Non-negligent mistake vs negligence vs strict liability vs Benghazi

Tort law was one of my favorite classes in law school, gruesome injury cases being more interesting than contractual disputes over international chicken shipments.

The usual rule of non-negligent mistake is that you lump it. I drive over a virtually-invisible oil patch and go into a skid and injure you. No one would've seen it, so the injuries are your problem.

Negligence is when I failed to see an otherwise-visible oil patch because I was adjusting the car radio instead of carefully watching the road, and this time I owe you. The classic Reasonable Person wouldn't have adjusted the radio except in absolutely safe conditions. The RP isn't superhuman, supersmart, or superskilled, but he or she doesn't make easily foreseeable mistakes.

Strict liability reverses the rule of non-negligence:  if the harm was from something that even RP would not have avoided, the victim gets compensated. Same as the first case, I drive over a virtually-invisible oil patch and injure you, only that now, your injury results from the fact that I was transporting explosives that then exploded. Strict liability is considered a mostly-modern legal invention but there were earlier forms. Collapsing dams for watermill ponds were examples, and my favorite case was a pioneering, late 19th-Century balloonist who landed on a woman's vegetable patch. She hauled him into court for her veggies. He rightly pointed out that ballooning is brand new and no one knows how to land them - the judge said tough luck, if you do something abnormally risky like ballooning then you're strictly liable for any harm.

Negligence and strict liability seemed like separate concepts until Professor Grey pointed out that the Reasonable Person acts reasonably every time, but no actual human being does. It is unreasonable to expect someone to be reasonably prudent every time, but the law expects that, so a corner of strict liability is embedded in the law of negligence, presumably for the same societal reasons that we apply strict liability in other situations.

So this brings us to Benghazi - it's hard to figure out what the right wingers are screaming about, especially when their bizarre claims about coverups seem tangential to the real issue of inadequate security in the lead-up to the tragedy. I don't know if the inadequate security was a non-negligent mistake or negligence on someone's part, although I'd lean towards the latter. As far as the response  once the attacks started and the hurt feelings of the people who believe they didn't get accurate information in the near-term aftermath, the first of those two things is hard to judge and the second isn't all that important.

But that still leaves the screw-up in the security preparations. Even if it's negligence that resulted in four deaths, I don't hold that as a major screw-up of the Obama Administration. They make thousands of security decision, and they will screw some of them up. Someone should pay for it somewhere in the chain of command (assuming it is negligence), but this is small potatoes - it would be unreasonable to go from this to concluding that the administration as a whole is negligent.

I wish the worst thing we could say about the Bush Administration was that they screwed up and four people died.


UPDATE:  I need to do some additional research but I think Paul Ryan lied to the public on national television about a national security issue in the vice-presidential debate when he said there was virtually no US security in Libya compared to what we have at the Paris embassy, while knowing that CIA was nearby. He should get hit with this when he runs in 2016.

Putting Greenspan on the financial crisis team is like appointing Osama Bin Laden to 911 Commission*

This has got to be the worst idea Hillary Clinton's come up with:

She'd spoken on financial issues earlier in the day on the Penn campus, and she was pressed about one of her more controversial ideas: Naming Alan Greenspan, the former Federal Reserve chairman, to what she called "a high-level emergency group" to deal with the problem of high risk mortgages
.....
But she was especially prodded on the choice of Greenspan. As some critics have pointed out, the former Fed chair was inactive as the housing bubble grew, and in fact seemed to encourage some of the bad practices that blew up in Wall Street's face. As noted here:

He said a Fed study suggested many homeowners could have saved tens of thousands of dollars in the last decade if they had ARMs. Those savings would not have been realized, however, had interest rates shot up.

"American consumers might benefit if lenders provided greater mortgage product alternatives to the traditional fixed-rate mortgage," Greenspan said.

