambulance company was not as generous). Of course, hospitals rarely advertise the fact that prices can, in some cases, be negotiated down if one has the wherewithal to dispute those charges (or the money to hire a medical-billing advocate, an industry whose ranks are sure to grow); however, nothing is guaranteed. One of the patients Brill profiled was sued by her hospital over a $7,400 bill and was unwilling, through court-ordered mediation, to reduce the charges. Ultimately, the woman was put on a $20/week payment plan for six years. Another woman, a widow whose husband died of cancer, went through more than a year of negotiations with all manner of health care providers, doctors and hospitals over what was initially a more than $900,000 bill, getting discounts and waivers that whittled her final cost down to about $142,000, a fee she covered mostly by selling a piece of inherited property and cashing out a life-insurance policy. 

Those chargemaster costs also serve a more surreptitious purpose. As Brill illustrates, non-profit hospitals use these inflated figures as a means of promoting their charity care in places like Mike Allen's Playbook, a daily "tip sheet" published by the online site Politico where the American Hospital Association lobbied against a bill in Congress that would have cut hospital payments. The AHA claimed such a law would jeopardize more than $39 billion its members provide in charity care. As Brill notes, that figure is based on the wildly inflated chargemaster rates, which, if compared to what Medicare pays, would shrink that figure down to just $3 billion, or less than one-half of 1% of those hospitals' combined annual revenue. With operating margins that range between 10-12% and not-uncommon seven-figure salaries for its high-level executives, surely, Brill argues, the idea that trimming what hospitals charge their patients would not be unduly burdensome. 

Of course, hospitals find many places to wring profit from their work. Whether it is purchasing doctors' practices or its competitors, hospitals can bargain from a position of strength when it comes to reimbursement rates it offers insurance companies. Hospitals also find great value in the equipment they use. For example, a hospital can recoup its costs on a CT scanner within a year and then pile on pure profit over the rest of the productive life (estimated to be 7-10 years) of those machines. Moreover, tests like CT scans are used far more liberally in the U.S. and at a higher cost than in other countries. To take one example, Brill mentions that even Medicare, which reimburses at a significantly lower rate than private insurance, still pays four times more for a CT scan than what is charged in Germany even as doctors in the U.S. order 71% more of these tests. 

When it comes to health care, there are many points along the continuum where the industry sticks its snout in the trough. Medical device makers turn enormous profits on everything from run of the mill walking canes ($21.97 billed to Medicare for a product that goes for $12 on Amazon) to neuro stimulators (wholesale price? $19,000. Price billed to patient? $49,237). A cancer drug Brill estimates was made, tested and marketed for between $300-$500 is sold to hospitals for $3,500, who then turned around and bill patients more than $13,000 for a dose. Like those non-profit hospitals, drug makers like to tout their philanthropy, but as Brill notes, for a company like biotech giant Genentech, which claims to have given away $2.85 billion in free medicine since 1985, that is based on the price it sells its medications for, not what it costs to produce. Looked at through this lens, that figure represents less than 1% of the company's sales, not nothing, but not much to crow about either. Brill also debunks the argument that regulating what drug companies can charge for their products would affect their investment in research and development by noting that most drug companies generate healthy profits even in places like Europe, which has far more stringent price controls and that net revenue, to take one example at cancer drug maker Grifols, was more than 32% in 2012 - a figure that includes its R&D and a sum that would be marginally impacted by tighter controls over what it could charge for its drugs here in the U.S. 

All of this matters because no other single industry hovers over our economy like health care. Not only does it account for nearly 20% of our economy, it is a massive employer projected to have 10 of the 20 fastest growing occupations between now and 2020. Even in a place like New York City, which is synonymous with high finance, twice as many hospitals (8) as banks (4) are among its 18 largest private employers. As our population ages and the broad expansion of coverage under the ACA take root, how health care is delivered, at what cost and how it is paid for will become larger and larger issues that will require thoughtful decisions divorced from the hysteria of "death panels" and "socialized medicine." 

When it comes to recommending changes, Brill argues that controlling cost is the most obvious place to look. As he points out, to do so would be to accept what happens in reality anyway -  hospitals collect anywhere from 20 to 60 cents on every dollar they bill anyway - largely because of the baked in "discounts" to its chargemaster fees given to insurers and Medicare. The only people paying full price are the uninsured, who, not coincidentally, are least likely to be able to afford the cost of care anyway. Debt hangs over these unfortunate souls and cripples them while hospitals farm out collections to agencies with little motive to cut a deal. Even when the ACA becomes operational, the law does little to address spiraling costs. While insurers must justify large (more than 10%) increases in their premiums, doctors and hospitals are not under the same obligation and are free to continue using their exorbitant chargemaster rates. This, combined with the creeping monopolistic tendencies of hospitals, will likely result in higher premiums, an outcome that will significantly mitigate the value of having all of those additional people in the insurance pool.  

As the largest consumer of health care, Medicare is another obvious place to look for savings, but it is here where Brill's reporting is most disappointing - not because of any defect in his writing, but rather, because solutions that seem common sense, such as allowing people under 65 to buy into the program, perhaps at some modestly higher levels, or permitting the program to negotiate over drug prices, are non-starters. This is a key point because the government is going to be subsidizing the private insurance of a lot of people in their 50s and early 60s starting next year when the ACA is fully rolled out. Brill argues that it would be better (and cheaper) to take that money and re-direct it into lowering the Medicare eligibility age as opposed to raising it, which would put taxpayers on the hook for subsidizing people who are more expensive to insure on the private market. As for drug prices, while Medicare's hands are tied, Brill mentions that when a group of hospitals wrote to Sanofi, advising the drug maker they would no longer use one of their cancer treatments because of its cost, which was more than twice as much as another drug that was just as effective, Sanofi quickly backed down and lowered the price on its medication by half.  Brill estimates allowing Medicare to bargain over drug prices would save the program up to $250 billion over 10 years. 

Ironically, many of the market efficiencies that conservatives lionize are far more prevalent in Medicare than private insurance. As Brill notes, quality control and metrics on everything from call center wait times to the percentage of claims that are improperly denied (a ridiculously low 1%) are all aggressively monitored in Medicare, whose administrative costs are about two-thirds of 1%, while a private insurer like Aetna has overhead costs of 29%. Wringing the same efficiency out of the private insurance world would also be a big step toward lowering overall costs. More curious is Brill's support for tort reform, a bĂȘte noire of the right wing but a policy that has already been enacted to mixed results in a number of states throughout the country. Other suggestions, like levying a 75% tax surcharge on non-doctor hospital salaries above $750,000 and "outlawing" the chargemaster are pie in the sky, though in lieu of eliminating the chargemaster, "truth in billing" and closer scrutiny of non-profit hospitals who hand out multi-million dollar compensation packages to its executives might be feasible. 

