For Want of a Nail

For Want of a Nail

Brave New Climate has one of the most comprehensible descriptions of the Fukushima reactor accident that I've seen so far, though there's a lively debate in the comments section about how accurate it is. While quite a few of the comments sound like ignorant hysteria, others make me wonder, since I don't know nearly enough to be able the answer the questions they raise. By far the most amazing part of the story to me is why it proved impossible to get backup generators in there fast enough to circulate the coolant to bleed off the post-shutdown residual heat:

Things were going well for an hour. One set of multiple sets of emergency Diesel power generators kicked in and provided the electricity that was needed. Then the Tsunami came, [at least five times as big as the plant had been designed for]. The tsunami took out all multiple sets of backup Diesel generators.

. . . When the diesel generators were gone, the reactor operators switched to emergency battery power. The batteries were designed as one of the backups to the backups, to provide power for cooling the core for 8 hours. And they did.

Within the 8 hours, another power source had to be found and connected to the power plant. The power grid was down due to the earthquake. The diesel generators were destroyed by the tsunami. So mobile diesel generators were trucked in.

This is where things started to go seriously wrong. The external power generators could not be connected to the power plant (the plugs did not fit). So after the batteries ran out, the residual heat could not be carried away any more. [Emphasis supplied]

There are hundreds of comments, but it took a while for someone to say, "Really? The plugs didn't fit? They couldn't just wire around somehow?" (But more colorfully.) Another commenter tried to explain why that might be harder than you'd think:

I think that we’re talking 100s of KVA needed to run the coolant pumps. You can’t exactly splice those wires without dedicated tools. You need a hydraulic ram with correct die to do attach lugs to the wire. You can’t do temporary insulation using electrical tape either. It just takes ONE missing piece for the job to be stopped. You don’t have the right die for the size of the wire available, or you don’t have the lugs, or, or, or. It’s very easy NOT to be able to do such a job when it’s unplanned for.

The following commenter is beating an anti-nuke drum, but I do take seriously his caution about the inevitability of human error:

[Y]ou can be certain humans will screw up. Constantly. And do things like build nuclear power plants on a subduction zone – with small containment vessels – and then put the power hookups for the cooling system in the basement. The cooling system which is the only thing that stands between them and a meltdown. It’s cheaper. Or extend the operating licenses of dozens of plants here and in Europe even though they are past there design lifetimes (and some like Vermont Yankee are leaking radioactivity into the the ground water). It’s cheaper. Or the contractors that cut this and that corner.

Along those lines, there are reports that all coolant is now being supplied by fire trucks, but the trucks keep running out of gas, or sustaining damage from the explosions.

In spite of all this, the author's conclusion is that the "core catcher" is there in case back-ups one, two, three, and four fail. The core catcher is designed to catch anything that slags down and is built to hold up easily to the total residual heat of the powered-down core. It will be a tedious and expensive business to clean up, but that's a headache for TEPCO, not the civilized world or even the immediate neighborhood. He believes there's practically no risk of a containment rupture, no matter what happens to the outside buildings, whose primary function is to keep rain off of the reactor and perform some air/steam filtration. In particular, he minimizes the level of radiation that can be detected in either the vented steam or the debris from the hydrogen explosion

I'm not finding very good information yet about that last part. It all seems to have been translated through a couple of layers of bureaucrats and/or journalists who don't have the slightest idea what they're talking about.

By the way, if you want to see how differently the story reads when an operator isn't as scrupulous as TEPCO, try this account of Chernobyl, especially the role of the grid operator, who insists that the plant power back up halfway through its safety test, because someone out there needs the electricity. Then reflect on the fact that Chernobyl had no containment dome of any kind. Then consider whether warm-hearted socialists make better engineers than the cold fish-eyed capitalists.

Spring Fertility:

The winter winds and snow took down many trees and branches, and we had to take down a few more with saws because they were dead and likely to fall on something we valued. Gathered up and burned on a garden spot, these provide potash and charcoal to the soil: natural fertilizer.

