Re:Balance -- Jim Peterson

Should Trump Have Testified? A Tale of Two Trials

Should Donald Trump have testified in his own defense?

Would his performance as a witness have turned the New York jury who on May 30 found him guilty of 34 felony counts of falsifying as legal expenses the hush money paid to quash the threatened publicity of his one-off with porn performer Stormy Daniels? 

 Or was it a preferred strategy to avail himself of the unambiguous right to keep silent? 

It’s a good time to pursue the question, while Trump awaits sentencing and runs out his string of appeals. The debates are lively, even though now with hindsight the question lacks a meaningful answer. Its complexities will be assessed both by doubtfully qualified commentators and courtroom groupies, gassing around on the media platforms, but also by serious observers of trial tactics - defense counsel, academics and students. They will all try to slice and dice the nuances of the common if opaque cliché that while a jury wants to hear a defendant’s first-hand story, a choice to testify risks worsening an already difficult situation.  

Over a career involving a significant catalog of large-scale white-collar criminality, I have worked on, watched and studied enough trials to believe that, while prosecutors and defense counsel alike will do all they can to shape their best case, it is a fool's errand to predict a jury result. Every criminal trial has its own dimensions, every trial team its own quirks and quiddities, and every jury its own dynamic – partially knowable at best and then only to the first-hand participants.

Which said, my admittedly limited sample suffices to put forward a recent outcome where the jury came out the other way, as a comparison with Trump’s decision not to testify.

On June 6 in San Francisco, a federal jury acquitted UK tech entrepreneur Mike Lynch of multiple counts of wire fraud and conspiracy, arising out of his role as chief executive of software company Autonomy. The charges were that under Lynch’s leadership, the company used backdated contracts, round-trip deals to entice customer purchases, and software revenues mis-allocated to unprofitable hardware sales. With its financial reporting so manipulated, it was claimed that American company Hewlett-Packard’s 2011 purchase of Autonomy for $ 11 billion, led by Silicon Valley veteran Meg Whitman, for which HP took a write-off one year later of $ 8.8 billion, involved an overpayment that exceeded $ 5 billion. 

Lynch took the witness stand at his trial. As reported, his “calm and confident performance in his own defense on the witness stand appeared to have turned things in his favor.” 

By contrast, in choosing not to testify, Trump is unique among American presidents. Whatever the course of his future appellate strategies, he is a convicted felon – a label hung on him by a jury of twelve ordinary citizens.

While the American notion of the Monday morning quarterback seems not to have a colloquial British equivalent, Lynch has a prominent public profile there, and his acquittal has been well covered in the UK media. Both the similarities and the differences invite comparison.

The two defendants brought to their trials a common reputation of domineering and autocratic executive styles. Both professed disinterest in the details under their watch, left to subordinates in favor of attention to their avowedly higher callings.

The readiness to evade responsibility for the conduct of their minions invoked what one of my early mentors, a former federal prosecutor, called the “pure heart and empty head” defense – asserted by CEOs who claim to be above attending to the granularity of quotidian particulars. In Trump’s case, responsibility fell to Allen Weisselberg, his longtime financial wheelman who for his complicity earned both a two-million-dollar severance payoff from the Trump Organization and a five-month sentence for his guilty plea to charges of tax and other frauds. For Lynch, it was his chief financial officer Sushoven Hussain, who had earlier been convicted and served a five-year prison sentence for his role in Autonomy’s malfeasance.

Both defendants brought to their trials the baggage of collateral litigation exposures. Arising out of his personal and business affairs, Trump faces adverse judgments in New York in the actions brought by E. Jean Carroll for defamation relating to what a New York jury found to be his sexual assault, and by the state’s attorney general for his organization’ corrupt manipulation of its real estate valuations; related to his tenure in office are the three pending but stalled cases - for conspiratorial vote-rigging in Georgia, purloining and concealment of confidential government records documents in Florida, and the January 6, 2001, insurrection in Washington.

Lynch’s situation is rather simpler - he confronts the damages phase of civil claims by HP in the London courts, seeking recovery for the debacle on the back-breaking if implausible scale of four billion pounds.

Commentators have suggested that the prosecutor’s case against Lynch was over-complicated and confusing for the jury. As a non-participant and therefore unqualified to opine, I note only that juries are fully capable of following even complex financial and accounting narratives – as shown not only by the Trump verdict but also by the November 2022 convictions of Elizabeth Holmes for financial fraud based on the fictitious blood-testing technology of Theranos, and Sam Bankman-Fried’s November 2023 conviction for the wild excesses of crypto exchange FTX.

A challenge for any defense counsel – assessing how a client defendant’s testimony may be perceived by a jury, for better or worse - is not just a hard call. Sooner or later as any litigation of consequential scale reaches its inflection point, whether criminal or civil, defense lawyers must make plain to their clients a highly simplified proposition – “You could lose this case.” It may happen on the eve of trial, as with the last-minute agreement by Fox News to settle the defamation claims of Dominion Voting Systems for $ 787 million. Or when a plea bargain is offered. Or when there is no further postponement of the binary decision whether to take the tactically risky but legally justifiable choice not to testify.

Mike Lynch may not have needed the lawyers’ speech. Trump, schooled by über-fixer Roy Cohn and pursuing for decades the tactics of “delay, deny and deflect,” may even now not have registered the reality.

Lynch may have dodged conviction by his act of courtroom salesmanship. Whereas if credence is given to Trump’s relentless self-promotion and unrestrained self-confidence, it would be fair to ask how he could resist the opportunity for a theatrical first-person courtroom display of his ability to market his own brand and his long-cultivated image of superior intellectual skills and behaviors both innocent and virtuous.  

Would the outcome of either trial have been different, if their choices had gone the other way? One reason the inquiry and the comparison are so tantalizing is precisely that we cannot and will not ever know.   

 

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Kristi Noem Shoots Her Dog, Wounds Herself

“Puppy killer” is not usually offered as a qualification for high elective office.

It’s a self-inflicted wound - the audition by South Dakota governor and farmer Kristi Noem as a MAGA candidate for vice president on Donald Trump’s ticket – choosing to publicize in a forthcoming campaign biography the story that she summarily executed a 14-month-old pointer puppy.  

As reported, Noem shot Cricket the puppy for its “aggressive personality,” disrupting a pheasant hunt and getting loose to attack her neighbors’ chickens. Showing neither mercy nor comprehension of a young dog’s behavior, Noem writes, “I hated that dog,” which to her was “untrainable, dangerous to anyone she came in contract with, and less than worthless…as a hunting dog.”

My credentials for the right to comment: I was born and raised in a farm village on Iowa’s black dirt prairie, one hour from the South Dakota border. My father was a large-animal veterinarian whose clients lived on the county’s family farms, raising the plant and animal crops that supported the post-war prosperity.

Farm life now as then is demanding, with little room for naïve romance or misplaced sentimentality. Which does not, however, justify or require the hardening of hearts or the constriction of feelings – my own experience was to the contrary.