Ultimately, Brill's deep dive into our health care system shows what happens when what is considered a fundamental right in the rest of the industrialized world is profit driven and treated like a commodity in our country. Everyone skims their profit off the top as costs pile up before landing in the patient's lap, either in the form of a heavily padded bill or an insurance premium that goes up and up with each passing year. Our leaders in Washington would do well to read Brill's piece, lower the temperature on their rhetoric and realize that improving efficiency and providing quality health care are not mutually exclusive; indeed, for our health care system to survive, they will need to work hand in hand. 

Thursday, March 14, 2013

(Almost) Everything You Need To Know Before The Mad Men Season Premiere


As we prepare for Mad Men’s April 7th return, here is a handy list of links to episode-by-episode recaps from Season 5, full season recaps for Seasons 4 and 5, character commentary and a few odds and ends to whet your appetite for the Season 6 premiere:

Season 5

Season Recap:

http://scarylawyerguy.blogspot.com/2012/12/are-you-alone-recap-of-mad-mens-fifth.html

Episodes 1&2 – “A Little Kiss”


Episode 3 – “Tea Leaves”


Episode 4 – “Mystery Date”


Episode 5 – “Signal 30”


Episode 6 – “Far Away Places”

http://scarylawyerguy.blogspot.com/2012/04/im-roger-sterling-i-want-to-take-lsd.html

Episode 7 – “At The Codfish Ball”


Episode 8 – “Lady Lazarus”


Episode 9 – “Dark Shadows”


Episode 10 – “Christmas Waltz”


Episode 11 – “The Other Woman”


Episode 12 – “Commissions & Fees”


Episode 13 – “The Phantom”

http://scarylawyerguy.blogspot.com/2012/06/mad-men-season-five-finale-are-you.html

Character Commentary

“Don Draper Is A Square”


“Megan Draper Must Die”


Peter Dyckman Campbell, 32


The Tao of Kenny Cosgrove

http://scarylawyerguy.blogspot.com/2012/05/lets-take-em-both-tao-of-kenny-cosgrove.html

Season 4 Recap:


12 Essential Mad Men Episodes

http://scarylawyerguy.blogspot.com/2012/01/12-essential-mad-men-episodes-and-4.html

Saturday, March 9, 2013

Obama Sues For Peace


In the past few days, President Obama has (literally) broken bread with a dozen Senate Republicans and the Chairman of the House Budget Committee, Paul Ryan. The media is thrilled to report that the President is reaching out to Republicans, bonding with them, and trying to find middle ground to come up with the elusive "grand bargain" that obsesses the Inside the Beltway crowd from the broadcast studio of Morning Joe to the editorial page of The Washington Post. Lost in all of this reporting is that with each fiscal skirmish, the pieces of that grand bargain are falling into place, and each time, the deal gets worse and worse for progressives.

The dirty little secret of budget politics is that not only have the Republicans run circles around the President, but the total savings that most "smart people" in Washington claim is needed to stabilize our debt in the long-term ($4 trillion) has already essentially been reached. What the President is being baited into is the final nail in the fiscal coffin that results in his giving away cuts in social welfare programs in exchange for closing tax loopholes that will quickly reopen not long after the ink is dry on his signature. 

If you're scoring at home (and you should be), there have been two huge cuts in government spending over the past 2 years. The first, enacted in 2011 as part of the debt ceiling deal, cut roughly $900 billion over 10 years, and the second (the so-called "sequester"), lopped another $1.2 trillion-$1.5 trillion off our long-term spending. [1] Meanwhile, there has been one tax increase (which wasn't really a tax increase - http://scarylawyerguy.blogspot.com/2013/01/the-gop-is-not-in-disarray.html) that will yield roughly $620 billion over 10 years while permanently locking in Bush era tax rates for just a hair more than 99% of all Americans. The final tally? Budget cuts: $2.1 trillion - $2.4 trillion vs. tax increases: $620 billion, or a roughly 3.5:1 to 4:1 ratio and a grand sum total of between $2.7 trillion to $3 trillion in long-term aid to our deficit picture, and that's without adding in savings on future interest, which gets that number closer to the magic $4 trillion mark. 

This simple arithmetic is important to remember. Republicans claim that the President "got" his tax increase at the beginning of the year. Of course, that tax increase was far less than it could have been. Instead of letting all the Bush tax cuts expire, which would have raised $4 trillion in new taxes over 10 years, we are raising less than 20% of that total ($620 million). Meanwhile, Republicans did not exactly fight for the extension of the payroll tax cut, which disproportionately hit the lower and middle class, but made sure an obscenely high exemption for estates was locked into place (and with yearly adjustments for inflation!). 

Against this modest pinch to the very richest in our society, the Republicans have extracted cuts to our domestic spending so severe that as a share of our overall federal budget, domestic spending is at it's lowest level since the 1950s. Infrastructure investment has all but dried up and bills that were once routinely passed in areas such as agriculture and aviation are now dragged out in a legislative Bataan Death march before passage. When the President proposed establishing universal pre-kindergarten, at a modest cost (and wonderful return on investment!) of $98 billion over 10 years [2], Republicans scoffed, even though we spent more than that amount in less than any one year of our occupation of Iraq. 

And now, Republicans can see the end game come into focus. Having relentlessly beat the drum about the need to cut spending (never mind this austerity was nowhere to be found when George W. Bush was President) and the long-term risk to our economy over debt and deficit (ditto), the Republicans have smartly caught Obama in a pincers movement - no longer is there talk of a jobs plan, infrastructure spending or homeowner mortgage relief, rather, it is a race to see who can more sharply "curb" the growth of those pesky "entitlements" (that we pay into with every paycheck). 

Republicans have already succeeded in getting Obama on record as supporting cuts, prodding him to cut deeper and deeper while "banking" these offers as the new shifting line for where any deal gets cut. Look on the White House website and you will see the President's call to shift the calculation of Social Security benefits to something called "Chained CPI" [3] which would reduce benefits by $340 billion over 10 years [4], never mind the fact that Social Security is solvent (i.e., can pay out 100% of its benefits until past 2030) or that by simply removing the FICA ceiling we would ensure the programs solvency, essentially forever. Instead of seeking equity and fairness in this program, the President of the party that created the single most successful anti-poverty program for the elderly now supports cutting it. Baffling. 

But the bigger problem is that Obama does not even draw decent negotiating lines in the sand. Even if he pitched the idea of removing the FICA cap entirely but negotiated it down to capping it say $500,000, or even $1,000,000 (it's currently $113,000 and change), or creating a "donut hole" so the current cap stayed in place but was re-triggered at a higher level (see above), either of those solutions would not harm wealthy wage earners anywhere near what switching to Chained CPI will do to poorer seniors who rely on Social Security. In other words, the President is playing entirely on the Republicans side of the field; conceding that cuts to Social Security is the only option available.  