I also built some raised beds out of the larger limbs of some of the bigger trees. We're going to have a more formal garden this year, with the raised beds on one end, and the rows enclosed by a hedge of rosemary that should help keep out the deer. Our fruit trees -- planted last year -- are still not likely to produce, but by a year from now we should have several varieties of apples and pears. We also have numerous blueberry bushes and blackberry canes.

All of this is still at an early stage. It takes years to make it all right. Still, the work is good work, and it is coming along.

Gun Control

Presidential Gun Reforms:

President Obama's editorial from Sunday's Arizona Star is an unusually refined example of his rhetorical style. Normally he has the habit of positioning himself rhetorically as the single voice of reason between two groups of ugly, warring extremists. While this allows him to suggest that his position is the road of sensible compromise, it has the disadvantage of painting his allies as well as his ideological foes with a very negative brush. Since most Americans have interests aligned with one or another of the factions being painted, over time this rhetorical strategy tends to annoy most everyone.

This letter is finer than the usual technique because it uses the "compromise" rhetoric with far less disdain for his opponents (or, for that matter, his allies). It's well crafted.

Here's the part directed at gun rights supporters:

However, I believe that if common sense prevails, we can get beyond wedge issues and stale political debates to find a sensible, intelligent way to make the United States of America a safer, stronger place.

I'm willing to bet that responsible, law-abiding gun owners agree that we should be able to keep an irresponsible, law-breaking few - dangerous criminals and fugitives, for example - from getting their hands on a gun in the first place.

I'm willing to bet they don't think that using a gun and using common sense are incompatible ideas - that we should check someone's criminal record before he can check out at a gun seller; that an unbalanced man shouldn't be able to buy a gun so easily; that there's room for us to have reasonable laws that uphold liberty, ensure citizen safety and are fully compatible with a robust Second Amendment.

The one rhetorical flaw here is the phrase "common sense." The line is about getting beyond 'stale' debates, but the phrase "common sense gun [controls/reforms/laws/etc.]" is perhaps the oldest and most worn of the many old chestnuts here. I can't think of a single proposed gun control law that wasn't described as a 'common sense' reform.

If you've always had the feeling that somehow that particular rhetorical strategy was unfair, you're right. The "common sense" is an idea we have from Aristotle's Parva Naturalia (and De Anima, although there is some dispute about whether his "common awareness" here is analogous to his "common sense" from the other work) where it is a mental faculty of the individual's: it is the "sense" that unifies and orders all the other senses into a "common" picture. Thus, you see a beach and an ocean; you smell the salt water; you hear a seagull behind you: your common sense is what puts that all together into a mental representation of being on a beach, and allows the part of your mind that does hearing to warn the part of your mind that handles sight to expect a seagull arcing into the picture. When the gull appears from behind you, you are not surprised and are prepared to track its movements through space.

"Common sense" as we normally use the phrase in natural language is an extension of this capacity to humanity as a group. Now, instead of ordering separate senses (sight, hearing, etc.) we're ordering together our several separate representations. We are able, as a group, to compare our several ideas about what the world is like, and put them together into a picture we can agree upon.

Thus, the rhetorical ploy is unfair because it attempts to slide over the fact that there is substantial disagreement about the proposed new law. In order for a reform to be "common sense," it really needs to be something that we all pretty much agree 'fits our picture.'

Does the President's proposal achieve that for you? It's a little unsettling to read the Chief Executive of the United States arguing before the public that the first major reform needed is better enforcement of existing laws.

Good point: if only there were someone whose job it was to make sure the laws were enforced!

Aside from that, though, I think there is a serious sticking point in terms of defining what constitutes an "unbalanced" person in the right way. We all know this category exists -- we were just talking about ax-murderers yesterday -- but for the purpose of the proposal we would need to be able to define its membership pretty precisely. We talked about this at the time of the shooting. At that time, it was Rudy Guiliani who was proposing the restriction.