Not only is Noem’s story repugnant, it goes from bad to worse. It is to honor the needless sacrifice of Cricket the puppy that Noem’s pathetic attempt to rationalize an impetuous execution is, as was spoken back in the country, “the dog that won’t hunt.”

The idea is offensive that Cricket deserved execution in a gravel pit, either for its supposed failure at a pheasant “hunt” or for biting a family member. To start, readily agree that a farm dog may well have a guard function – watchful for both predators threatening the livestock and strangers with unproved intent. If so, the farmer is responsible that a canine with ancestral lupine DNA be leashed or penned where it can protect its charges without itself being a hazard.

Further, any dog grown and large enough to inflict damage should be answerable to a “one bite rule,” whether a ranch-raised mongrel or an over-bred Doberman in an ill-suited city apartment, so the failure to secure the young puppy falls on Noem herself.

Nor does Noem’s story improve. In my youth, hunting was done less for sport than to determine the quality of protein on the supper table, and safe and effective use of firearms was basic in every household. 

By contrast to the context for Cricket’s youthful exuberance, bird hunting in the mid-20^th century meant a real contest between man and prey: could a wily pheasant taking cover in a farm grove or a roadside ditch be flushed by a hunter on foot with the help of his dog? Instead, today’s dubious “hunts” involve the pre-dawn planting of sleeping birds in the predetermined landscape of a high-ticket resort or gun club, only to be target practice for the shooters - degraded slaughter, not fit to qualify as “sport.”  

Noem amplifies her distressing behavior with two additions – first, that she also killed in the same gravel pit an unnamed but rambunctious male goat, deemed guilty of chasing her children and smelling “disgusting, musky, rancid” – and second, putting emphasis on the supposed vigor with which she would confront “difficult, messy and ugly” conditions, as in recent weeks she had been obliged to destroy three elderly horses.

My skepticism level is elevated. Modifying the observation of Oscar Wilde’s Lady Bracknell about parents, that while putting down a single horse may be a misfortune, to kill three may suggest a convenient and systematic cull in the Noem stables.    

I grew up steeped in the ethics of animal husbandry: putting down an animal for humane reasons was a painful if necessary part of farm life, done with restraint and respect. There was such emotion that my father and his veterinarian colleagues in our quadrant of the state shared an on-call reciprocal readiness to euthanize each other’s dogs, to mitigate and relieve the intensity of the feelings involved.

How will Noem’s performative display go down? For the broader population, the callous mentality that could conceive a farmstead policy - “this week let’s kill the three old horses”– disqualifies her from any proximity to the complexity of society’s complex problems.  

As for her presumptive one-man audience, the reaction of Donald Trump awaits, although any sense of optimism should be measured. Between his urban residences in mid-town Manhattan and Florida, the narrow range of his knowledge and competence, and his amply displayed lack of empathy or sensitivity, he lacks any qualifications to speak to a farmer’s decision-making. If he ever played fetch with a puppy or taught one to heel or stay, it fails to show in the published catalogs of his aggrandizement. It would confound him to tell hay from straw, or to assess the range of shotgun gauges, and he would well assume that a “branding iron” refers to a gold-painted golf club inscribed with his monogram and offered for sale to the faithful in one of his courses’ pro shops.   

Meanwhile Trump is reported to be one of only four American presidents not to have a dog. Harry Truman’s maxim, that a president in search of a friend in Washington should have a dog, is thereby reversed – the absence of a White House pet in the Trump years may be taken as indicative of his lack of friends of any type.    

Rejecting the investment of time and energy to bring Cricket from its under-trained and over-energized puppyhood to maturity as a hunting dog, or to find a suitable and loving home where its lack of field aptitude was irrelevant, Noem’s fatal choice suffices in its lack of empathy and judgment not just to confirm her antipathy for the needy and less fortunate but to see her removed and excluded from the political discourse.

Cruel and stupid behaviors are not specific to cultures or geography, of course. Animal abusers can as well be found in the cities and the suburbs as on farms and ranches, and claims of virtue should be assessed with care. Desirably, however, Kristi Noem’s self-proclaimed pattern toward the animals under her care should be kept firmly secured behind the closed gates of her South Dakota farm – thus confining to her family and her livestock her ability to inflict the consequences of her barbarities.   

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Accountants and Their Biases: Human Nature Will Not Be Denied -- Part I

Updating the syllabus and reading list for my graduate-level course this spring in Risk Management and Decision-Making provides a reminder: the members of the accounting profession are just as susceptible as anyone else to the kinds of bias and error that, if avoided, allow for better performance and results. Here the first of a three-part series I am pleased to have written for Caleb Newquist at Gusto:

 

“You can’t expect to improve, if you can’t tell whether you’re good or not.”

Maxim of consultants in decision-making

Trustworthy, high-quality service lies at the heart of the accountants’ claim for public confidence and professional legitimacy. Rigorous standards and high expectations are set for independence of judgment, skepticism, and ethical behavior. 

Yet, to the frustration of the profession, its leaders, and its public critics, undesirable behaviors continue to erupt:

• Large-scale financial failures and scandals that prompt the popular outcry, “Where were the auditors?” –- revealing problems that have been repeated for decades. 
• Corruption of regulatory inspection and oversight through falsification and back-dating of documents and misuse of confidential agency information. 
• Answer-sharing and other cheating on professional examinations.
• Individual violations of trading rules, use of inside information, and breaches of independence rules.  
• Doubts over the profession’s ability to recruit and retain a growing number of properly qualified and skilled personnel, in the context of concerns for academic preparation and workplace environments. 

This despite intense attention and massive investments of time, money, and energy in education, training, messaging from senior leaders, and the development of tools and methodology 

The challenges may seem intractable. But if issues that extend over judgment, skepticism, ethical behavior, and operating priorities are really so hard, are there ways to improve? 

Although the search for simple solutions to complex questions can lead down the road of faulty analysis and wrong answers, a more optimistic perspective is proposed here. Fortunately, we have a half-century of research in the cognitive sciences to open a window into the complexities.

The premise is that accountants share common characteristics with all other fellow humans –- for better or worse. They are not unique or special, differently equipped, or uniquely skilled. They are no less subject to all the influences and pressures that affect and expose the human condition with its frailties and weaknesses.

Which means the news is not all bad. The very opportunities identified in that research have adaptations to the accounting profession’s particular needs. 

Biases, Pressures, and Human Frailty

A rich body of relevant literature sets the stage. A sampling for those interested: 

• The ground-breaking 1974 essay of Daniel Kahneman and Amos Tversky, “Judgment Under Uncertainty: Heuristics and Biases” (Science V. 185)
• Kahneman’s own encyclopedic book, “Thinking, Fast and Slow”(2011)
• Contributors such as Philip Tetlock, “Super-Forecasting: The Art and Science of Prediction” (2015) and Richard Thaler – with Cass Sunstein, “Nudge” (2009 and later editions), and his own “Misbehaving: The Making of Behavioral Economics” (2015)
• A generation of sharp economists, including Steven Levitt and Stephen Dubiner of the University of Chicago, e.g.,”Freakonomics” (2005) and the UK’s Tim Harford, e.g., “The Undercover Economist” (2005) and “How to Make the World Add Up” (2021). 