Meanwhile, the Republicans continue to press for drastic changes to Medicare. Paul Ryan will introduce yet another iteration of his "voucher" proposal to turn what is a guaranteed right for all Americans at age 65 into a private health insurance program that will require the elderly to purchase private health insurance; while the President has said he does not currently support raising the eligibility age to 67, he has flirted with the idea in the past (and is also known to back down from his positions, just check his promise to raise taxes on anyone earning more than $250,000). And while battle lines are being drawn over Medicare, in Florida, Governor Rick Scott got the Obama Administration to agree to allow him to privatize the delivery of Medicaid as a condition of accepting funds under the Affordable Care Act - a dangerous harbinger that may lead other Republican governors to seek similar exemptions, especially since studies show that "government run" Medicare/Medicaid have far lower overhead/administrative costs than private insurance.  

What Obama wants in return is the elimination of various deductions and loopholes in the tax code that largely benefit the wealthy and multinational corporations. There is widespread support for ending many of these benefits, particularly ones that allow billionaire hedge fund managers to pay 15% tax on something called carried interest (google it) and enormous oil and agricultural corporations to reap billions in tax credits. Of course, those loopholes don't appear out of thin air. Indeed, the same call to "clean up" the tax code resulted in a massive reform in 1986, but slowly but surely, lobbyists have slipped in sweetheart deals for their overlords, there is no reason to think that even if these loopholes are closed today, they won't reappear in the future. The difference is, there will be far less political will to bolster reduced social insurance benefits.

Not only is Obama getting boxed in to cutting a deal that is bad politics, it is bad policy. As noted, Social Security is not "broken" to begin with, but even if one were to accept it needed to be tweaked over the medium to long-term, lifting the FICA ceiling is a far more equitable way of doing it than Chained CPI (with the added benefit of making the program solvent forever). As to Medicare, allowing the program to negotiate lower prescription drug prices and continuing to emphasize outcome-based performance measures for doctors is a better alternative than either vouchering the program (which runs far more efficiently than private insurance plans) or requiring near elderly people to continue paying for costly private insurance.  As the journalist Steven Brill has pointed out, there is a far better argument to be made for lowering the Medicare eligibility age than raising it [5].

But all of this appears lost on a President who is now throwing himself at any Republican who shows even the vaguest willingness to negotiate with him. Sadly, we've seen this movie before. After being elected in 2008, Obama tried to get Republican support for his stimulus bill by making 40% of it focused on tax cuts. He got no Republican votes in the House and three in the Senate. When the Affordable Care Act (an idea that originated in a right wing think tank) was being debated, Obama held out hope for months on end that first Chuck Grassley, then Olympia Snowe, might sign on to some sort of bipartisan bill, only to have them each back out at the last moment. 

Do not be surprised if the same thing happens again. Republicans will lead Obama around by the nose and if no deal is cut, it is of no consequence to them - they have already locked in more than $2 trillion in spending cuts with modest tax increases, have the President on record supporting cuts in Social Security and Medicare, gerrymandered House seats to such an extent that only an electoral tidal wave will sweep them out of power and Senate seats all over the country are being defended by Democrats in 2014 with their grasp on control of the Senate up in the air. Not bad for a party without a leader, that holds just one house of Congress and hasn't had more than 45 Senators in the other since 2009. 

Endnotes

[1] Estimates of the sequester's long-term effect vary between $1.2 trillion to $1.5 trillion. http://money.cnn.com/2011/08/01/news/economy/debt_ceiling_breakdown_of_deal/index.htm. 

[2] http://www.americanprogress.org/issues/education/report/2013/02/07/52071/investing-in-our-children/

[3] http://www.whitehouse.gov/blog/2013/02/21/balanced-plan-avert-sequester-and-reduce-deficit

[4] http://cbo.gov/sites/default/files/cbofiles/attachments/Government-wide_chained_CPI_estimate-2014_effective.pdf

[5] http://www.cjr.org/the_second_opinion/brills_big_breakthrough.php?page=all

Thursday, March 7, 2013

Girls Season One


I just watched the 1st season of Girls and decided the show was neither the groundbreaking work of television its fans proclaimed it to be, nor the torpid, entitled version of Sex and the City refracted and warped through the eyes of an upper middle class liberal arts snob that its detractors said it was. Rather, it was a decent, but not particularly exceptional piece of story telling about a group of mostly unlikeable characters doing what many young people do after college - drift aimlessly and without any particular direction. And for that, I am not really sure what all the buzz is about. In the same way movies like Reality Bites and Singles and TV shows like Friends captured the post-collegiate ennui of Generation X, Girls does for Millenials. 

Of course, the show's title is deliberate, the main characters may be women, but their behavior, which is often self-centered, narcissistic and uncaring, reads "mean girls." Hannah, Marnie, Jessa and Shoshana are just hard to root for. Hannah has lived off her parents' largesse for 2 years while working on a book she is not close to completing, while roommate Marnie has somehow amassed a Manhattanite's wardrobe on an assistant at an art gallery employee's salary. Jessa is a free spirited Brit who breezes back into town and moves in with distant relative Shoshana, a 22 year old virgin who text-speaks her way through conversation and could deconstruct a coffee order for 5 minutes before making it. 

The men of Girls are no better. They are uniformly boys, be they of the 20something variety, like Marnie's insufferably sensitive boyfriend Charlie or Charlie's snarky sidekick Ray, a coffee barista by day and struggling musician by night. Older men are middle-aged cliches like Hannah's handsy boss Rich, who casually molests his female employees, Jeff, the father of Jessa's babysitting wards, a neutered house husband who makes a clumsy pass at her at a hipster party and Hannah's father Tad, forever seeking to protect his precious "Hannah Banana." Indeed, the only guy offered some depth is Hannah's primary love interest Adam, a dark and odd person, who, to the writers' credit, turns out to be a far more complex character than the shock value sex acts and peccadilloes he engages in that define the show's first few episodes. 

But the show's defining feature is its air of uncertainty. Each character is unsure of their decisions, like people testing the ice on a frozen pond fearing if they plant their feet too firmly they will fall in. Marnie is miserable with Charlie right up until the moment he breaks up with her, at which point she wants him back, until midway (literally) through their make up sex, when, oops, she decides she doesn't want to be with him, until she sees him with another woman, and so on. Hannah claims to be a writer, but does little writing, instead toggling between chasing Adam like a schoolyard crush to misreading him and his intentions when Marnie moves out of their apartment and he offers to move in; all done, naturally, while Hannah artfully dodges full-time employment. 

To be honest, it all amounts to so much navel gazing that I cannot believe anyone who has crossed that particular life rubicon found it interesting, much less worthy of awards. The stakes could not be any lower for Hannah and her friends and not because some of the subject matter is minor, but rather, because of the equivalency, attached to decisions both great and small. Shoshana is set up in a NoLita apartment while attending college and seems to have no greater concern in her life than being deflowered. Jessa, on the other hand, is blasĂ© about getting an abortion, but more than happy to seduce a former boyfriend simply for the sake of being able to prove she can. Curiously, by the end of the season, she has married herself off to a venture capitalist living in a swanky high rise complete with a $10,000 rug not long after admonishing her former employer that she did not need any life advice. What could possibly go wrong? Hannah does not have a steady source of income, but does have HPV, which she comes to terms with in a tweet, so there's that. Of course, Marnie, the only one of the four with a stable job, is portrayed as an uptight control freak incapable of relaxing and is mocked for planning out the next steps in her life. For this crowd, thinking adult thoughts is a bad thing and it is not until Marnie is stuck crashing at Shoshana's apartment and gets bombed at Jessa's surprise wedding that she finally "loosens up" (i.e., lives in the moment, without concern for what tomorrow may bring and <gasp> kisses a chubby nerd).  