What is the due process that could work here? The diagnosis process, as I understand it, is largely an Occam's razor process -- that is, you look at reported symptoms and determine what is most likely. There's no lab test. No one can be sure the diagnosis is right.

There's also no meaningful appeal. Presumably, since the diagnosis has no force, you could simply get a second opinion. However, why would anyone give you one? They can't be any more certain of their diagnosis than the original doctor. That puts them in particular legal jeopardy if they give you the 'all clear': if they say you're good and they're wrong, they are personally liable for the harm you do. If they concur, or give a report that is noncommittal, they're safe. Why would they take the risk?

You might answer: "Because they believe in individual liberty." In that case, though, how can we rely on their clearance? Let us say that the ACLU were to set up a shop of psychologists who took it as their duty to clear everyone possible, in the interest of civil liberty. (Or say it was the NRA; whoever.) Now you really do need due process, to decide between the competing reports.

On what basis, though, would a court decide? Something as sentimental as the judge's personal sense of whether or not you 'seem normal'? A jury's? Shall we pursue a foundation for our fundamental liberties no more certain than that?

All of this suggests to me that we're far better off absorbing the occasional shooting -- and preparing ourselves, as individual citizens, to resist it -- than accepting this kind of restriction on basic liberty.

I still think 'a good sharp knife' is a better defense than the law in cases like this; the law is too blunt, you might say. Many times liberty can only be adequately defended by the individual who possesses it. This strikes me as a case of that type.

At the Great Rising Day

At the Great Rising Day

Jesus wept at the death of Lazarus. We're not meant to think death is no big deal. This being Lent, too, the liturgy and lessons are more focused on the trial than the overcoming. So when the lay reader mentioned Cheyenne in the service this morning I pretty much lost it. I came home and decided I needed a dose of this:

Why do we mourn departing friends,
Or shake at death's alarm?
'Tis but the voice that Jesus sends
To call them to His arms.

Why do we tremble to convey
Their bodies to the tomb?
There the dear flesh of Jesus lay
And vanished all the gloom.

Thence He arose, ascended high,
And showed our feet the way.
Up to the Lord our souls shall fly
At the great rising day.

Bons Mots

Bons Mots

Of course pragmatism is true; the trouble is it doesn’t work.

-- S. Morgenbesser

This book fills a much-needed gap in the literature.

-- Geoffrey Pullum

He is a quantum philosopher. I can’t understand him and his position at the same time.

-- S. Morgenbesser

He speaks in semi-entendres.

-- Unknown

Only you can prevent solipsism.

-- Unknown

I have learned from my mistakes, and I am sure I could repeat them exactly.

—Peter Cook

I was walking down Fifth Avenue today and I found a wallet, and I was gonna keep it, but I thought: well, if I lost a hundred dollars, how would I feel? And I realized I would want to be taught a lesson.

-- Emo Phillips

“I’ve had a perfectly wonderful evening, but this wasn’t it.”

-- Groucho Marx

Obliteration

Obliteration

This is why we don't have much idea yet how many people were killed in the Japanese earthquake and tsunami. It's like Galveston after the 1900 hurricane: the destruction is so complete that's there no information coming out of some areas. This site has a couple of dozen pictures, of which I've included just a couple.

Teaching an Axe Murderer

Teaching an Ax-Murderer:

An accused and convicted one who is now appealing the verdict, in any case. The problem of having an accused murderer in your classroom is an interesting one; but I was more intrigued by this claim:

Perhaps I should change [the syllabus] all overnight, or at least drop the group-project requirement for this term.

As I considered eliminating one story after another, however, I confirmed what I had sensed would be the case: Every story on the syllabus had some degree of relevance to this crime and to these students. Each story seemed crucial for students to read and for me to teach. Even if I revised the syllabus, the textbook's table of contents listed comparable stories. In fact, the course came to seem like an emergency measure, something akin to academic triage. The universal truth and central questions within the literature invariably circled around some aspect of this student and the crime.