Greatly simplified, all modern humans carry the legacy of our prehistoric ancestors’ DNA. An early hunter, armed with a spear and hearing the rustling underbrush, faced a critical moment that required an instant reaction: if it were an animal he could kill, the tribe would eat that day, but if a tiger or a wild boar, he was at deadly peril. A stranger emerging from the forest with outstretched hand –- was it in friendship or with a weapon? 

For our ancient predecessors, the fast instincts of “fight or flight” and “friend or foe” were essential to the tribe’s safety and survival, whether against hostile adversaries or vicious predators. Their judgments carried life-or-death consequences for the hunters, although the tribe survived provided they were mostly right, most of the time. 

Those same triggers serve today in many simple cases. When a traffic light changes from green to yellow, no analytic energy goes into a driver’s non-rational “go or no” reaction. Likewise, quick and low-salience consumer choices at a Starbucks counter or a grocery shelf are mostly simple, fast, and non-demanding. 

But these examples show that our DNA has not evolved. The very simplicity of our ancestors’ instinctive reactions means they are maladapted to complex modern challenges. Decisions such as how to allocate an investment portfolio, calculate a reserve provision, where to open a new office, or which candidate to hire are better made with research, deliberation, and consultation.

Like the ancient tribes, today’s society still operates, for better or worse, as programmed for overall survival under normal conditions. This means that decision-making often defaults to oversimplification or resists recognition of the consequential exceptions:

• The very essence of the long-standard auditor’s report, expressed in non-technical terms, conveys a message filled with multiple qualifications — that the client’s information “is generally right, for the most part, over this time period, so far as we can tell within the limits of our work.”
• Likewise, practices and programs for personnel hiring, evaluation, promotion, and management are designed on the assumption that those affected will behave as expected. They act honestly, in good faith, and respond appropriately to guidance and leadership. 

For both of these, the general rules work just fine. Until, under conditions that may seem unusual or unpredictable, they don’t.

The dissonance emerges in both performance and management, because it is the exceptional cases, not the normal and expected ones, that cause the problems (e.g., the white-collar fraudster for whom an audit is an inconvenience to be evaded, the abusive supervisor, the rogue employee).

And that’s when the consequences kick in. Reactions to this bad behavior –- from the profession, its clients, the general public –- can be put in the terms used to discipline unruly children, “when you do right, nobody remembers; when you do wrong, nobody forgets.”

The Ubiquity of Human Bias

The literature has cataloged an entire vocabulary of human bias and error that pervades the accountants’ environment as much as any other area of business or professional services. The irresistible human impulse to simplify complex problems leads to narrowed questions that, by default, are often answered with little time and energy –- and too frequently answered incorrectly. 

Examples from a long list will illustrate.

                                                     In General            In the Profession

The Induction Fallacy (Mistakenly believing that past experience is a complete guide to the future)	It’s only the flu	The CFO has never misled me before
The Planning Fallacy (Over-confidently disregarding the likelihood that unforeseen changes will affect a project’s execution)	The opera house will be finished on time and on budget	Our report is on schedule –- we don’t expect any disruptions
The Anchoring Effect (Over-weighting quantitative information that is visible although not complete or relevant)	“Buy three tires, get fourth free” -  bargain	Receivables  look light–bump of 5% should do it
The Optimism Bias (Ignores evidence inconsistent with desired outcome or narrative)	Our troops will occupy Kiev within two weeks	Client growth 15% last year, so 20% this year is a lock
The Inertia Effect (Continuing past practice, whether or not in a changed environment)       The Bias of Representativeness (Extending an assumption based on limited information)	NASA shuttles launched for years –Challenger good to go     Dressed like that, he surely doesn’t belong here	Scope was fine last year -- SALY     We don’t send recruiters to schools with that ranking

These examples — illustrative and by no means comprehensive -– are common throughout the profession, as they are in society as a whole. And they share a common theme. They all arise out of the natural default to quick, simple, and intuitive reactions inherited from our ancestors that are ill-suited for modern life’s complexities.  

The guidance of the research is best summarized by Richard Thaler (Misbehaving, pp. 355-56): 

"It is time for everyone –- from economists to bureaucrats to teachers to corporate leaders –- to recognize that they live in a world of humans and to adopt the same data-driven approach to their jobs and lives that good scientists use.

"Good leaders must create environments in which employees feel that making evidence-based decisions will always be rewarded, no matter what outcome occurs. The ideal organization encourages everyone to observe, collect data, and speak up."

A word of caution: perfection is not within the grasp of fallible humans with our in-built limitations. “Zero defects” is not achievable, nor does the awareness of our sources of bias assure consistent use of the tools available. But the deliberate aspiration to improve, being the best we can do, has promise.  

Installments to follow will suggest some means to take these thoughts forward to practical application.

 

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Brian Kelly Leaves Notre Dame: The Oxymoron of “College Football Ethics”

What lessons from Notre Dame football coach Brian Kelly’s abrupt departure for LSU last month? As so often, where you stand depends on where you sit.

Kelly took up the chance to elevate the Tigers’ 2021 dreary record -- 6-6 overall and anchoring the SEC at 3-5 -- enticed by a ten-year contract for $ 95 million plus multiple incentives. In the Southeastern Conference’s multi-billion dollar program to feed well-muscled young beef into the professional meat-grinder -- business as usual.

Back in South Bend, however, Kelly piled insult on injury:

• Using a Twitter message to inform the players he had recruited and led to the threshold (ultimately frustrated) of the College Football Playoff.
• Taking the phone call that iced his new deal as a distraction from a family dinner with a star recruit, with no disclosure during the homey sales pitch.
• Holding an abbreviated no-questions team meeting at 7.00 the next morning, ahead of his flight by private jet flight to Baton Rouge.

At both schools, the follow-on effects were immediate. Notre Dame filled the vacancy in four days. First-year defensive coordinator Marcus Freeman was promoted on an outpouring of affection, support and lobbying by the team itself, after its sullen reaction to Kelly’s superficial messaging.

Meanwhile in Louisiana, Kelly’s performative introduction was derided as a bogus attempt to transmute his New England origins and Midwestern history into an adopted southern accent. More pointedly, both the Tigers’ starting quarterback and his top-prospect high school brother, Max and Jake Johnson, promptly declared themselves unwilling to be part of a Kelly regime.

Time will tell whether the youthful Freeman will grow to be the Fighting Irish’s next Knute Rockne or Ara Parseghian; in the eyes and hearts of the faithful, he will definitely not be the next Kelly.     

For myself, I hold no brief for the massive industry of college sport. It comes hard, to endorse the inducement of young athletes with transient weekend glory and the prospect of an abbreviated professional career all too likely to end with life-shortening brain damage. Or, where even a fraction of the resources that build athletic palaces and pay the massive salaries of sweat-suited coaches could be deployed to libraries and research facilities and academic scholarships and the scholars to whom we entrust the education of our best and brightest. 