So the Daily News asked, why Greenspan, that wasn't he off-base on the housing bubble, and here was her response:

"Not only that, but the Fed didn't act while he was there. But he has a calming influence still to this day on Wall Street -- don't ask me why because I never understand what he's saying -- but nevertheless people respond to that Delphic oracle approach. I think it would be wise to include him. And recently he's come out and vert smartly so that we have to deal with housing and maybe we need to have some kind of buyout mechanism for mortgages. So he's moved on his understanding and depth of the problem -- but you know you could pick three others. You just have to have some demonstrable involvement of presidential leadership...

So now we have John McCain saying he doesn't know much about the economy, and Hillary Clinton liking Greenspan even though she has no idea what he's saying -- God help the United States of America.

And Clinton tries this just as the mainstream media is finally reevaluating Greenspan's bloated reputation, years after it became obvious, with "Perhaps the Maestro composed some discordant notes after all." This Washington Post article finds the same February 2004 quote, but they need to keep working on the journalism thing. The article gives Greenspan the chance to claim he took back the "Yeah ARMs!" quote in March 2004. But that's not quite the whole story.

In an interview last year, Greenspan said he continued to support ARMs in March 2004, but for people buying homes for two to three years. This is different from saying he reverted to supporting fixed mortgages. More importantly, the only way that short-term purchases could make sense, given a double set of closing costs in a three year period, is if prices are continually going up. Greenspan's endorsement was an endorsement of a housing bubble.

Finally, in the Post article, Greenspan says "protection of property rights, so critical to a market economy, requires a critical mass of owners to sustain political support." Political manipulation wasn't his job, and shouldn't have been his job.

Adding, just one more thing - while Bernanke is far better than Greenspan, he was on the Federal Reserve Board before becoming chair, and was also Bush's former Chairman of the Council of Economic Advisors. Bernanke would make a list of the Top 100 People Most Responsible for our current crisis. Let's hope he does a better job of getting us out of it.


*Turns out that Dean Baker has a similar view of Clinton's idea.

Geraldine Ferraro on wikipedia

I thought I'd look up Geraldine Ferraro on wikipedia to see what she's done since her unsuccessful vice-presidential run in 1984. Turns out it's running unsuccessfully for office and making boatloads of money.

Also found this:

Mondale's campaign was already far behind the Republican ticket when Ferraro joined the ticket, and one issue that hurt her credibility was her disclosure of her husband's tax returns. In July 1984, she said she would release both her and her husband's tax returns. Yet a month later she backtracked and said she would release only her returns. Then she backtracked again, saying her husband would release "a financial — a tax statement" on August 20. But she must not have consulted her husband, because Zaccaro initially refused.^[13]

Reminds me of a current controversy. Let's find out what the Clintons have in their returns before we get a similar problem.

UPDATE: Media Matters makes the excellent point that McCain hasn't released his returns either, while receiving much less scrutiny. Obama would be well-advised to go after both of them at the same time over this issue.

Obama should offer to help fund the MI and FL do-overs

As part of his keeping a moral high ground against HRC,* Obama should offer to help pay for the as yet uncertain, do-over mail-in primary/caucus in Florida and Michigan. His campaign should offer to help along with the help of the state and national Democratic parties, and help from Clinton. When Clinton refuses, Obama can offer to help pay anyway and look that much better.

Even if Hillary ultimately wins those states, and Michigan would be difficult for her, her margin couldn't possibly be enough to make a difference, and it's a better gamble than dealing with the damage she'll cause as she tries to push through delegates from uncontested elections. And of course there's always the "it's the right thing to do" argument.

I noticed James Carville likes this idea too, which makes me wary. I'll stick with it anyway.


*At least he's mostly followed the high road. I hate those Fear-of-a-Health-Mandate mailers his campaign keeps sending out, but still he's done a better job.

What the Clinton campaign should have done (it's not what everyone says)

I mostly agree with this Ezra Klein post that beyond the issue of the Clinton campaign and its tactics is the issue of Clinton the Senator, who worked only on small-bore legislation instead of leading high-profile fights that would have made her the candidate of change.