The question that interests me is whether (as the author seems to fear) the subconscious had taken over and caused her to draw up a syllabus oriented around the ax-murder of a family by one of its sons; or if, rather, serious literature will always be found to be relevant to such questions. It can be more-or-less relevant, perhaps; but the great questions certainly include family tensions and violence. I wonder to what degree it is possible to get away from them. If you had been teaching Louis L'amour novels, where the family is usually a bulwark against violence from the rest of the world, you'd still be thinking in terms of families and violence. If you were teaching Jane Austen, you'd be asking whether the pressures of the family on its members were unduly aggressive in forcing compliance with accepted social standards. Mightn't that lead to violence? And so forth.

When I was eighteen or so, one of the members of my old Boy Scout troop took his .22 rifle and killed his whole family -- starting with his little brother, then his mother, then his step-father. We'd known him for years and years; he'd been out on camping trips with us many times.

What is to be made of all this? Or of any of it?

I think Corb Lund has a pretty good answer.



To return to the story, then, the lady asks:

Was there a risk? If so, could I ensure my students' safety? Could anyone? How much time would it take for security to respond to a call for help? Of course, I obsessed about my own safety....

The song answers, "Always keep an edge on your knife... because a good sharp edge is a man's best hedge against the vague uncertainties of life."

And that's right, as much as "right" has anything to say about these things.

Philosophy & Violence

The Philosophy of Violence:

"Leiter Reports: A Philosophy Blog" has come under some fire lately for having written this with regard to Wisconsin:

At some point these acts of brazen viciousness are going to lead to a renewed philosophical interest in the question of when acts of political violence are morally justified, an issue that has, oddly, not been widely addressed in political philosophy since Locke.

Dr. Althouse says, "And for the ordinary people outside of the circle of Leiter's respect, it's a simple matter to reject violence." Indeed, I suppose, it is a simple matter: but that's only because they haven't thought about it very much.

Leiter himself hadn't, and is therefore surprised to note (as he does in an update) that there has been quite a bit of discussion of the problem of justifiability in terrorism in the last few years. That article, like all the ones from the Stanford Encyclopedia of Philosophy, is well worth reading. There have been many recent attempts to justify terrorist violence; there have been some attempts to ban it absolutely as a moral matter.

Of course, justifying violence is much easier than justifying terrorist violence: if you merely want to know when you may take up arms against the government, as opposed to a civilian population, the standards are much easier to meet. In general, too, the philosophical community has been enamored of nonviolent resistance movements like Gandhi's and Dr. King's; and they invariably miss the fact that Gandhi's movement led to the wars of partition, in which perhaps a million people were killed; while Dr. King's movement was successful not because its nonviolence swayed the violent, but because it finally forced the President to call out the National Guard. It was the Guardsmen with their rifles that made real King's reforms.

The question of violence is one that we've discussed here very often over the last eight years. I'd be damned glad to see Leiter take it up, if he has the guts for the exercise.

Really?

Surprised?

The Atlantic was.

If you pay your bills on time, then you're probably also a good driver. This statement might come as a surprise to you, and Fair Isaac Corporation CEO Mark N. Greene says his firm didn't expect this result either. But over the years, auto insurers noticed a correlation between his company's FICO credit scores and their customers' driving records. As any good business would, FICO saw this as an opportunity.

Why would this be a surprise? Both of these qualities play off the same mental faculty. To be specific, it is the faculty of threat-awareness. The good driver has to remain aware of the world about him, and keep track of all the things that might impact him in his course of action; the man who pays his bills on time is likewise keeping track of external factors that may cause him problems if they are not adequately addressed.

If I pay my property-tax bill on time, the government doesn't auction off my house on the courthouse steps; if I pay my other bills on time, I don't have to field calls from irate collection agents. It's the same skill as avoiding car crashes. The world is full of threats; you're tracking them and putting them down as they come up. Good for you!