Which said, I forswear negativity or cynicism in the broader purpose of this inquiry. At the law school where I teach in a Masters program in Ethics and Governance, syllabus demands leave limited space for guiding themes and principles. So I look for opportunities to ask about some basics: What impels our human need for laws and codes of conduct in the first place? What different choices do societies make in the balance between incentives and coercion? With the fallibility of humans prone to deviant or non-compliant behavior, should we look to minimize the harm done by wrong-doers, or focus energy on leading by positive example?

The American economy and culture have two major sources for their metaphors –- the military, and sports.

• A corporate raider launches a blitz against its target. Companies competing for workers fight the war for talent.
• A successful mentor is the team captain. Career success brings recognition as an All-Star, or election to a Hall of Fame.

One of the finest trial lawyers with whom I was privileged to work, the late and great Peter Fleming (RIP 2009), drew upon his son’s experience as a D-1 football coach, to illustrate the personnel dilemma of a corporate leader:

“You work your butt off all week, to train and prepare them. On Saturday afternoon they take all that onto the field. And you’re stuck on the sidelines, watching while they surprise you –- for better or worse. Just the same with young employees.” 

It could be said that Kelly’s be-clouded departure was predictable. The broader signals of a tattered ethical fabric were there from the start:

• The 2010 death on a practice field of student photographer Declan Sullivan, sent 39 feet up a scissor lift despite winds gusting to 53 miles per hour.
• The suicide the same year of a sister-school freshman whose report of sexual assault by a Notre Dame football player received minimal attention and no school or law enforcement consequences for the player.
• The vacating by the NCAA of Notre Dame’s 21 wins over the 2012 and 2013 seasons for violations of the rules of academic integrity.

More immediately, not only had Kelly bolted his prior position at Cincinnati before the 2009 bowl games, with the Bearcats on their way to the Sugar Bowl -- he had done the very same in 2006, leaving behind his staff at Central Michigan to coach that team in the Iron City Bowl.

As it’s said, “Karma never loses your address.” Administrators at LSU might consider themselves forewarned by Kelly’s trifecta of premature evacuation. Post-season, before future years’ bowl games, they’d be advised to take away his phone and clamp him in an ankle monitor.

In the first act of Shakespeare’s Scottish play, the action is animated by the off-stage execution of the treacherous Cawdor. An otherwise minor plot device will echo to color Macbeth’s own fate: the traitor is credited with the morality of his final confession and his deep repentance -- “Nothing in his life became him like the leaving it.”

Subject to history’s possible revision, it may be said of Brian Kelly’s graceless flight from South Bend:

“Nothing besmirched his legacy at Notre Dame like the leaving it.”

 

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Vax Resistance? Gimme A Break

This is the effort a white-haired Chicago veteran went to, to get his Covid-19 shot this morning, at the VA hospital’s vax site where I volunteer:

In addition to the indebtedness that we all owe him for his service, he now enjoys the protection delivered by the best of science, medical research and good leadership.

And we share in common the attitude that Tucker Carlson is both scum beneath contempt, and an active and dangerous menace to the health and safety of our society.

 

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Book Review: Tim Harford, “How to Make the World Add Up"

“Two aristocrats are out horseback riding and one challenges the other to see which can come up with the larger number. The second agrees to the contest, concentrates for a few minutes, and proudly announces, ‘Three.’ The proposer of the game is quiet for half an hour, then finally shrugs and concedes defeat.”

 -- Professor of Mathematics John Allen Paulos, “Innumeracy” (Hill and Wang 1988)

There is no better go-to source of wisdom and insight in our complex and data-overloaded world than the weekly column in the Financial Times by economist Tim Harford. His latest book, “How to Make the World Add Up” (Bridge Street Press 2020, 294 pp.), now joins his others on my reference shelf.

Harford has accomplished the remarkable – delivering, under the guise of a work on coping with the complexities of statistics and quantitative information, accessible guidance grounded in principles of human psychology and behavior.  

Sympathy for his project is in order. It would have been on the verge of completion, early in 2020 when the pandemic broke out. Frustration would have been matched by opportunity – necessary re-writing in context of a quintessential case for the necessity to gather and assess best-quality data.

It would have been his challenge that, even as the world struggled to contain the virus, issues of incomplete and unreliable information were from the outset and continue to be pervasive – on the numbers of infections, hospitalizations, and deaths; the demand and provisions for testing and protective equipment; and the scope and magnitude of job losses and business failures. Data failings in all these areas continue to confound the design and application of strategies for mitigation, containment and recovery.

Credit to Harford that his book survived a Black Swan’s fly-over. Sympathy too, for the pressures of last minute revising to preserve the book’s structure while addressing a global crisis evolving on a daily basis. There are the occasional faint palimpsests of red-pencil attention -– imagine “note to self -- insert COVID reference here.” Happily for readers, they do not impede his narrative arc -– a set of behavioral “rules” by which readers are invited to gain confidence in their ability to penetrate the confusion that otherwise beclouds complex statistics-laden situations.    

Not a math geek? Intimidated by the difference between mean and median? Fear not. Harford writes in a non-technical vocabulary, advocating the importance of disciplined means to avoid conclusions or decisions that are hasty, under-evaluated or overconfident:

Be curious – be skeptical – recognize and manage the impact of your emotions – be aware of your fallibility.

Neither is his set of tools unfamiliar:

Beware the wrong metrics – avoid jumping to hasty conclusions – do not be led by such biases as survivorship or over-confidence – insist on the integrity of both data and their presentation.

In our time these appeals go back to the 1970s and the pioneering work of Daniel Kahneman and Amos Tversky, and such antecedents as Michel de Montaigne’s self-searching essays in the 16^th century.  

And those standing on the broad shoulders of Kahneman and Tversky have seen far in many fields. Their insights inform successors such as Philip Tetlock and Richard Thaler – also “big data” explorer Viktor Mayer-Schönberger, physicist Richard Feynman, sociologist and systems researcher Charles Perrow, and information design genius Edward Tufte.

Point of disclosure: I did not come to Harford’s work without a perspective of my own. The influential thinkers just mentioned figure in my advice to clients, and populate the syllabus of my graduate-level course in Risk Management and Decision Making. That raises the possibility of a self-reinforcing prejudice in Harford’s favor – the very emotional response that he himself takes pains to warn against.

I feel no need to confess error and recant. Some time ago I forswore reviewing books I would not recommend, and my enthusiasm for Harford is openly declared. Inconsistency with his advice would be both unironic and so minor as not to impair this proposal -- that as a primer for those seeking assistance, or as reinforcement for those already engaged, Harford’s very appealing book does a favor and is worthy of attention.

 

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Merci pour “Le Grande Thanksgiving” – As Art Buchwald Explained It To the French

Even with the many and perplexing challenges that seem out of control and continue to inflict deadly harm upon populations, economies, and social and political environments around the world, the American holiday of Thanksgiving presents much for which we should be grateful.

