Herry Chrismannukakwanzaakmas

We'll be gone for 2 weeks, so there will be limited blogginess. Enjoy my weakness for a cappella.

Wipe It On Your Robe.

Apparently, Justice Thomas is not happy with his job. Perhaps this is karmic turnabout given that so many think he is not very good at it.

That said, to openly complain about your post in the highest court in the land is disrespectful to that Court. Mr. Thomas, I, and liberals everywhere, understand your pain. We ask that you serve as long as you can possible stand it, say, until January 20, 2009. After that, we'll buy you season tickets to Nascar and that Winnebago you want so you can arrive in style.

[ Yes, that's actually what he wants - an RV. ]
[ Oh, and this will be the first time in a long time the man is notice for something other than being a ASCJ]

Ooh, My Baseless Calorie Estimate is So High!

http://www.nytimes.com/2007/12/20/health/nutrition/20BEST.html?_r=1&oref=slogin

Anyone who has ever stepped on a piece of gym equipment knows that calorie counts are like guessing the number of jelly beans in a jar. To get an accurate count you'd need a chest strapped heart rate monitor, a realistic insert of your weight, your age, a machine regularly maintained so that tension readings were accurate....and the whopper -- a good sense for how your metabolic rate measured up with that of the average person with your height, weight, sex, and age.

Here's how I measure:
1. How much do I like doing that particular exercise? Hand-bike? Hate it. Not doing it.
2. How disgusting am I when I get off the machine? (Anyone who has played a sport with me knows that I do not sweat. I just degenerate into grades of gross.)
3. Over the course of a week or so, where do I notice I am losing some weight. Usually, I notice if I am growing a tummy or not.)
4. Run. Nothing, except perhaps rowing, is as strenuous.

Mukasey Putting Up a Chinese Wall

WaPo reports that Musakey will be setting up a screen between DOJ and the White House so as to preserve the independence of his own office/prevent a repeat of the AUSA firings scandal.

I think this is a positive step in that politically driven prosecution smells a lot like corruption, and not the passive, vote-for-dollars, kind. Rather, it is the go-out-and-impose- your-will-on-the-legal-system kind.

That said, I am not sure that the Chinese wall is appropriate by DOJ. Unlike watchdog agencies, such as CBO (leg) and GAO (exec), DOJ was not chartered to be independent. It is only the culture of independence that has persisted for decades that provides that shield. A la Cheney, the DOJ sees itself in the executive but, being made up of people who swore when entering the bar to be officers of the court, also part of the judiciary.

Is it inappropriate for the President to go in there and dictate to prosecutors, thus eliminating prosecutorial discretion? Again, nothing in the law as I understand it prevents that. It is just "not how things are done." It is my opinion that they are not done that way because the independence begets a sense of fairness by those involved, contributing to the permanence of the rule of law in this country. But, again, that's just an opinion.

Now, Mr. Mukasey, let's see if you can keep up that wall.

DFW - I'm back.

...and I can confirm that there is nothing to see.

Hats Off to Harvard.

I realize that many of you non-lawyers or non-Bostononians may be unfamiliar with this classic article. I give the Crimson credit for running it and leaving it up in their archives.

As RDBF says, "I give them credit for doing it in public."

Linux....who will win? Results Show.

I lost. There, that saved you 2 hours of watching rehashed clips and manufactured ire. (You want that, you'll need to see Survivor: China. Next season is "Survivor: survivor, where the producers compete to see who can keep the show on the air)

BG: I was trying to install linux on an aging HP laptop (Pavilion N2415, AMD Duron, 256MB, 10Gb)

How I lost: First, I tried to partition space and create a dual boot system. Really hard. Then I gave up and tried a clean install of Ubuntu. Didn't work because Ubuntu installs off a "live CD" -- which it a CD that actually boots a full version of Linux. Once you are running it off the CD you can use it to install the OS to the hard drive. That's great if you have the processor for it and 1Gb of Ram. I did not.

So, I was using a clean install of Fedora. That worked - though it was not much faster than XP. That would have been fine, except for the fact that I needed (a) a wireless card and (b) Citrix.