Health care is another industry that you might not expect FICO to be able to employ behavioral analysis. It turns out that many people with imperfect credit scores are also imperfect patients. Greene explains that his company has found that these individuals often don't take their medication as indicated and don't adhere to health care regiments set up by doctors.

Again, is this really surprising? The faculty here is self-discipline. So?

She'll Never Be a Soldier

She'll Never Be a Soldier

Our small community suffered a heavy blow last night. This lovely, strong, active young woman, our next-door neighbor, not yet 17, had a congenital heart valve defect for which she'd already had several open-heart procedures. She was due for open-heart surgery this summer, but then she was expected to need only one more, at the age of 21, after which the repair was expected to be permanent.

That's her on the left, in her party dress, just last night. In the middle of dancing at the ROTC Military Ball, she dropped like a puppet with cut strings. Her young dance partner had only time to break her fall and lay her gently on the dance floor. She was gone before medical help could arrive.

Cheyenne Turner had lived since she was quite young with her grandparents, our neighbors across the south fence. She was a brave young woman. She also had one of the loveliest, purest, most unaffected sopranos I've ever heard. This afternoon I said she sang like a bird. My neighbor reminds me that when I first heard her, that's not what I said. I said she sang like an angel.

The Japan Syndrome

The Japan Syndrome

Update: Explosion; What's with the Containment?

This happened sometime during the night, or at least, I couldn't find news reports at about 12:30 a.m. Central. The BBC report, last updated this morning at 8:14 Central, says the Japanese authorities are claiming that the "container housing the reaction was not damaged and radiation levels have now fallen. . . . [T]he concrete building housing the plant's number one reactor had collapsed but the metal reactor container inside was not damaged." Four workers were injured. It's clear that steam escaped, but it's not yet clear how contaminated the steam was. Radioactive cesium and iodine had been detected hear the number one reactor before the explosion. If the metal reactor container inside the concrete building was not breached, that's certainly good news. Although it's too early to rely on the frantic bits of official releases being reported worldwide, it's still possible that the steam, which is being blown out to sea, was not wildly dangerous. The damage to the nuclear plant, however, is considerable, and the damage to the nuclear power industry worldwide is incalculable.

Original post: Japan has 33 nuclear reactors, of which half a dozen or more were shut down by the earthquake. One in particular is turning some hair gray: the 480MW Fukushima nuclear plant about 160 miles north of Tokyo.

The plant had emergency systems, of course. The violent shaking of an earthquake triggers a shutdown in which the control rods are plunged into the nuclear core material to damp off the chain reaction. But the control rods don't work properly if they are allowed to melt -- and it's hot in there. So there's an emergency cooling system, which is basically a lot of liquid (water? I don't know) circulated by pumps through a cooling tower and cooling pond. The pumps are electric. The primary system is to run the pumps on the normal power grid, but the power grid was knocked out by the tsunami. Not to worry; there's a back-up: diesel generators. Unfortunately, those were knocked out by the tsunami, too. But hold on: there's a back-up back-up, which is batteries. They last for 8 hours.

The U.S. military has a crash-priority task to get more generators and/or batteries in there, along with everyone in Japan who can help with the same. If they lose the back-up back-up power to the cooling pumps, all the coolant can boil off in as little as an hour. When the coolant boils off, the reactor core can melt. At Three Mile Island in 1979, loss of coolant for 30 minutes led to a 50% meltdown. Not that meltdowns punch through the crust of the Earth or any of that nonsense, but radiation levels do start rising, and you worry about radioactive steam building up pressure and breaching the containment structure. Indeed, the Japanese government announced earlier today that the pressure was 50% above normal and that they planned to vent some gas to prevent too high a build-up. The gas is "slightly radioactive," they report. They also state that the level is so minimal that the release would cause no danger.