Vaccines are on their way – for which we appreciate the skill and dedication of their developers, give thanks to the medical and other care-givers and workers who have been tireless in their dedication and support since the onset of the pandemic, and offer prayers that the suffering and losses still to come may with activated and responsible leadership be at a minimum.

The arrival of a new political era cannot come soon enough – desirably with a recovery of the capacity to engage each other in dialog, strategies and actions for the common good in which we are all, for better or worse, responsible and accountable.

In the meantime, on a lighter note, it’s interesting to receive messages from friends in Paris, with whom we shared expatriates' versions of this special day during our years in residence there – suggesting that there may be a universality to the search for communal expressions of thanks.

We always found it difficult to explicate the legend of Thanksgiving to the Parisians – not least because they look down turkey as hopelessly déclassé and inferior to their better-regarded poulets and canards. We were grateful for the version supplied by Washington Post humor columnist Art Buchwald -- first appearing in the International Herald Tribune in 1953, and an annual staple for many years thereafter. It may serve as an invocation -- here -- whether your Thursday observation is by ZOOM, a local grab-and-go, or a traditional family gathering (in which case, for the sake of those you care about, please be properly masked and distanced).

As neither Buchwald himself nor the IHT remain available to be thanked, I can do no better than to wish for all a hearty chuckle; a safe, healthy and well-distanced holiday celebration; and the coming of better times.

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COVID-19: Florida’s Inexcusable Fiasco Goes National

 “There are no words” is not a default available to those presuming to take a public platform. Today, though, I struggle to express my anger and dismay over an experience with the corona virus – one that both strikes close to home and exposes the multiple consequences of the cascading failures of our country’s office-holders.

It falls specifically on Florida governor Ron DeSantis – incited as he has been by the abject failings of the bunkered White House, whose occupant from the emergence of the pandemic has confirmed on a near-daily basis his apt if vulgar characterization in July 2017 by then Secretary of State Rex Tillerson as a “f***ing moron.”    

It’s about an elderly friend in Chicago – a woman both indomitable in her fortitude and among the world’s most caring, sensitive and empathetic – always accessible, wise and perceptive with friends, clients and all who know and love her.

While bravely bearing a lifetime of severely compromised immunity, this gentle soul undertook in early June to fly to Florida. She was generously motivated by the desire to give care and support to an even-older relative. Regrettably too, she was credulously enticed by the attitude and messaging of DeSantis.

By then the consequences had long been evident of the blinkered failure of the Trump administration to appreciate the intelligence widely available – the literally vital necessity to stock up, close down, and take seriously the certain aggression of a novel virus that cared not the slightest for the disrespect and denial shown by the comprehensively ignorant. It was unleashed and spreading, to be affected only by drastic measures with social and economic consequences unknown to modern societies.

Sadly, she bought the governor’s blind-eyed optimism. Despite compelling evidence in the data and the science, DeSantis – along with his minions and enablers in Florida and his cretinous coevals in other states -- had resolutely opposed and resisted calls to close churches, parks and beaches. His wildly premature phase 1 re-opening in late April covered indoor dining, and his June 5 phase 2 extended to bars, theaters, and most retail.

For all of which, as wryly put by the Los Angeles Times, where that state too “for a brief moment … returned to bars, beaches and botox,” the still-developing extent of DeSantis’s tragic recklessness has been thoroughly validated as ill informed and deadly in its consequences.

So it falls on DeSantis, that my friend in all her innocent misapprehension spent three weeks in Florida within the scope of his misbegotten policies – nurturing her relative, and in close social contact with his community of the aged including a now highly suspect birthday celebration.

From which, there is this horrific added complication: My friend was robust and asymptomatic as she left to return to Chicago – taking a flight last Saturday evening. The next day she was immediately overcome with classic indications of COVID-19. Promptly hospitalized and tested positive, she is as I write released and isolating at home with her quarantining spouse – feeble, depleted, and barely able to speak.

At this point -- like the many other states that were too late to close and far too hasty to open, and which as of July 6 will be subject to the emergency order announced by Chicago’s mayor Lori Lightfoot that imposes fourteen-day quarantine requirements on travelers to our city -- Florida is over-whelmed. Under the incompetence of the DeSantis administration, there is no chance of tracing the source of my friend’s infection, or calculating the extent of its spread among the groups of at-risk elderly with whom she shared contact – not to mention the likelihood that she herself could have been a virulently infectious spreader on her airplane and in the airports she traversed.

Up to this week I had already been managing proximity with three early-stage cases – a college student, a millennial of world-class athletic stature, and a previously robust, marathon-qualified Gen-Xer whose very survival was at risk and who likely confronts long-lasting adverse pulmonary effects. These suffice to confirm that the virus has no respect for age or politics, or for the wishful thinkers or the deniers who would cry “hoax” or wish that it should miraculously “disappear.” They are instead enough to raise my anger level that even these cases could have been mitigated by competent policy-makers prepared to respect the intelligence and pay attention accordingly.

With that, what additional reaction is possible now, to the multiple threats in my beloved friend’s situation, both to herself and to all those to whom she was exposed due to the compounding negligence of DeSantis and his fellows? Frustration and outrage are insufficient, that she and others are sacrifices to the ignorant political optics of elected officials and their devotees.

Last night I made a no-contact delivery of a get-well card and a bouquet of flowers. That -- along with my heartfelt wishes for her recovery and this telling of her story, which I invite you to share – is what I can do, for my friend and for us all.

Because nobody who has bought into the hoax and conspiracy theories will have stayed to read this far, I need not advocate for changes of views; if there is a message to the sympathetic from this pulpit it would be one of simple encouragement:

Pay attention – be cautious – keep distances – keep wearing your masks. Brave people are putting their lives on the line for us. Respecting them and each other is the least we can do.  

 

 

A Valedictory for My Students: Keep the Bar High

My law school teaching in Paris -- “Risk Management and Decision-Making” -- is wrapping up for the spring semester. Classes at ZOOM distance are finished – final papers and grade submission await. To my regret, on-going lock-down means I will miss the students’ graduation, unable to deliver my appreciation in person.

Here is a message of congratulations and encouragement I would have offered:

“Our course sought to be a testing ground – a gathering of professionals with a performance bar as it would be in the real world. It’s now your opportunity to stand tall out there and deliver, with the same focus, energy and confidence you showed to me.”

I assume and expect excellence from students – as would a supervisor, a manager or a client. In the worlds of business and the professions, there is neither time nor tolerance for less. Just as it is not acceptable for an employee to turn in a report or a project with the preface, “I’m not sure if this is what you wanted….” – I want students to ask, if a discussion topic has been obscure or they see an ambiguity in an assignment or a test.

Clarifying questions show both curiosity and interest, and a shared commitment to the efficient use of time and energy. In both contexts: understand what’s expected – do the necessary research – draft and edit until the result is your best work.

And bring best efforts – the classroom should be preparation for the workplace. So it was, back when I was among the eighty law students who filled the old-style amphitheater of my largest first-year class. There we were obliged to recite on our feet, knees knocking, in response to the professor’s intimidating summons and pointed finger: “You – stand up and make a noise like a lawyer.”  