Wireless: If you have a newer machine and a newer card, someone might have written a Linux driver for you. Celebrate. If not, you need an NDIS wrapper which simulates how Windows treats the card. You install that, and then you install the driver for the wireless card. Yeah. Right. Not happening.

Citrix: I skipped the wireless fight to see if I could get Citrix running to log into my office account. Without this, the whole experiment would be useless. I needed Open Motif installed to use Citrix, so I tried installing it. Again and again and again, using every permutation I could imagine (or find online). Nothing worked. That is, I could install Open Motif, but Citrix would not install because it claimed it could not find it. This is apparently a known issue that others have overcome. I was vanquished.

What I learned: (Licking wounds)

1. Linux is a lot more powerful and user friendly than I remember from earlier versions. I can see installing it really really easily on a desktop. The Live CD is a god-send because you don't need to use the command line to install it.

2. www.ubuntu.com rocks. People love it-count me in. It comes with everything you need.

3. Mandriva (www.mandriva.com) also rocks. It is a Mandrake Linux derivative. It's main selling point is that the company makes a bootable USB version for about $60. It's a 4GB drive with a full install of linux. With this, you can pretty much hijack any machine for your own nefarious purposes.

4. I am happy with robust OS's. I know Windows. I am gaining expertise on a Mac. Of course, you don't need that - Macs just work. Linux? That's staying on the back burner for now.

Monday Morning Roundup

1. Da Pats. Still, weather is the great equalizer. And while everyone talked about the cold and the rain, I think the Ravens showed us the real equalizer: wind. The better teams right now are throwing teams.

2. Giant Losers. Why? See post one - wind. Eli, a spotty passer in my opinion, couldn't contend with the wind.

3. The Dolphins! It's almost disappointing to watch them win. It is not disappointing, however, to see that they still play to win. That is the sign of a true pro. Of course, they had to injure Ray Lewis and Kyle Boller to get there. I am not saying they did it on purpose. I am just saying that the Ravens were a 4-9 team with their best defender and second string QB.

Sail. Boats. Together Again.

European companies are looking to reduce cargo ship power consumption by 30% through the use of sails. Well, kites. Really foils. Just watch the video.

High Priced Lawyers, Screwing Up.

Rusty Hardin, the lawyer for Roger Clemens, lambasted George Mitchell and his report on steroids in Major League Baseball. “He has thrown a skunk into the jury box, and we will never be able to remove that smell,” Hardin said. “There has never been one shred of tangible evidence that he ever used these substances, and yet he is being slandered today.”

- WSJ Law Blog.

WSJ got it right when quoting a libel lawyer. Clemens is named in the report, in writing. That's libel. When you defame someone orally, that's slander.

If you want to get technical, both allegedly occured yesterday as the buzz rose to its current caucophany. Pundits, pundits everywhere and not a thought to think.

Legal practice tip:
Slander = Spoken
Libel = library = written word.

And it's sturdy!

First off, that is not a doctored photo. I have to keep looking at it to be convinced. Need proof? The lighting on the rig is correct and the whole thing is too akimbo to be anything other than organic.

Let's Go Digital's editors decided, "Let's go put ourselves in mortal danger!" They tested high end DSLR underwater housings both for the camera's underwater color performance and the case's durability, ease of use, and feel. How? By flying to the Bahamas and tossing a bunch of chum in the water. That's how I stay on my toes when attempting to learn a new $5000 piece of equipment while under water -- attract predators.

They liked the Nikon D80. The Shark thought it crunchy and tough, but it had a pleasant 'eau de yuppy'.

Intentionally racist, or merely an insensitive turn of phrase?

I had the following exchange after making an offer on a $500 tablet pc offered on Craigslist: (I have inverted the convo for ease of reading and I took out my name and email address. No other edits were made. The poster put her email on Craigslist, so I left it in here).

On Dec 13, 2007, at 11:07 AM, #### #### wrote:

Wondering if you'd consider a lowball offer - $300. $500 was far more than I wanted to spend.

##

On 12/13/07, Salah Salem < salahesalem@gmail.com> wrote:
What do u think
Sent from my iPhone

On Dec 13, 2007, at 2:19 PM, ##### #### wrote:
I think $300 would go a long way to pay for that iPhone.