I'm as big a supporter of nuclear energy as you'll find, but that doesn't inspire my confidence. It's one thing to know that the U.S.S.R. couldn't build adequate safety systems, but Japan? It was a big earthquake, but not unprecedented, particularly in an especially earthquake-prone region. The tsunami was a well-known consequence of earthquakes at low altitudes near the coast. It's not hard to predict that an earthquake and tsunami might knock out the power grid. So how come the back-up diesel generators weren't someplace safer? How come the batteries are adequate only for 8 hours? I'd like to think that nuclear reactors were a little more conservative than this.

Elmore James

Elmore James:

One of the pieces Bill Kirchen does below is a riff from an old Elmore James piece called "Dust My Broom." I don't think we've looked at James before here at the Hall, but I'm sure you all know the piece.



Elmore James was called "King of the Slide Guitar" for a reason. He was also a veteran of the US Navy, and was there present at the invasion of Guam.

A fighting man and a true artist -- just the kind of man we respect here at the Hall.

Gutless

Gutless:

This video of death threats aimed at Wisconsin Governor Scott Walker is making the rounds.



Professor Jacobson asks why people aren't afraid to say this, even though many are professionals. Professor Reynolds agrees, pointing to a climate of impunity.

I can't agree that these people are fearless. "I hope someone shoots him" strikes me as a gutless thing to say. If you really believe that violence is warranted as a means of resisting political changes, you should take responsibility for your feelings and pick up a gun. Why should somebody else go to prison -- or to hell -- for you?

These cowards just hope that somebody else will have the courage of their convictions.

Tsunami

TSUNAMI

A huge 8.9 earthquake has struck Japan. A really nasty tsunami already has hit Hawaii and is due to strike the Pacific Northwest U.S. any minute now, with California an hour behind. Incredible video is coming in:

This one is almost deceptively calm until you get near the one-minute mark, and then you want all those guys on the bridge to get off the bridge and out of there.

For perspective, here are the largest earthquakes on record per Wikipedia. This one would rank number 7 worldwide, counting all the earthquakes we've ever been able to document (and estimate the sizes of) in recorded history.

1. 1960 Chile 9.5

2. 1964 Alaska 9.2

3. 2004 Sumatra 9.2

4. 1952 Kamchatka 9.0

5. 1868 Chile 9.0

6. 1700 Canadian/U.S. border West Coast 9.0

7. 2011 Japan 8.9

Every 0.1 increase in the Richter scale means about a 1.3x increase in intensity. Every 1.0 increase means a 10x increase in intensity. The difference between an 8.9 earthquake and a 9.5 earthquake is 10 to the power of (9.5-8.9), or 10 to the 0.6 power, which is about 4x, if I'm doing it right. So this earthquake was about 1/4 as big as the biggest one we know about, ever. Worldwide, earthquakes from 4.0 to 5.0 are basically a dime a dozen. From 5.0 to 6.0, they happen more than 100 times a month. From 6.0 to 7.0, a little over ten a month. From 7.0 to 8.0, a little over one a month. We can expect one over 8.0 only about once a year, and you can see from the above chart that "greater than 8.9" means you're going back hundreds of years to find a good pool of equivalent events.

It does get worse. Going back 65 million years gets you the asteroid impact that may have finished off the dinosaurs, and 250 million years gets you the Permian extinction -- the beginning of the Dinosaur Age -- which may or may not have had something to do with a million years or so of Siberian volcanoes leaving basaltic flows miles deep over an area nearly as big as the continental United States. Whether the Permian extinction resulted in part from an impact, or seismic upheavals, or something else, no one knows for sure.

They say the tsunami in northern Japan was 33 feet. So far, though, the reports in Hawaii and the U.S. west coast sound pretty moderate. I hope so.

CNN Thumbnail

A Thumbnail Sketch:

CNN has put together a useful thumbnail sketch of the current unrest in the Middle East and North Africa. It's remarkable that there's been this sudden push for democratic reforms across the entire region. If only we had seen this coming and had planned for it...