For a professional to do any less is to detract from stature, credibility and effectiveness. Examples abound:

Take the attempted ploy, “I’m just a small-town lawyer” and its distasteful equivalent in other fields. No perceptive adversary needs to be told. If truly the case, a real yokel will be revealed immediately. If not, the rule not to under-estimate an opponent means that while competence will be apparent, an attempt to be disarming but obviously disingenuous will be seen as insincere and untrustworthy.  

Related was my experience with a newly arrived corporate general counsel – by his admission from a transactional background and unfamiliar with disputes and litigation. His self-effacing introduction was along the lines, “I’m new here, and you know this is not my background.” He did himself no favors. Instead he invited the assessment of his peers that he had not done his work, was indeed not qualified, and never had his views given the weight and credibility he thought he deserved.

Not to suggest that there is anything wrong with an appropriate degree of restraint and humility. Boastfulness will be revealed all too soon as well, when results have spoken; as baseball legend Dizzy Dean said, “it ain’t bragging, if you can do it.” Or as the story goes of ancient Greece, you never asked a man if he was from Sparta – if he was, you’d have known it, and if not, you’d hurt his feelings by asking.

In these days of physical isolation and distance communication there’s a new form of avoidable self-inflicted wound: the footer on the message or the e-mail – “please excuse my typos” or “kindly forgive the orthography and erroneous auto-corrects.”

Don’t do it. True there are no virtue points for an error-free message – because that’s what’s expected from a professional anyway. But neither is there a license for sub-standard work. An advance disclaimer only draws attention and closer scrutiny. Put attention instead into extra editing – fix the weaknesses in logic and presentation, over-ride the errant auto-corrects, and catch the typos rather than apologize for them.    

To my smart and appealing students, then, with regret we have not been on campus together:

“Godspeed – keep it up -- all success to you, out there where a world of opportunity awaits.”

 

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Clorox, UV and Coronavirus – Trump’s Ignorance Stirs A Toxic Cocktail

“So, supposing we hit the body with a tremendous — whether it’s ultraviolet or just very powerful light…. supposing you brought the light inside the body, which you can do either through the skin or in some other way….

 “I see the disinfectant that knocks it out in a minute, one minute. And is there a way we can do something like that by injection inside, or almost a cleaning? Because you see it gets inside the lungs, and it does a tremendous number on the lungs, so it would be interesting to check that.”

 - Remarks by President Trump, Vice President Pence, and Members of the Coronavirus Task Force in Press Briefing, April 23, 2020

 This dangerous display of the boundless ignorance of POTUS 45 was also the day of my last class for the spring semester -- “Risk Management and Decision Making,” by ZOOM with a group of smart and curious law school students at CY Cergy Université in Paris.

That coincidence lets me appreciate and say thank you to my students – the experience was as rich for me as I hope it was useful and fulfilling for them. With brief context setting, it also tees up the punch line lesson offered here.

Our course examines how humans with all our foibles and limitations make decisions under complex and uncertain conditions. The contexts are broad – personal and social, but especially professional, business and political; the processes are often sub-optimal, and the outcomes frequently somewhere between poor and disastrous.

Topping a multi-disciplinary reading list is the pioneering work of Daniel Kahneman and Amos Tversky, whose landmark 1974 paper essentially invented the field of behavioral economics – recently brought down for public accessibility by Kahneman’s own encyclopedic “Thinking, Fast and Slow” (2011) and Richard Thaler’s “Misbehaving” (2015).

Together we explore the many sources of recurrent but avoidable decision-making bias, flaws and error -- among them are herding, over-confidence, proximity bias, anchoring and frame blindness, hindsight, rationalizations, and leadership over-ride and disregard for non-confirming evidence.

Toward the end of the semester, the students take up with enthusiasm the Dunning-Kruger effect – that the less you know about a complex topic, the more likely you are to display your ignorance in flawed but over-confident actions and decisions that reveal – often with tragic and highly destructive consequences -- how little you actually know.

That trait is conspicuously displayed by POTUS 45. His egregious invitation to ingest or inject toxic household cleansers or internalize UV radiation is only the latest. Recall his allusions to nuclear weapons against hurricanes and wind turbines as cancer agents, a weather map re-drawn by sharpie, his challenges with the basics of aircraft catapults and domestic and international geography. The list seems endless of his stunning disregard and disrespect for technical, scientific and professional knowledge and expertise.    

In an affectionate joint biography of Kahneman and Tversky, “The Undoing Project” (2016), author Michael Lewis includes a version of Kahneman’s single sly metric for intelligence: “the smarter you are, the faster you realize that Amos Tversky is smarter than you are.”

To their credit, my agile students will recognize that this maxim honoring the brilliance of Kahneman’s friend and collaborator can be inverted:

“The extent of someone’s stupidity can be measured -- how long does it takes to realize how stupid Donald Trump truly is?”

 

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Blockchain and Bitcoins – Notes From the Sidelines

"Know when to hold ‘em, know when to fold ‘em.”

           -- Don Schiltz, “The Gambler,” 1976, Kenny Rogers's hit in 1978

“You work with risk all the time. What’s the deal with blockchain and bitcoins?”

I have long resisted these invitations. But enough reader inquiries prompt some thoughts – mostly skeptical and cautionary.

To start, I claim no expertise. Nor do I presume to offer recommendations from the fulsome library of available literature. That’s because I am a dedicated observer of the Dunning-Kruger effect, especially its most trenchant real-world application – that the less you know about a complex subject, the more likely you are to commit grave decisional errors based on a combination of ignorance and over-confidence.

My students in Risk Management love Dunning-Kruger. For homework they identify cases where the effect was handled either well or poorly. An example of my own was the decision to part company with a financial advisor, after I had done enough inquiry to appreciate that he knew no more than I did about the then-volatile state of the state of a market bubble.

The literature is wide and varied, in substance and quality. To those inspired to delve into either blockchain or the grab-bags of bitcoins – please be skeptical enough to resist believing that wisdom comes from those seeking to sell something, including advice.

Here then are a few things I believe I know:

One is that blockchain – very briefly, the recording of bi-party transactions on a secure and anonymized distributed ledger – will be transformative, highly disruptive and immensely valuable.

Why? Because leaps of this scale and long-term effects are rare but real. Think of the railroads – human flight – the transistor – and yes, the iPhone. Also more to this topic, the hugely reduced customer transaction costs and information arbitrage in such knowledge transfers as negotiated Wall Street fees and self-booked airline tickets, Uber and Lyft and Airbnb.

Where, when, and which players will emerge as winners? Too early to tell. There is no reason to believe that “Amara’s law” will not apply. That observation, hardly a “law,” is empirically observed -- basically, that the effects of a new technology are over-stated in the short run and under-stated in the long. (Compare the lift-off and flameouts of Webvan and Pets.com two decades ago with the current explosive growth of Instagram and WeWork.) At this early state of blockchain’s evolution it would be futile, and potentially very costly, for an amateur to try to pick the likely surviving successes.