On 12/13/07, Salah Salem <salahesalem@gmail.com > wrote:
I have an iPhone
Sent from my iPhone

On Dec 13, 2007 3:52 PM, #### ##### wrote:
Salah,

Your emails all bear a signature reading "Sent from my iPhone." I realize this is not your ideal offer, but I will leave it open nonetheless. If you are willing to go to $300 at some point, let me know.

Thank you,
####

On 12/13/07, Salah Salem <salahesalem@gmail.com> wrote:
i have someone offering 500. ur offering me 300 for a laptop that still has 80 gb hd drive, 1 gb of ram, microsoft office 2007 and centrino 1.6? office itself is 200, so go do ur research rather then trying to jew offer me.

On 12/13/07, ####### #######:
Salah, Many identical machines are on sale on ebay for the price I offered. If you wished to decline the offer, a simple "no" would have sufficed.

Intentionally racist, or an insensitive turn of phrase?
Am I right in thinking that this is more insensitive/offensive that calling an idea or action "retarded"?

Would you trust this man? Perhaps no.

Which is why that is not the photo I will be using. More on that when it is actually posted to the firm site.

Why didn't I go with this photo? Aside from your snarky comments (and I thank you heartily for them), the reaction I generally got was either, "You look smart," or, "You look smug." I can't risk the latter.

Would you trust this man?

Mortgage "Fix" - Taxes

Praise from this blog to Bush is rare (if not non-existant), but, then again, so is praise from POTUS to Congress. Here, we go, two wrongs copulating to produce a right (it's recessive, take a look around):

Second, Congress needs to temporarily reform the tax code to help homeowners refinance during this time of housing market stress. Under current law, if the value of your house declines and your bank forgives a portion of your mortgage, the tax code treats the amount forgiven as taxable income. When you're worried about making your payments, higher taxes are the last thing you need. The House agrees and recently passed this relief with bipartisan support. Yet the Senate has not responded. This simple reform could help many American homeowners in an hour of need and the Senate should pass it as soon as possible.

Changing the tax code can also help state and local government do their part to help homeowners. Under current law, cities and states can issue tax-exempt bonds to finance new mortgages for first-time home buyers. My administration has proposed allowing cities and states to issue these tax-exempt mortgage bonds for an additional purpose: to refinance existing loans. This temporary measure would make it easier for state housing authorities to help troubled borrowers — and Congress should approve it quickly.

- POTUS, Dec. 6, 2007

The House measure he's referring to is the Mortgage Cancelation Relief Act, H.R. 1876. As it stands, the IRS sees everything as income, so when your lender says, "You know what, the home I financed wasn't worth $400K, it was worth $350K, so I'll lower your mortgage amount (and thus your payment)," the IRS sees this as your having made $50K. Goodbye high mortgage payment, hello crushing additional tax burden. The House fixed that by simply excluding these write-downs from the definition of "income."

This bill is not yet law. The Senate has "read it" and sent it to Committee. I have to imagine they are fast tracking it. This may do more good in 1-2 sentences than the whole of HOPE NOW.

Entrapment.

The NYPD has clearly solved the terrorism problem. Next up on the list, samaritanism.

The sting: Leave a bag in a conspicuous place, like a restaurant, and then arrest someone when they see it and make off with it. "But what if the person took it in the hopes of returning it?" Tough Toffee.

Want More? NYPD apparently thought they were wasting their time with this. [I'll wait] .... SO, they inserted a real Credit Card owned by an NYPD pseudonym. Now the unwitting felon has stolen a CC, which in NYC is grand larceny.

First, has New York gotten so safe that the cops have to resort to creating crime?
Second, this is entrapment, no? If you draw someone in to buy drugs, that is not entrapment because they had in their heart the desire to commit the crime. The cops did not create that. Here, the person had no such intent. At most, he or she found an abandoned object. Or worse, they now have to stand up in court and explain away their good samaritanism.

Oh, and NY has a "good samaritan law," but neither it nor any version of it in any other state, extends this far. Those laws protect people who attempt to rescue or assist someone in danger from tort liability if they screw up. They don't ever require someone to proactively return a lost object.