The show offers no great insight into life other than the fact that 20somethings smash their emotions like toddlers and are scared shitless of adulthood, which is understandable, considering their role models are, by and large, no better than they are. I do give Dunham credit for her unflinching ability to expose her insecurity and self-loathing. The rawness of scenes that show her as venal and self-absorbed could easily be mocked, but they are written (and performed) in a way where you feel pity, not just for Hannah's cluelessness (giving herself a pep talk before a date back in her hometown while reminding herself that simply because she lives in New York makes her more interesting than people in her hometown) but for her loneliness (telling Marnie she can't say anything that will be more harmful than the fact that she [Hannah] hates herself).  You would offer the poor woman a hug if she wasn't so insanely consumed with her own pettiness and unwillingness to get her act together. 

But self-loathing is one thing when it's played for comedic effect by the Larry Davids of the world; it rings hollow when expressed by someone whose life appears unaffected by anything other than what Twitter calls "first world problems." And here I think the criticism of Girls is most on point. Being in your mid-20s and living off your parents' dime while you figure out what you want to be when you grow up is a quintessential problem of privilege that not only speaks to a very thin slice of the world, but underscores the smallness of what the show traffics in. There are no great struggles to overcome, no hurdles to leap, just an incessant avoidance of learning the ropes of adulthood or, as the tag for Season 2 put it, "kinda, sorta getting it together." For people on the other side of that time of life, or Dunham's contemporaries who are not fortunate to have their parents pay their cell phone bills, who know what the "adult" world looks like, with its disappointments and responsibilities, narrowing of options as you age and uneasy embrace of the decisions made, the tone of Girls wears quickly. Oh to be 24 and have nothing to worry about other than proper text etiquette or nursing a petty grudge. And those problems that seem more consequential to an older viewer - of abortion or marriage or drug use - are handled with the same concern as the small ones, which is to say, none. 

Make no mistake, Dunham's achievement is impressive, she has captured a particular moment in a particular type of person's early adulthood, it just was not, for me at least, a particularly interesting story to watch. To her credit, Dunham is insightful enough to not be too taken in by her own skill - she is, as her character puts it, a voice of a generation - to elevate her any higher would be inaccurate, but also unnecessary, her work speaks for itself. 

Sunday, March 3, 2013

The Fall Of The Evil Empire


If you live in the New York-New Jersey area and follow sports, no team casts a larger shadow than the New York Yankees. Since the Red Sox famously sold Babe Ruth to the Yankees in 1919, the Bombers have dominated Major League Baseball in a way no other team in any other American sport has, winning 27 World Series, 40 American League pennants and, since the advent of division play in 1969, 18 division titles. In those more than 90 years, the team has only experienced two truly fallow periods, the first, in the mid-1960s, lasted about a decade and was the result of an aging roster unreplenished with younger talent and a failure to see the ways in which the influx of African-American and Latino players was impacting the game. The second began in the early 1980s and lasted through the mid-1990s, a period of ownership drift, poor free agent signings and a lack of minor league development. 

As to that first period, the Yankees ultimately re-tooled, taking advantage of the new rules around free agency to sign players such as Reggie Jackson and Catfish Hunter while developing and nurturing young talent like Ron Guidry and Thurman Munson. The Yankees most recent run began in much the same way, by cultivating its farm system and, as those players matured, surrounding them with in-their-prime free agents. The Yankees' decided revenue advantage stemmed largely from the creation of its own cable network - the YES Network, a money making enterprise that allowed the team to outbid anyone for a player they truly wanted [1]. This model has served the Yankees well.  Beginning in 1996, the team won 5 World Series titles, appeared in 2 others and only missed the playoffs once (2008). 

But like bankruptcy, which someone once defined as going poor slowly and then really fast, the "Evil Empire" is about to hit the skids and experience its third prolonged stretch of failure. The reasons for this are not dissimilar to those that caused their two prior periods of mediocrity. Let's examine why the Yankees are primed for a fall:

The Spending Gap Has Shrunk: Perhaps no greater change in the baseball economy has taken away the Yankees advantage quite as much as the one-two punch of the luxury tax and regional cable deals. On the one hand, the luxury tax penalizes teams whose payrolls are above a certain threshold by requiring them to pay money back to the other teams in the league. This money improves competitors' bottom lines and creates greater financial parity. In recent years, with the death of George Steinbrenner, the team has shown less of an inclination to pay the luxury tax, curtailing its willingness to spend big money on free agents while still being locked into longer-term deals with its aging stars (more on that later). 

But the bigger change is one the Yankees spearheaded - the creation of sports networks. Now, mid-market teams like the Cincinnati Reds, who 15 years ago would have lost a once-in-a-generation talent like Joey Votto to free agency, have the capacity to lock stars into long-term contracts before they becomes free agents, so the Yankees don't even get a chance to bid for their services. Other teams have done the same thing, including the Rockies (Troy Tulowitzki), Brewers (Ryan Braun) and Nationals (Ryan Zimmerman). With fewer marquee free agents available, the Yankees can no longer rely on a pipeline that at one time brought them players like CC Sabathia, Mark Texeira, Mike Mussina, Johnny Damon, Jason Giambi, Hideki Matsui and Alex Rodriguez [2].

An Aging (and Expensive) Roster: The Yankees roster is old - really old, especially in today's game, denuded of most forms of performance enhancer and where high level talent blossoms at every younger ages. The Yankees have produced few home grown stars since the mid-1990s, when Derek Jeter, Andy Pettitte, Mariano Rivera, Jose Posada and others came up through the minor leagues. The average age on the Yanks' 25-man roster is almost 32 [3] and includes pitchers like Pettitte (41), Kuroda (38) and Rivera (43!), who are expected to contribute significant innings while everyday players like Jeter (39), Texeira (33) and Kevin Youkilis (34 and keeping 3B warm until A-Rod, himself 37, returns from hip surgery) are all part of the everyday line-up. While this might not have been pause for concern 15 years ago, when, for example, the Yanks let their closer leave and seamlessly plugged Rivera into that role, the team has not developed farm system depth behind its aging talent and those young players they have cultivated, like Joba Chamberlain, Phil Hughes and Brett Gardner, have not performed at a level to keep the team competitive [4].

The team's payroll is also bloated with long-term contracts paying players on the downside of their career a lot of money. In addition to the $114 million owed to A-Rod for the next 5 years, Mark Texeira is owed $90 million and C.C. Sabathia is owed $91 million over the next 4 years and Derek Jeter is making $17 million in the last year of his current contract. With management reluctant to spend big, the team may be reluctant to re-sign the few quality younger players they do have, like Robinson Cano and Hughes, or, in a fit of irony, get outspent by one of their rivals for them. 