Still, tactics also play their role, and I disagree with the conventional wisdom that the campaign's mistake was in its failure to put sufficient resources and time into the post-February 5th contests, where Obama has picked up unstoppable momentum. This argument seems to believe the money and time spent on the later contests would have come out of thin air, when in fact it would have reduced her position in the earlier contests and give Obama more momentum and "hope" in the later fights.

You don't beat a phenomenon by outlasting it, your only chance is to snuff it in the bud. The Clinton campaign's mistake was in not diverting more resources to the pre-February 5th campaigns, especially Iowa. Had she gone all-out there and won, combined with her New Hampshire win, it could have been different. African-Americans only switched to Obama when he had proven himself viable, so in this scenario she might have kept South Carolina and the campaign would have been over.

It probably wouldn't have worked, and then everyone would say it was stupid not to plan for a long campaign and I'd have no effective response, but I think the odds are better than the odds Clinton now faces.

As for why I posted on February 7th that Obama would win when most of analyses I read seemed to think Clinton had done well - Obama fought her to a draw when people knew her the best and him the least. I thought people tended to like Obama more as they heard him more and got used to him as presidential material. The average voters in later contests have more time to get exposed to him, so I felt he would keep doing better. I'm not sure that this is the right reason, but it does seem like the right prediction.

If Exxon can lie, then so can I

Not much climate blogging out there on this issue: Exxon-Mobil did a significant blogger outreach over a year ago, promising to stop lying about climate change by funding climate denialists. I had some doubts about it. Turns out I wasn't doubtful enough. Environmental Law Prof Susan Smith has the goods (and she's not happy at being taken in herself). Exxon gave $180,000 to Frontiers of Freedom, a denialist astroturf group in 2006, when they said they stopped doing that. Smith lays out the denialist nonsense that FoF comes up with.

To be generous to Exxon, maybe they decided to stop lying through funding in the middle of 2006 after giving away the money, and were just inexact in their January 2007 discussion. We'll see what they disclose for 2007 donations, then.

Enough with Exxon's lies, what about mine? I said I'd stop writing about Hillary Clinton's $5m loan. Ha! Via emailer Jeff, Matt Yglesias and Ben Smith are still on the issue. Smith found out that Clinton's charging 1.26% interest on her loan, apparently unheard of even in the murky world of candidates loaning money to their campaigns (UPDATE: turns out it's not unheard of, Kerry charged a far higher rate to his own campaign in 2004). I posted this comment at Yglesias' site:

What's interesting to me though is that [the interest] may set up HRC to treat non-payment of the loan, should she decide to forget about getting repaid, as a capital loss to set off against her other capital gains.

In other words, if she just gave $5m to her campaign, she's $5m poorer. But instead, if she loans the money following IRS regs for arms-length below-interest loans, and decides later to not get paid, she writes off $5m against any capital gains she and Bill make in the tax year. Bill's cashing out of a partnership, so he'll have a lot of capital gains. Not a bad way to get $1m-plus tax benefit off her donation. The rest of us get no tax writeoffs from political donations.

I'm just speculating though. A tax specialist/accountant should really look into this.

A tale of two senators' homes (last post on the loan issue)

Alaska Senator Ted Stevens has had his name dragged through the mud, and deserved it, for allowing a company with important governmental dealings to rebuild his house at apparently below-market rates. Stevens may ultimately face criminal charges for this and other misdeeds.

For the 1996 special election to replace Oregon Senator Bob Packwood, Democratic candidate Ron Wyden self-financed a significant part of his campaign by loaning the campaign money that he obtained by mortgaging his home. Wyden won the election and remains a Senator today. As it was a loan, I presume subsequent donations to Wyden were used to pay back the loan.*

In both cases, donors with financial interests in governmental actions paid for substantial parts of senators' homes. The one difference is that what Wyden did was certainly legal - but should it have been?

The response to Clinton's $5 million loan has been muted, I think. Some people have the same concern as me:

If HRC wins the election, or if she doesn't and goes back to being a powerful senator, there's going to be a fundraising drive to pay off the debt. Those contributions, unlike routine campaign contributions, will go directly into her pocket. Won't that put her under a special obligation to those donors? And, since those contributions won't actually help her get elected to anything, won't they be especially likely to come from buyers-of-access rather than political supporters?