[For those wondering - I am doing doc review and this is jogging my brain]

Pixar Fanboys!

Here is an illustrated list of Pixar in-jokes, from Toy Story through Wall-E, including screen-caps. It is a fan-boy's dream.

I knew about the Birds, and the Old Man, but even I missed over half of these.

A Get Out of Jail Free Card

Are rich CEOs more likely to receive a fine, while those lower down in the corporation receive jail time? The result in the Brocade backdating case feeds into that supposition.

After a quiet stretch, last week was a big one on the backdating front. Stephanie Jensen, a former human resources exec at Brocade was convicted by a jury on backdating-related charges.

And former UnitedHealth CEO William McGuire agreed to forfeit
about $620 million in stock-option gains and retirement pay to settle civil and
federal-government claims related to backdating.

- WSJ Law Blog.

Why? FIrst, let me take a few misconceptions of the table:

1. Backdating is not a crime. How you account for options backdating is a crime.
   
   (Primer: An option is an option to purchase a stock in x number of years, usually at today's price. You are betting that the price goes up. For example, Google options issued at $10 a share 10 years ago are today worth over $700. If you have 10,000 of those...call me. Backdating an option happens when you say "I don't like today's stock price - but the price last January was good, so we'll issue the option today, but date it as of last January so you get that price.)
   
   This practice is shady, and is likely going to be illegal very, very soon. That said, it is not illegal now -- what is illegal is not accounting for it correctly. When you backdate an option as of last January, you have to go back to last January's financials and reflect the issuance of new equity options as of then. This is a BIG pain because you may have to restate your earnings, profits, cash flows, and (here is the kicker) amend your filings with the SEC -- which would let everyone know what you are up to. Companies didn't want to do that.
   
2. Backdating is not a crime. People claim that the CEO (the usual recipient of backdated options) is liable because he or she knew it was happening. Sure, but if the practice is not illegal (and the CEO would have been so told by company counsel), who cares? Now if someone told the CEO that it would not be properly accounted for...that's a different story.
   
3. This is not O.J. This is not a case where the CEO got a legal dream team and the accounting staff got the shaft. The company obtained counsel for both and paid for it, likely falling back on their director & officer insurer to foot the bill. Thus, the person likely got similar, if not the same, level of representation.

So perhaps this is just a case of intent. The accountant knew backdating options required a restatement and ignored it. The CEO? He or she must return the profits but lacks the intent necessary for criminal liability.

Burj-eoning Bajillionaires Take Note

Need the next "best address" -- try the Burj Dubai. Set where else(?), it's going to be *twice* the height of the empire state building.

Project costs exceed $20B, because in addition the building, they're building a mall, a lake, and 19 other highrise apartment building for this thing to lord over a la Sauran's tower and to act as a "crumple zone" if any of the engineers forgot to carry the one.

Video Here.

Silly - but thought provoking.

seen in a forward:

How Smart is Your Right Foot?
Careful! This is so funny that it may boggle your mind. And if you are
anywhere near as stubborn as we are, you will keep trying at least a few
more times to see if you can outsmart your foot, but you can't.
1. While sitting at your desk, lift your right foot off the floor and
make clockwise circles.
2. Now, while doing this, draw the number "6" in the air with your right
hand. Your foot will change direction.
I told you so. And, there's nothing you can do about it!
Go ahead KEEP TRYING ALL YOU WANT!

Anyone know why this works? You can clearly move the two appendages independently. Why does rotation change that mix?

Anyone know other such quirks?

Patriots.

How about 'em? What I don't understand is why the Steelers gave up on the "Rover" style defense after one quarter. It was the only thing that helped them collapse the NE pocket and apply pressure on Tom Brady.

Mortgage "Fix" - HOPE NOW?

POTUS introduced the HOPE NOW alliance yesterday -- a voluntary industry alliance that will adopt the administration's request for a freeze on interest rates + a few other minor items. The reaction has been extremely skeptical on both ends. (This is a conservative take).

The Good: There is no government money going to the program. That's consistent with my view from yesterday.