Lastly, because free agency is not as fruitful as it once was, the team can't afford to miss on trades like the one it made last year, moving top catching prospect Jesus Montero to the Mariners for starting pitcher Michael Pineda, who has yet to throw an inning for the team due to injury. The limited number of tradable minor league players also hampers the team's ability to pull off larger trades, like the one the Nationals made for Gio Gonzalez before the beginning of last season. The Nats, who had built one of the best farm systems in the league, were able to offer the Athletics four quality prospects in exchange for Gonzalez, a young lefty who had already shown flashes of brilliance but the A's were not going to be able to sign long-term. The Nats not only got an outstanding young pitcher, but by immediately signing him to an extension, are keeping Gio off the free agent market until 2016. The Yankees simply do not have the players to pull of a deal like that one.

The upshot is that the Yankees are pinched on both ends. Their major league roster is littered with expensive contracts for past-their-prime players, but the farm system is devoid of the type of talent that the team could use to replace them. The lack of tradable prospects also impairs the team's ability to get younger, proven, major league talent and because teams can now lock up their best players before they become free agents, the Yankees can't outbid its rivals for them.  

Other Teams Have Caught Up: Te Yankees have been a virtual shoo-in for the playoffs since 1995, but its competitive gap, which reached its apex in 1998, when the team went a jaw dropping 125-50 (regular season and post season) in its romp to the World Series, has narrowed considerably. Small market teams like the Marlins and Rays have made runs to the World Series with young players not yet at their peak, while other teams like the Rangers, Cardinals, Giants and Tigers have mixed young and old to stay competitive. Still other teams like the Phillies, Angels and Red Sox have cribbed the Yankees model and spiked payroll to reach (and win) the World Series. Still others, like the Nationals and the Blue Jays, who pulled off a massive off season deal to bring in major league stalwarts like Jose Reyes and Mark Buerhle, are loaded with rosters featuring players nearing their peak and locked into contracts that will keep much of their rosters together for the next few years [5]. 

When you put all these factors together, the logical conclusion is that not only will the Yankees near two decades of dominance end, but the team may not be particularly competitive for the next few years. The team's starting pitching is old, its bullpen mediocre and its everyday roster dotted with players earning big money on the downside of their careers. No team will take on, say, A-Rod's near $30 million a year contract and Jeter, at 39, and coming off a broken ankle, cannot be expected to perform as he once did. But more distressing for Yankees fans should be the fact that neither short- nor long-term solutions are in the offing. Free agency is no longer a reliable method of replenishing its roster and its spending advantage is not what it once was. The Yanks farm system is ranked somewhere between 10th and 15th out of 30 teams, but not every prospect pans out and few are close enough to major league ready to make an impact in 2013, or 2014 for that matter. Meanwhile, rosters in Anaheim, Detroit, Tampa Bay, Texas, and Toronto all look better on paper and younger teams like Baltimore and Oakland are also ripe for sustained playoff contention.

Yankees fans should be prepared for the fact that the team will struggle to make the playoffs, not just this year, but for the foreseeable future, as the Bombers make the pivot away from being an old, slow team to a young, faster one capable of another run of dominance. Unsurprisingly, few tears will be shed outside of the greater New York metropolitan area. 


Endnotes

[1] Rupert Murdoch's FOX empire just bought a 49% stake in YES that values the channel at $3.8 billion. http://www.bloomberg.com/news/2012-11-20/news-corp-to-buy-49-of-yes-network-with-option-for-80-stake.html

[2] I know, A-Rod was not technically a free agent signing; however, when he was dealt to the Yankees, only one other team had the financial wherewithal to absorb his $25 million a year contract. Regardless, had A-Rod stayed in Texas for the addition year or two before his opt out, the Yankees would have still been only one of two teams able to afford his services. 

[3] http://waswatching.com/2012/12/17/yankees-2013-opening-day-roster/

[4] Ironically, two of the established stars the Yankees could have relied on to bridge talent gap, Rafael Soriano and Russell Martin, both opted not to re-sign with the Yankees. 

[4] For example, the Nationals essentially have their major league roster for 2014 *and* 2015 already locked up: http://articles.washingtonpost.com/2013-01-15/sports/36384639_1_nats-mike-rizzo-division-series

Saturday, February 23, 2013

Reports Of The GOP's Demise ...


The idea of the Republican Party, what it stands for and what it hopes to accomplish, is grist for the pundit mill these days. In the span of 3 weeks, TIME Magazine had two potential heirs to the GOP throne on its cover - New Jersey Governor Chris Christie and Florida Senator Marco Rubio. On a recent episode of "Up With Chris," a panel discussed whether the GOP was even worth saving. The RNC has commenced an after action study on the 2012 election and a recent cover story in the Sunday New York Times Magazine asked "Can the GOP be saved from obsolescence?" Implicit in these stories and commentary is the idea that the GOP must soul search, recognize it is losing the demographic battle for the future of the country, soften its stand on issues like gay marriage and abortion and stop being seen as the party out to protect the wealthy if it has any interest in again governing the country.  

But this analysis is asking the wrong question because it presumes that the GOP, at least in its current iteration, thinks it is losing. I submit that, rhetoric about not being the "stupid party" notwithstanding, the GOP is perfectly happy with its position at both the federal and state level.  The dirty little secret of politics is that the Age of Obama has been very good for the Republican Party, largely tied to their landslide win in the 2010 election, a victory which is anomalous in recent cycles, but whose importance grows with each passing day. 

Consider politics in Washington after 2010. The GOP took control of the House of Representatives and broke the Democrats' brief run of filibuster-proof power in the Senate. Since then, Republicans have mastered the art of economic terrorism, extracting compromises from Obama at every point in the budget and debt ceiling process. The result? Domestic spending is at its lowest level since Dwight D. Eisenhower was President, the mainstream media has completely bought into the idea that substantial cuts in entitlements spending must be made to shore up our long-term finances (never mind the fact that much of our economic stress was caused by policies these same Republicans supported when George W. Bush was President), and even the President has floated offers to reduce Social Security payments (Chained CPI) and flirted with the idea of raising the eligibility age for Medicare (reported as part of the 2011 debt ceiling negotiation). 

And while they are advancing their agenda of smaller government in real and actual ways under Obama that never happened under Bush, Republicans are also fighting successful rear guard actions. The punditocracy has made great hay over the fact that Republicans voted for tax increases at the beginning of this year, but even that deal set threshold rates for the highest tax bracket above what they were when Bill Clinton was President and maintained a still low dividend and interest rate for the very wealthy. Meanwhile, the reduction in the payroll tax rate was allowed to expire, resulting in a tax "increase" for tens of millions of middle and lower-middle class Americans. In short, the higher tax rate pinch is felt by fewer people at a higher level of the income ladder who can easily afford it while the payroll tax cut expiration eats into the paychecks of everyday Americans struggling to get by. 