The Center for Responsive Politics has a longstanding concern over the issue:

An increasing number of federal and state candidates are financing their campaigns, wholly or in part, with loans from themselves. In order to pay themselves back, many of these candidates, once elected, raise money from PACs and wealthy individuals interested in gaining special access and influence. During the campaign, voters have no way of knowing who these contributors are; the pre-election disclosure forms only show the loans.

At the link above, it mentions legal limits on loans as a somewhat-useful political reform.

I really hope this issue doesn't go away, although it seems to be fading quickly as far as it applies to Clinton. Incredibly, her supporters seem only more motivated to give her money after she loaned money to her campaign. Amazing how differently people react to the same piece of information.


*I'm writing the Ron Wyden information from memory - financial disclosure info I've found doesn't mention loans. I am certain I remember reading it in the Oregon newspapers.

A question for the Clinton campaign about the $5 million loan

Here's the question:

"Can you guarantee that all the small donor contributions to the campaign will be used for electing Clinton president instead of paying back the $5 million loan and ending up in her pocket?"

I think it's a fair question. Suppose that Sarah Saintly, a widow living on a small fixed income, gives her last extra cash to the campaign in the belief that Clinton had the best chance to beat the Republicans and enact a progressive legislative agenda. Sarah has the right to know whether a portion of her money will not be used for that purpose and instead be redirected into the pocket of the multi-millionaire Clinton family. And if the Clintons loan more money to their campaign as has been suggested, an even larger-percentage of Sarah's donation goes the the Clintons instead of the purpose Sarah intended.

Some other questions: what are the terms of the loan? Does the campaign have to pay back with interest? That could really lend itself to abuse. The McCain campaign released the document showing the bank loan it received - can we see the actual document?

When will we know if Clinton will loan more money to her campaign, and how much? Will Bill Clinton loan money to the campaign? Is there any legal distinction between a loan from Hillary and a loan from Bill?

It might be a little difficult for the Obama campaign to push the issue - prominent supporter John Kerry apparently did the exact same thing as Clinton in 2004. Still they should - it's the right thing to do and will help their campaign. And nothing would stop reporters from asking these questions.

"The scandal isn't what's illegal; it's what's legal."

The Michael Kinsley quote I used for this post's title will probably always be true.

Last October I posted this at the John Edwards community blog:

Romney's campaign loans = legalized bribery

Romney has loaned $10 million to his campaign, and will probably keep on loaning.

So what happens if he were to win the Presidency, and a big corporate fatcat made a donation to his campaign?

It's bad enough normally in terms of campaign influence, but when a candidate has loaned money to his campaign, these donations go straight into the newly-elected official's pocket.

Someone needs to explain to me the difference between this and "normal" bribery. Money from the donor goes almost straight into the candidate's pocket.

I hope JRE picks up on this and points it out, and watches for any candidates on our side doing the same.

What's good for the gander is good for the goose. Hillary's loaned $5 million to her campaign and may loan more. (Interesting that it came out the day after Super Tuesday and not 24 hours earlier - wonder if there's a story behind that?)

Wealthy corporations, unions, and individuals who give money to her campaign from now on will be putting a portion of that money into Hillary's pocket, until the debt is eliminated. It's legalized gifts of money to a political candidate, a potential President, and a sitting Senator. Tell me that doesn't raise ethical questions.

Donating massive amounts of money to one's campaign raises some disturbing issues, but loaning the money is far, far worse. Hillary needs to immediately convert the loan into gift, and not do it again.

P.S. And if she does win the nomination, I'll still vote and volunteer for her. Part of the scandal of something being legal is that makes people think it's not wrong. My giving money to her became less likely though. An appearance of impropriety....

P.P.S. The only good news for Clinton is that post-Super Tuesday I now think she's going to lose the nomination, and given the past accuracy of my political predictions, Obama's in trouble.