The Bad: This plan does nothing. Now, I want the plan to do nothing, so why am I against this? Because it is a political play to move this problem past the christmas season (and avoid the personal interest stories on every cable network searching out a xmas eve foreclosure) and into the new year. That's it. So what do we do then?

A few more notes:

• POTUS wants $50M for mortgage counseling. That's silly. Educating those in trouble is too late. How about adding $1.5B for financial education in high school? That would do more to strengthen this economy than most any other short term fix. "Here kid. This is how you balance a check book, this is a stock, this is a bond, and this is how not to fall prey to predatory lending."
  
• People are talking about a second "meltdown," namely one related to people's second mortgages or the mortgages of "prime" borrowers (those with good scores) who were sold loans much pricier than they needed. First, the whole idea is really fuzzy -- which is great if you later want to claim you saw it coming, whatever form it takes. Second, this may not be an issue. The second mortgages for subprime borrowers are really part of the first meltdown. If banks are ignoring that as part of the mix right now, they're clearly suffering from monetary glaucoma. Further, the "prime" borrowers can refinance at the soon-to-be shrinking interest rates (or even the current ones, given that theirs is above market), so that's simple enough.

Mortgage "Fix"

I'll openly admit to my liberal leanings, but this mortgage crisis has elicited little empathy from me.

Dear lenders and mortgage backed security purchasers (those who bought the mortgages from the lenders), you are big, sophisticated outfits. To you, I say caveat emptor.

Dear America, you need a crash-course in personal finance. I don't care who told you what on the phone. This is a house. It is worth several times what you make in 1 year. If you don't understand enough about finances to buy it (or enough about your loan to pay it), don't.

That said, there are now reactions from the President and candidates, including Billary. POTUS wants to freeze variable interest rates. Problem is, his plan does nothing. Here's why.

1. The plan applies only to those current on their mortgage. People who have never missed a payment can likely pay -- they don't need the serious help. (I know, for some it is a stretch -- just not as big as for those who clearly can't make payments).
2. The plan simply freezes rates. Why are you taking a stab at the banks who lent to people who have demonstrated the ability to pay a variable rate?
3. The plan does nothing about those who are late on payments and/or facing foreclosure. Any plan that does nothing on this front is simply useless. I don't know what the correct action is, but you can't claim to be fixing the problem if you do nothing to address this end.

Billary's plan is even worse:

1. She also wants a rate freeze for those current on payments. Again, BFD. This is symbolic and goes against the terms of these people's deals.
2. She does include rate freezes for some people behind on payments. That's a little better.
3. But she wants a 90 day freeze on foreclosures. What is the purpose of the 90 days? Is it just to give Congress time to figure out a course of action? If so, fine, but make that clear. If it's supposed to do more...well, what are three months going to do? Give you a Christmas and then kick you out in the dead of winter? Great.

Other plans that have been floated include subsidizing mortgages (this will cost so much it would give you a heart attack), reforming lending practices to force lenders to sell the loan with the best rates (which contradicts the very nature of a capitalist market), and/or expanding the roles of Fannie Mae and Freddy Mac (I don't know enough to comment).

You know what will really help? For the banks to clean house on this, take a one-time Machiavellian loss on these mortgages, not by foreclosing (which is insanely expensive given that the resulting housing stocks will stay on the market forever), but by writing down the loans to the actual appraised value of the property today and developing a payment plan with the current owner. Yes, banks, you lose, but you have to admit that you really lost a long time ago when you bought these loans -- it just took a while for everyone to notice.

My 2 cents.

I am back.

Was in NYC - now returned with some notes.

1. Pats. Unreal. To be fair, unreal and very, very lucky. Still, I agree with Peter King of SI -- each of the calls in the last few minutes was correct. I do feel a leetle bad for the Ravens. Here come the Steelers. No. 1 in pass rush, run defense, and points allowed vs. no 1 in all offensive categories. Uh boy.

2. Pod Hotel (www.thepodhotel.com) Neat and relatively cheap. I recommend it if you want to stay in midtown with the euro crowd. That said, it books up really really fast.

3. Rockefeller Plaza in winter. With the xmas decor out, it is a truly magical place. Photos up soon.