As for Bitcoin and its coevals, JPMorgan Chase CEO Jamie Dimon’s characterization was of “a fraud…worse than tulip bulbs” -- which he only slightly walked back to say, “if you’re stupid enough to buy it, you’ll pay the price for it one day.”

It is observable that bitcoins fail to date to meet the definition of “money” – none of them satisfying all three conditions: a stable and widely-accepted unit of accounting, a medium for exchange transactions, and a credible store of value.

This does not de-legitimize their inclusion in the world of commodities, where trading markets and exotic financial instruments are based on everything from jet fuel and gold to pork bellies and orange juice concentrate. Except that for these and others, zero-sum trading eventually depends on real end users – whereas crypto trading markets and prices are hostage to a continuously-renewed supply of credulous new participants, to replace those busted out and left nursing their losses and their regrets.

It is true that the entire crypto adventure has transferred considerable real money from the later arrivals to the earlier, although the dramatic Bitcoin price run-up to nearly $ 20,000 last December, and its precipitous fall below $ 7000 last week, left many of the later sheep shorn to the buff. And the earlier punters, now optimistically holding onto unrealized gains, are at the mercy of price fragility with the refreshing supply of “greater fools” apparently dried up.

As for those looking to profit from the infrastructure of crypto trading, I invoke a family relative, a 19^th century entrepreneur who made a fortune out of the California gold rush, not by prospecting or investing in the mines or claims, but by founding an import business to store and sell extravagantly priced fruits and vegetables to the miners and their camp followers. He did very well out of his customers’ pockets – like today’s authors of “how to” manuals on day-trading, as well as casino operators and sellers of lottery tickets.

A note in closing, to warn of the hazard built into the entire crypto universe, as third-party transaction support, custodial services and financing sprout up around the original world of two-party contracts.

That is, history is replete with schemes, sure to emerge with crypto’s evolution, that inhere in the ability to falsify and double-count inventory, multiply the pledging of collateral, and monetize fictitious client assets – from the bogus customers of Equity Funding and the Salad Oil scandal with its storage tanks of water five decades ago, to the unconfirmed mortgage portfolios at Colonial Bank in recent years.

As Citigroup CEO Chuck Prince put it colorfully in July 2007, only months before losing his job when the party ended at the bank, “as long as the music is playing, you’ve got to get up and dance.”

For myself, if all the same, I’ll be sitting this one out.

 

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Open Letter to EY’s Mark Weinberger: Do the Right Thing – Resign

I’ve just sent this letter to Mark Weinberger, the global Chairman and CEO of EY – third largest of the Big Four international accounting networks – and a member of President Trump’s Strategic and Advisory Council.

Dear Mark –

Somewhat uncertainly attributed to Winston Churchill, on the belated shift in US policy to support Britain in advance of the outbreak of World War II, is the sentiment that, “the Americans will always do the right thing, after exhausting all the alternatives.”

President Trump, in his unhinged press conference earlier today, put on enough spin to nauseate a dervish in re-doubling his repugnant position of Saturday that “many sides” were to blame for the murderous racially-motivated violence in Charlottesville the day before. In doing so, he just handed you the perfect second chance to do what you should already have done – resign from his Strategic and Advisory Council.[1]

Your anodyne tweet of yesterday (@Mark_Weinberger), that it is “time for business leaders and government to unite to help ensure we become stronger through our differences” no longer will wash. Having inherited both his money and his bigotry from his father Fred, and going to school on the ethics and tactics of that epitome of corruption, Roy Cohn, Donald Trump is not about to tolerate your unifying aspirations, however nobly intended.

You’ve known his character for years. Ernst & Young in 2004 qualified its opinion on the financial statements of Trump Hotels & Casino Resorts Inc., for its “substantial doubt about the company’s ability to continue as a going concern.” As your lawyers will tell you, the likelihood of recidivism for a huckster and a charlatan is essentially 100%.

That is today no more plainly displayed than in the reported absence of “self-discipline, control and personal honesty” in Trump’s golf game. Give credence to the observation of P.G. Wodehouse, that “to find a man’s true character, play golf with him” – as applied to the description of Trump’s game by former ESPN columnist Rick Reilly: “This guy cheats from start to finish…It was just one free mulligan after another.”

It should be a no-brainer. Not only do you have ample cover – at this writing there are already five other departures, led by Merck CEO Ken Frazier's departure from the President's American Manufacturing Council.

Moreover, you’re practically immune from any threat of blowback from the bloviator-in-chief, because you and your Big Four colleagues have a lock on the world’s large-company market. That presents you all with other very grave concerns (for which, see my recently-published book, “Count Down: The Past, Present and Uncertain Future of the Big Four Accounting Firms.”) But the legal requirement for public-company audits means your collective client base has nowhere else to go.

The call for you to act first went up yesterday – Caleb Newquist at his Going Concern clipped your own words, “We have to back up our rhetoric with action.”

Not all will agree, of course – but Newquist with his massive readership among the youngsters of the profession has his finger on its pulse – and you would be wise to give heed.

If you expect credibility with your young workforce, who drive your firm’s prosperity today and will one day inherit your mantle of leadership, then “back up your rhetoric.” The legacy for which you will be remembered will be marked by your behavior in response to the unacceptable dog-whistling now shrilling out of the White House.

Respectfully yours –

Jim Peterson

[1] Corrects earlier version which mistakenly referred to the American Manufacturing Council.

 

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“Younger Next Year”? He Should Have Lived So Long!

The recent untimely death at age 58 of Dr. Henry Lodge, who achieved a cult following and built an author’s franchise with his 2004 book, “Younger Next Year” (Workman), struck a personal note and also inspired some refreshing of the syllabus for my graduate-level course for business and law students, “Risk Management and Decision-Making.”

My own copy had arrived as a gift from a proselytizing colleague. Lodge’s core message was light-heartedly simple, and resonated with a sizable sub-group of the vast cohort of baby boomers – namely, those seeking not to age into overweight, sedentary and unhealthy decline -- that is:

• Shift from eating the junk food that you know is crap, to a readily available diet both tasty and nourishing.

• Get a lot more exercise, of whatever kind you can.

• Have a source of engagement and commitment to someone or something important in your life, rather than withdraw into reclusive and self-destructive isolation.

Lodge was cut down by a deadly prostate cancer, before he could live to fulfill his proposition – that while the length of that “last one-third” of a full lifespan is never assured, because subject to fatal events that are both unpredictable and unpreventable – notably random fatal illnesses and accidents – the opportunity to extend and enhance the quality of an active life, right up to the end, is within the influence of disciplined and deliberate choice-making.

Fans of Lodge with sufficient remaining long-term memory may find his cancer to reprise the massive heart attack that in 1984 felled James Fixx at the age of 52. Best known for “The Complete Book of Running” (Random House, 1977), Fixx was influential in the nationwide spread of jogging – having started running himself out of concern for his family history of coronary disease and his father’s early death – also stopping smoking and losing over sixty pounds.