Well, no matter. The French are on the job, threatening airstrikes in support of the rebels in Libya if Gadhafi uses chemical weapons or attacks civilians. That's a more robust policy than the "no fly zone" that has been suggested -- which, on reflection, is both too weak and too expensive in that it requires you to control all the sky all the time, rather than just taking out Gadhafi's air assets once.

Time was we'd have been a bit embarrassed to have the French out-cowboying us, but in this case it's appropriate.



One of our 2012 requirements should be that 'any Presidential candidate must be a horseman.' Or horsewoman, as the case may be.

The Rest of the Jury Story

The Rest of the Jury Story

Since everyone who commented on my jury story agreed that Little Company was out of luck, you'll be happy to hear that the jury agreed with you. They were out only an hour before coming back with a decision that no contract was breached. They felt sorry for Little Company and would have awarded some damages if they could, but they took seriously their duty of sticking to the words of the contract they had been asked to examine. What's more, if they'd agreed there was a breach, they would have awarded only the legal fees for fighting the Mexican government, not the millions of dollars in lost profits.

Sometimes I worry about juries, but the defendant's lawyer told me she has great faith in their intelligence and good sense. She said this even in the middle of the trial when things didn't seem to be going well. She was right.

But should the jury really have put aside its sympathy for Little Company? After all, wasn't there some good sense in that nagging feeling that Little Company was getting hung out to dry for something Big Company did that they couldn't control?

I look at this trial as a problem in contract drafting. Little Company signed a guaranty agreement that it didn't understand. It should never have promised to make good to the Mexican government for the errors of Big Company without thinking through what would happen if Big Company screwed up something Little Company couldn't control, and without making sure Big Company was on the hook contractually to pay them back if that happened. In those situations, it's crucial to get a written reimbursement agreement (called an indemnity), and be sure it covers not only final losses if you lose but also expenses of defense even if you win in the end. An insurance policy would be a good idea, too. Corporate directors get both before they agree to serve. So Little Company might have been better off asserting a claim against its own counsel, if it bothered consulting any, than against Big Company. Maybe Big Company would have refused to sign an indemnity, reasoning that that's what they were paying their trusted native guide for: to make sure there were no problems in Mexico's wild and woolly legal system. In that case, Little Company could make an informed decision whether to sign the guaranty and keep getting commissions, or go find another customer. (The guaranty wasn't optional; the Mexican government requires it of an agent for a foreign principal engaged in the import business.)

The case is also a problem in legal pleading in a lawsuit. As I said in the comments below, the agreement that went sour here is not the agency agreement, it's the guaranty agreement, but Little Company didn't allege a breach of the guaranty agreement (for good reason, since LC didn't get BC to co-sign it). The jury was confused by the task of finding a reimbursement obligation in the agency agreement, for the very good reason that it's not in there.

If the reimbursement obligation had been anywhere, it would have been in the guaranty agreement or in some indemnity agreement signed in connection with the guaranty agreement. If that stuff isn't written, or isn't written properly, it's the plaintiff's job to plead a statutory duty, or implied duty, or breach of some inherent duty of principals to agents, or duty of good faith and fair dealing (that's the "moral obligation" of corporations to corporations). The thing is, you don't get to dream all that up in front of the jury; you have to plead it right at the start. Why didn't the plaintiff do that here? Who knows? They didn't seem to know much contract law. They seemed to think that playing on the jury's feelings of sympathy and outrage would be enough.

If the plaintiff didn't plead the right theories, why didn't the defendants get the case thrown out on motions to dismiss or motions for summary judgment before it ever got to the jury? The answer is, they tried, but the judge wouldn't grant the motions. I think there's almost no doubt the defendant would have won on appeal no matter what the jury had done. For one thing, the plaintiff waited too long to file the suit, and its theory of why the statute of limitations hadn't run was, um, unorthodox. But the jury didn't get to hear those aspects of the case. Only the appellate court would have heard them.