Over in the Senate, the 60 vote threshold to move any piece of legislation or nomination has become normative behavior because Democrats refused to tighten filibuster rules, emboldening Republicans to take the unprecedented (literally, had never happened in our more than 235 year history) step of blocking a vote on President Obama's nominee to lead the Defense Department. Meanwhile, grandstanding on Benghazi, which has become a sort of Rorschach of GOP paranoia, continues unabated, and newly minted "Tea Party" Senator Ted Cruz has maligned the character and service of now-Secretary of State John Kerry and presumptive Pentagon head Chuck Hagel. The selection of Jack Lew as Treasury Secretary has languished even as that critical Department has been without an appointed leader for almost a month and nominations to the federal bench still move at a glacial pace. And for this obstruction, not only do Senate Republicans pay no price, they are well positioned to gain seats in 2014.  

And as we look forward at the national level, in less than a week, Republicans will accomplish, through the strenuous effort of doing nothing, yet another massive contraction of discretionary domestic spending through the sequester. While some point to the cuts that will also take place in defense spending, they must be viewed in a much different context than the other domestic spending cuts. The Pentagon's budget has risen by roughly 50% since 2001; the sequester will trim about 7% annually from its current level, which is sort of like losing a pound after you've been declared morbidly obese. Unsurprisingly, the other programs that will see a similar cut have not had that level of growth over the past decade. Indeed, the funding levels of most programs that will be hit by the sequester have barely kept up with the rate of inflation, making those reductions far more painful than that the drop in the bucket at the Pentagon. 

The view from the state level is even more favorable for the GOP. Those 2010 landslides not only handed many Governor's mansions to the GOP, but control over both houses of state Legislatures. A consolidation of power that has been put to devastating effect on issues as disparate as "right to work," laws and regulations that have essentially outlawed abortion in states like Kansas, South Dakota and Mississippi, and restricted access to the voting booth through the passage of a range of laws related to voter identification, early voting hours and voter registration. As these laws and regulations were passed, they faded quickly from the national spotlight, but their impact in the states where they were enacted will be felt for years to come - in Michigan, the fact that union rights have largely been voided is beyond any right wing fanatic's fondest dream and a collective shrug was given by national reporters, newspapers and news programs after it was found that more than 200,000 people were dissuaded from voting in Florida because of restrictive policies put in place by the majority Republicans. 

While the Republican Party is not setting itself up to lead at the national level, it does not need to, and indeed, may not be inclined to do so. They are getting so much of what they want by mindless obstruction. In the states, a brash, in-your-face attitude is re-writing policy in profound ways that will be difficult to undo, particularly in southern states where it is the Democrats that are flirting with extinction. To paraphrase Twain, reports of the GOP's demise have been greatly exaggerated. 

Sunday, February 17, 2013

Elizabeth Wurtzel Has A Sad ... Or Something


Elizabeth Wurtzel’s New York magazine essay My One Night Stand Of A Life, is a deeply narcissistic, highly vulnerable and excruciatingly honest piece of long form writing that shows what happens when talent fades. If Ms. Wurtzel’s name sounds familiar to you in an “I Love the 90s” kind of way, you’re not alone. She rocketed to fame in 1994 when her autobiography, Prozac Nation, became the touchstone for a generation of raw testimonials about childhood struggle, depression, uninhibited sexuality and mania. And now, in what is the literary equivalent to a C-list celebrity’s finding a second life in the now mainstreamed genre of reality TV, Wurtzel has unloaded a more than 5,500 word stream of consciousness rant about her life at 45, a sad and lonely place that feels like the logical bookend to this particular form of Generation X writing.

My One Night Stand reads as if a stereotype of the young woman as artist was frozen in amber and brought back to life in middle age. While the rest of the world grew up, got married, had kids and moved to the suburbs, Wurtzel lived a dizzying life of casual hookups, drug use and apartment hopping that she wants you to know makes her better than you because she can still fit into the same pair of 501s from high school, rubs elbows with Bret Easton Ellis and decided to go to Yale Law School "on a lark" in her late 30s. But much of My One Night Stand reads like a defensive explanation for why a once shining literary light has produced such a paucity of work while "stubbornly and proudly, empathetically and pathetically" refusing to grow up. There is no question Wurtzel is fully aware of her own self-absorption. Few writers, let alone psychologists, could better diagnose her malaise. When she speaks of herself as one of New York's "Lost Boys" or spins a plum such as this, straight out of a 2 AM dorm room discussion: "I live specifically, with intent. The intent is, I know now, not at all specific, except that I have no ability to compromise," she is zeroing in on precisely what makes her piece either the greatest mockumentary since Banksy's Exit Through the Gift Shop or the well paid navel gazing of a woman so wrapped up in her own world that anyone making it to the end of her article will not laugh at her bravado ("no one else seems to live as I do") but rather, feel great pity for her cluelessness and need to justify her existence to others (it is unclear) who question it. 

While Monday morning quarterbacking one's life in middle age is not uncommon, Wurtzel's almost pathological desire to relitigate hers, from hardscrabble roots as a middle class child of a single parent in Manhattan to Harvard, the self-assuredness that (according to her) has allowed her to write what she wants and have that be sufficiently remunerative to never have to compromise her ideals and to justify blowing her money on drugs, men and partying, is to erect a series of straw men only to discover there is nothing to knock down. Wurtzel has not learned a critical lesson that others her age (and I count myself in that category, though she has 3 years on me) who have moved on from these battles have internalized - "who cares." Here, the arrested development Wurtzel clearly suffers from is in full bloom. She must pacify herself by humblebragging her achievements, from being published in Seventeen magazine before she went to college to matriculating at Yale Law School in her late 30s. While she lolls away a Friday "working from home" only to, gee whiz, discover her name, and the only female one at that, in the "Literature" category of famous Harvard alumni in a publication released by that university, this incessant CV-checking and the attendant name dropping she sprinkles throughout My One Night Stand screams "insecurity," not "accomplishment." 

Wurtzel is constantly reminding us of her genius, but having attended Yale Law, her world view is shockingly black and white. In law, as in life, wide shades of grey exist, yet in Lizzie's world you are either a soul-sapped parental unit who may or may not be divorced or a struggling artist whose life is a swirl of drama befitting a character on Girls even though you are closer to an AARP card than being kicked off her parents' health insurance plan. And if it is true that lawyers are binder producing drones whose work product lands in warehouses off the New Jersey Turnpike, why exactly did Wurtzel go to law school (and why does she mention this fact over and over again)? Oh right, a "lark," which, according to her, is part of what makes her unique. Perhaps at Yale every student is earnest and prepared to enter the legal profession, but I know many people who have attended law school on a lark, some dropped out, some were there solely to satisfy their parents or their own intellectual curiosity, but larks they were. 