Which said, Fixx’s obituary noted that an autopsy showed that he had two blocked and untreated coronary arteries. So while an examination of the choice-making of Lodge and Fixx in these irony-tinged deaths might impel those more cynical or less motivated to skip their next spinning class altogether in favor of a stop at McDonalds, a careful comparison might criticize the latter’s level of attention to his knowable at-risk condition.

Or as the wisdom attributed to Thomas Jefferson puts it, "I am a great believer in luck, and I find the harder I work, the more I have of it.” In other words, manage what you can. And also realize that you can never manage it all.

As my students explore, the very best of decision-making in contexts of complexity and uncertainty cannot avoid the real possibility of an intensely undesirable outcome. In a world comprehensively illuminated by the scholarship of Daniel Kahneman and the late Amos Tversky, going back to 1974 and their seminal essay, “Judgment Under Uncertainty: Heuristics and Biases” (Science, New Series, Vol. 185) and rolling forward to the former’s encyclopedic work, “Thinking, Fast and Slow” (Farrar, Straus and Giroux, 2011), simple “bad luck” will on occasion overwhelm all care and deliberation.

Which means that those tempted to view Lodge’s premature death as proof of the futility of good choice-making – who would toss aside their jogging shoes in favor of a simultaneous reach for both the television remote and the platter of cheese nachos -- are pursuing sub-optimal strategies with fully predictable negative consequences.  

 

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Fear and Loathing at the Airports – The Transportation Security Administration Brings Its Own

Which of these two scenarios at Chicago’s O’Hare Airport should be more distressing? The flight I missed by three minutes a week ago, in the midst of the nationwide chaos caused by the TSA’s managerial ineptitude and deliberate slowdown tactics, or my ten-minute breeze through their checkpoint yesterday, when a plethora of uniformed staffers were standing around giving attention so cursory as to make illusory the notion of “security.”

(A detour from my usual topics of attention? The TSA muddle offers at least a teaching moment for my graduate students in Risk Management, as well as useful “how not to” lessons in strategy, communications and client service for those in business and professional services.)

A full hour and a quarter in the TSA scrum last week gave me ample opportunity to observe the agency's clear strategy of dilatory “work to rule.” Just one lane was open, which used the wretched scanner model that forces the emptying of pockets down to a chapstick. The single burly and surly TSA staffer had no back-up to handle any extra pat-downs, but was stripping and re-scanning frustrated would-be passengers one at a time, literally down to their cufflinks, while the waiting line stretched long enough down the concourse to deserve frequent traveler points of its own.

Yesterday, by utter contrast and at the same hour of the day, processing was so expedited that there were as many TSA personnel lounging around as there were passengers in the fast-moving queue. Three lanes were open, using the walk-through machines. The announcement was “coats and shoes stay on, computers stay in their cases.” Responding to “step right on through,” we moved so fast that the supply of plastic bins had all piled up on the other side.

Along with the rest of the flying population, I had planned ample extra time – with my own prior mis-adventure and taking seriously the reports of thousands of missed flights and rows of cots broken out for airport sleep-overs. There was one visible result of TSA’s tactical shift – the early-arriving crowds simply shifted the bottlenecks to beyond the scanners, forming lengthy queues at the Starbucks and McDonalds, and putting seats in the lounges at a premium while they waited out their now-excess margins.

Transparently displayed as was this wild variability in TSA staffing and tactics from one week to the next, the agency’s rapid ability to shift gears completely deflates the credibility of its assertion that a long-gestating problem requires long-term (and doubtless costly) fixes. To the contrary, post-9/11 inflictions at the airports have never been more than agency optics and the political manipulation of popular anxiety. Requiring plastic bags for toothpaste and hair gel has no more detected or deterred determined aggressors than has the bare-footing of grandmothers. Effective profiling and incisive algorithmic analysis have real effect; not so, the costly, annoying and pernicious disruptions of the national transportation system for the sake of TSA hiring figures or overtime budgets.  

Perhaps worst of all – when my bilious exercise of my First Amendment rights should trigger a full-body search the next time I fly, my chances of identifying the responsible bureaucrat will be the same as the utility of the entire exercise – exactly zero.

 

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Paris In The Spring: Free Speech Limits on Saying “I Am Charlie Hebdo”?

This week wraps up my winter teaching engagement in Chicago, in anticipation of our seasonal return to France. It will give a chance for first-hand exposure to the charged atmosphere in Paris, after the terrorists’ attack of January 7 on the offices of the satirical magazine Charlie Hebdo, on which I have earlier set out some observations.

On February 26 just past, a full-house audience at the University of Chicago heard Zineb El Rhazoui, the Moroccan-born French journalist for Charlie Hebdo, who happened to be away from its office the day of the deadly attack.

She spoke under heavy if prudent security measures – under the title “Who Is Charlie Hebdo?” – and under two broad themes: “Should freedom of speech include a protected right to blaspheme?” and “If so, how in a civilized society should that right be exercised?”

Not surprisingly, El Rhazoui came down squarely on the first. Threats to her own safety and the eleven murders at her office give her a direct personal stake in Voltaire's principle, as she predictably invoked it, that “while I may disagree with what you say, I will defend to the death your right to say it.”

Few of us would be so brave as that – which reflects on the legitimate scope of the popularly embraced slogan, “Je suis Charlie.”

As for the second, the challenging part of the evening was El Rhazoui’s sketch of the limits on free speech under French law – impositions that would be unacceptable under the broader principles of the American Constitution’s First Amendment – forbidding expressions of personal “racisme” or advocacy of Holocaust denial.

First, Voltaire himself did not trim his views so fine.

Second, that a journalist for a satirical cartoon periodical should find these restrictions tolerable would be a stretch beyond the core American proposition: that subject to the narrowest possible limitations, all speech is to be protected, however repugnant or hateful or ad hominem, for the precious sake of liberty of thought and expression, and freedom from censorship from any source, public or private.

Although, in response to an audience question, El Rhazoui did display a consistency that eludes the restrictive French legal system, by endorsing the free-speech rights of the fiercely anti-Semitic comedian Dieudonné – a regular target of French law enforcement including his January arrest, right after the attacks at Charlie Hebdo, for alleged violations of the country’s laws on hate speech.

Lurking in the background of this theoretical underbrush, it is not easy for an American to find a clear analytic path through the tangled rhetorical thicket grown up around the complicated French concept of laïcité.

Easy and perhaps democratically admirable at its most general, that principle justifies the French national refusal even to gather data on the racial and religious demographics of its population. But it has its darker reverse side, in the deep, pervasive and persistent impact of scarcely-concealed structural bigotry and discrimination based on personal qualities such as name, skin color and country of origin.   

The French political scene continues to present a clouded picture to an outside observer -- from the “dog whistle” signals by which the far-right National Front’s Marine LePen has re-cast if not disavowed her father’s cruder language, to the embedded inability of President François Hollande and his economic minister Emmanuel Macron to sustain a workable majority in the National Assembly in favor of even a marginal set of anodyne “reforms” to the country’s sclerotic economy.

To arrive in France in the welcoming beginning of its spring, then, with both flowers and curiosity in full bloom, will be to travel in search for the warming clarity of sunlight.

 

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