Perhaps Wurtzel anticipates these critiques, explaining that her fierce independence simply did not allow her to take the easy or predicable path and that objectivity about her decision making simply does not exist; however, as she speculates about the version of her life that does not include working for nationally-renowned trial attorney David Boies (which appears to be the version in REAL life, as she is not listed as an attorney with his firm, a point she neglects to mention), she also fails to consider that had she not been so frivolous in her choices, she wouldn't be sharing with the world the story of getting kicked out of her sub-let apartment by a 50-year old woman she calls "Hooker Maria." Indeed, the thread woven throughout this piece is Wurtzel's odd belief in her uniqueness, as if she is the only person who can "love with a pure heart and hope for the best" or that everyone else is willing to do things that make them "adjustable" but she cannot, and you can never hope to live the "overwhelming emotional life" that only Elizabeth Wurtzel experiences like "flat sheets of hard rain." 

Here, Wurtzel's decision to never establish roots explains how she thought nothing of contacting a famous lawyer (the aforementioned Mr. Boies) to solve a simple tenant dispute; something akin to asking Stephen Hawking to solve your 7th grade algebra problem. Indeed, playing the helpless naĂŻf, who, at 45, cannot get her shit together enough to resolve a conflict by either taking some of that “royalty account” she proudly boasts of to buy a home or deploying some of the skills any student learns in law school – of mediation and negotiation – to reach an acceptable outcome appears to be a cross she happily bears. That the "Hooker Maria" incident drove Wurtzel into a spiraling depression for months on end that made her cringe at close contact or the delivery man's ringing of her doorbell says far more about the importance of learning adult problem solving instead of being used as an excuse to barricade yourself in your apartment ducking behind couches at the slightest curious sound. 

It is far easier to call a father-surrogate, but really, requiring someone to swoop in and solve your drama swirl at age 45 makes you lame, not tortured. Blowing advances on Birkin bags so you can brag about toting Hermes on the IRT and adopting the philosophy that "if you take care of the luxuries, the necessities will take care of themselves" is a great philosophy if you want to be a 45-year old with little to show for your life's pursuits other than your Gyrotonic-toned body and the belief that people still care about what you say for anything other than the can't-look-away-from-the-car-crash value. 

You see, the Peter Pans of the world who refuse to grow up assume the trade offs of giving up their freedoms are too painful, too binary, too zero sum. The Wurtzel manifesto of "true love and artistic integrity," of justifying all the poor decision making by clinging to principles that amount to a middle finger lofted high and in no particular direction is wonderful when you are 21 and have learned little about life, but surely Wurtzel's neck is sore from tilting at these particular windmills. Lizzie Wurtzel won't buy a home or invest money in the stock market because she would rather be a sad girl bemoaning the friends she no longer has or the life she thinks she has lost (but fiercely defends). But the dirty little secret is that the trade offs are not as dire, the loss of cool points not as dramatic, as they might appear. Rather, it is the obligations that come with mortgages or retirement accounts or <gasp> marriage, that the Elizabeth Wurtzels of the world truly fear. Far easier to keep ironic distance, having cinematic episodes where you are slumped in a heap on a park bench with the late afternoon rays of sunshine casting "brilliant shadows" as you collapse sobbing before calling someone to fix your problems. 

Sadly, Wurtzel's zealous clinging to her particular worldview limits what might be an interesting second act. Instead of spraying her "pathological honesty" all over magazine pages for all to read (and pick apart), she could take that Yale Law JD and turn it to some public good, because the haze of David Boies's legal brilliance notwithstanding, Ms. Wurtzel could visit many a Legal Aid office, public defender or law school clinic and find equally intelligent (and more socially conscious) lawyers not motivated by a $1,000 per hour quote. As a writer who still commands an audience, she could take on causes that extend beyond her own self-interest or simply grow up and embrace the totems of adulthood she has so deftly avoided. 

Having popularized the confessional as memoir, Wurtzel's influence is unquestioned and her place in modern literature secure. Click over to Jezebel, xoJane, any of hundreds of blogs or read quarter-life memoirs on any given day and you can see pieces written about eating disorders, prescription pill addiction and more, all of which owe a debt to her style and technique. And therein may lie the truth at the bottom of My One Night Stand - having once been extraordinary and yes, unique, the author is now pedestrian and ordinary. Instead of burning out, she is simply fading away. 

You can read her article here and make your own judgment:

http://nymag.com/thecut/2013/01/elizabeth-wurtzel-on-self-help.html

Thursday, February 14, 2013

Harry Reid Is Bad At His Job


A few weeks ago, Republicans in the Senate, aided by the media, got people to buy into the idea that Democrats interested in reforming the filibuster rule to ease the unprecedented obstruction of the last Congress were playing with fire. That failing to honor the rights of the minority party would blowback in the Democrats’ faces when they inevitably lost control of Congress’s upper chamber. The spook campaign worked. Instead of passing muscular rules that would have still provided for minority rights, but not at the expense of critical decisions, from Cabinet appointments to bringing legislation to the floor in a timely manner, Senator Reid took his slice of the loaf and a handshake deal, that pinky swear, Republicans would not continue their lockstep opposition to anything and everything in the Senate.

Cut to yesterday and the first ever filibuster threat of any Cabinet member in the history of our country. That Republicans show no similar fear of precedent or blowback is unsurprising. Democrats, being the good government types they are, always back down and never take revenge. Yesterday’s decision by the GOP to force a cloture vote on Chuck Hagel (a Republican, no less) did set one precedent –it showed that if they ever do get the majority back, they will be as unafraid to change the rules to ensure Democrats cannot pull these types of shenanigans as Democrats are willing to do just the opposite.


Ever thus.

Sunday, February 10, 2013

The Death of Aaron Swartz


A few weeks ago, a young man named Aaron Swartz committed suicide. Ordinarily, a 26 year old's death by his own hand would not garner much attention, but Swartz was both a promising young computer programmer (he helped develop RSS feeds) and a criminal defendant in the matter of U.S. v. Swartz [1], accused of illegally connecting a laptop computer to the computer network at the Massachusetts Institute of Technology and illegally downloading more than 4 million documents, which, according to the indictment, Swartz intended to upload to peer-to-peer file sharing networks. The service from which Swartz took the files, JSTOR, charges a fee of upwards of $50,000 to users (typically universities and colleges) for access to the network. Some of the fees collected are returned to the original copyright holders while allowing limited access to the network for MIT students and guests.  

The indictment listed 13 felony charges and Swartz potentially faced decades in prison and $1 million in penalties. In the aftermath of his death, his advocates pointed to the heavy handed tactics of the U.S. Attorney's (USA) office in Massachusetts, suggesting that the stress and pressure applied by the USA drove Swartz to kill himself. Others suggested that the tactics employed by the USA were politically motivated and that the office sought to make an example of Swartz.  While Swartz's death was certainly tragic, the lily gilding done by those who rose to his defense in the wake of his suicide conveniently omitted some critical information.

First, Swartz was not an impoverished defendant relying on a wet-behind-the-ears public defender. His lead counsel was Elliot Peters, a former Assistant U.S. Attorney and partner at Keker & Van Nest,  who counted among his other clients disgraced cyclist Lance Armstrong and the Major League Baseball Players Association. Peters' honors and awards are numerous, including being named one of the Top 100 lawyers in California [2]. Peters had an arsenal of legal tools at his disposal to defend Swartz, among them, a lengthy pre-trial motion to suppress critical evidence in the case that was pending at the time of Swartz's death [3]. 

Second, Swartz was offered, and turned down, a generous plea bargain. Namely, a sentence recommendation of between 6 and 8 months in prison in exchange for a guilty plea on the 13 charges. Now I will admit, in plea bargains it is far more common for the prosecutor to knock down many charges to one or two, but if one is pleading guilty, is the number of counts really that big a deal? Would the 6-8 months been any different had Swartz pled guilty to one felony instead of 13? 

Third, even if he went to trial, according to his own attorney the U.S. Attorney's office was only going to seek a sentence of 7 years, far less than what they could have asked for [4]. Oddly, Peters lamented the fact that the sentence recommendation if Swartz pleaded guilty was lower than what it would have been had the case gone to trial (such discrepancies are precisely why pleas are offered); regardless, while the charges against Swartz could have landed him in prison for decades, if his own lawyer is to be believed, the government was not going to ask for a lengthy prison sentence even if they prevailed at trial. 

What we do know is that Swartz had a well-paid and highly experienced criminal defense lawyer who had negotiated what most defendants would view as a good deal. That some think it would have been offensive for Swartz to have pled guilty to crimes he did not think he committed, or that because MIT decided not to pursue Swartz through civil litigation the government should have dropped the case, are frankly beside the point. The criminal justice system has its checks and balances. If Swartz believed in his innocence, he had the means to advance that point, and through an attorney with a stellar resume; pre-trial motions afford the defendant to argue that the government has not met its burden in charging him with any (or all) of the charges against him.  Even after a case starts, a defendant can seek dismissal of certain counts (or the entire case) if s/he thinks the government has not met its proofs. A judge rules on these motions and bases those decisions on the law and fact as presented to her. This is the way our judicial system works and to argue that those rules should have been suspended or modified because a bright young computer programmer was being charged is simply not the way things work. 

Swartz retained, as every criminal defendant does, his right to confront his accusers; however, had he done so, he also would have had to accept he might lose and be found guilty- it's something we call "litigation risk" and every person involved in either a civil or criminal case must weigh it when deciding how to proceed. Indeed, litigation risk is largely why 90% plus of both civil and criminal cases settle (civil) or result in a plea (criminal). While the conduct of the U.S. Attorney's office may have not been what we consider a model of prosecutorial discretion, the reality is that a grand jury heard testimony and returned a lengthy indictment related to the theft of millions of documents (and yes, I'm aware some were later made available at no charge) that did not appear, at least to this reader, to be demonstrably different than what shut down music services like Napster. Weeks before his death, Swartz was offered a plea deal that would have resulted in a very modest prison term (and likely at a minimum security prison) in return for a guilty plea. He turned it down. 

This is not to minimize Aaron Swartz's death. It was tragic and my heart goes out to his family and loved ones; but to assign blame for his death on people whose job it is to charge and prosecute people alleged to have committed wrong doing is also unfair. 


1. https://www.docketalarm.com/cases/Massachusetts_District_Court/1--11-cr-10260/USA_v_Swartz/53/
2.  http://www.kvn.com/lawyers/peters-elliot
3.  http://tech.mit.edu/V132/N59/swartz.html
4.  http://www.kvn.com/news/news-items/Elliot-Peters-Discusses-Internet-Activist-Aaron-Swartz-Lance-Armstrong-Prosecutorial-Excess-

Saturday, February 9, 2013

Hiking The AT With Bill Bryson


If you are a book worm, one of life's great pleasures is the library book sale, where gently (and sometimes not so gently) used books can be bought for bargain basement prices. And so it was that I recently procured a $1 paperback copy of Bill Bryson's 1998 book A Walk in the Woods, a memoir of hiking the Appalachian Trail (AT). As a Bryson fan (his recent book, At Home was my 2011 "book of the year"), I looked forward to his equal parts tangy and tart writing and punchy prose. In this respect, AWITW did not disappoint. In Brysonian style, digressions into the origins of the AT, its flora and fauna, mammals, reptiles and invertebrates and the lost stories of many small towns along the way unfolded, crisply and with vivid insight.  Bryson's partner in crime is one Stephen Katz, both foil and foible, a recovering alcoholic Bryson vaguely knew a lifetime ago and who comes along for the ride.

For the first leg of the trip, as well as the book, we move smartly. Packs are purchased, routines are established in fits and starts, coffee is funneled through makeshift toilet paper filters each morning, tents are pitched and taken down, sore feet massaged each night by crackling early spring fires. A freakish snowstorm hits Georgia, providing narrative drama and the tone of peril as our doughy, middle aged duo overcomes challenges little by little. By and by, Bryson and Katz find their footing, the hike quickens, random strangers are met along the way, and a comfortable pace, both in their walking and the author's writing, are established. And then, just as the reader is getting comfortable and the hiking boots are broken in, the duo cuts their trip short. The suddenness of this narrative shift is jarring - as Bryson tells it, while stopping at a general store, he notices how very little of the full AT (which clocks in at about 2,100 miles) he and his partner have traversed. 

They are quickly whisked back to civilization and from there, the book loses much of its thread. Bryson takes some day trips into Pennsylvania coal country while Katz is off stage, back in Des Moines and not to reappear until nearly the end of the book. The book becomes like Bryson's hodge podge walks, disjointed and unsatisfying. The privation of the wilderness is replaced by the knowledge that the author is traveling from place to place by car, parking his vehicle in a spot along the trail and then circling back to it by the end of the day. The greatest drama we hear of is a juvenile argument Bryson gets into with a "rent-a-cop" on a side road near a coal plant. Otherwise, Bryson's frustration at going from a hiker living day to day in the woods to a day tripper dipping in and out of the wilderness is palpable. 

By summer, Katz has returned for the duo's trek through Maine's Hundred Mile Wilderness - a trek of true challenge (at least back in the mid 1990s, before cell phone became commonplace). The trip ends up being ill fated - as Bryson fills in the blanks on Katz's life between the two legs of their trip, we learn he has slipped and returned to alcohol and having lost the hiking chops that he had developed down South. The duo aborts early on in the hike and are left to consider their fates. In this way, the book acts as middle aged meditation, of men coming to grips with weakened virility and submission to the hands of time and living that did not incorporate either clean living or good nutrition. That said, their 870 mile total was nonetheless impressive, a full 40% of the overall total of the AT, or, as Bryson notes, a walk from New York to Chicago (and then some). 

A final note - Bryson wields a sharp pen and lacerating wit, but too often, his barbs came off as churlish, particularly some of the stereotyping he did of backwoods people in the South and in casual conversations with less serious hikers along the way. Perhaps this is owing to his years in England or maybe he's just a contrarian cuss, but I found his tone off putting at times. Overall, an uneven effort that I felt far better about spending one dollar on as opposed to the cover price of $14.95.