As for the lost profits, the jury wasn't having any of that. Now, it's true that the idea of damages for the lost value of Little Company's destroyed business wasn't crazy. After all, one day they had a business, and the next day it was basically dead. The problem was that it's one thing to project future business, and another to make it up out of thin air, with no historical basis. "I coulda been a contendah!" Texas law is admirably clear about speculative future profits not grounded in any historical track record. The plaintiffs hired a damages expert who came up with a number and then backfilled with analysis and data (as he admitted in an incautious email -- when will people learn?). The defendants hired a more experienced damages expert who said if someone turned in work like that at his firm, he'd be fired on the spot. I guess the jury wasn't impressed.

So remember: don't go around signing guaranty agreements. They're very tricky. The associated law of indemnity, reimbursement, contribution, joint and several liability, and subrogation are some of the hardest areas in business law. That jury was being asked to sort out one of the thorniest legal problems there is, and they weren't even being pointed to the right issues!

Jury Duty

Jury Duty

I got called for jury duty this week. My number was so high that there wasn't much chance of my being chosen, but I got interested in the case -- a contract dispute -- so I came back for the last three days to watch the trial. I'm curious what you guys would have made of the situation.

Big Company leases oilfield tools to Pemex, the Mexican government-operated oil exploration and production company. Big Company has no employees in Mexico; its only assets there are the equipment it has leased to Pemex. Little Company is Big Company's agent in Mexico.

The agency agreement between Big Company and Little Company is fairly short. It deals mostly with the calculation of commissions on leases. It also provides, however, that Little Company will take measures to ensure that Big Company stays in compliance with Mexican law. Furthermore, it provides that Little Company will pay all of its own costs and expenses of acting as agent.

Little Company develops contacts with Pemex and generally sees to it that Big Company is complying with a variety of local requirements, including all the stamps and fees that are involved in moving all these products across the border. In this connection, Little Company signs a document assuring the Mexican government that it will be responsible for any violation of Mexican law by Big Company. Big Company does not sign this "guaranty" document and in fact may not even be aware of its existence.

Pemex leases some huge tools from Big Company that are needed to install wellheads on the sea-floor in the Gulf of Mexico. Pemex uses the tools only once per well and doesn't need to keep them in its own inventory, but it does need to keep them long enough to complete each well. Mexican import/export law contains an exemption from customs taxes for equipment that comes into the country for short periods not to exceed six months. Sometimes, however, Pemex needs to keep the tools offshore more than six months. One of Little Company's employees in Yucatan is a good "fixer" who stays friendly with Pemex. He typically persuades Pemex to bring each tool back from offshore within six months, even if that means just putting the tool on a big semi and sending it back across the border into Texas briefly, before it goes right back into Mexico and back offshore until the wellhead is finished. Unfortunately, the fixer dies suddenly, and the only guy left in that division is an engineer who, despite his skill at explaining the product, doesn't really know all the ropes about the import/export dance. In fact, no one else in Little Company, including its big brass in Mexico City, really has this dance on his radar screen at all. Back in the U.S., Big Company has never paid much attention to the issue, because things always went smoothly before.

Suddenly an alarm goes up. Someone -- perhaps a government official or a Pemex employee -- alerts Little Company that a couple of tools have been in Mexico more than six months. The Mexican tax authorities are raising a stink: your exemption isn't good any more, pay those import taxes! After a brief scramble, Big Company gets its tools back from offshore and brings them back by truck across the border to Texas without incident, paying a late fee to the customs authorities there. Big Company then gets underbid on the next few Pemex projects that come up, and stops doing business in Mexico.

The Mexican government, however, isn't finished with Little Company. It sues Little Company for some amount that Big Company may still owe, for unexplained reasons. The amount sought is vastly greater than the late fees Big Company paid at the border; in fact, it's nearly as much as the two giant tools were worth, almost $600,000 total. The Mexican government seizes Little Company's rather meager office assets indefinitely. What's worse, it blacklists Little Company's two main guys, preventing them from bidding on any Pemex business or even talking to anyone at Pemex. Little Company tells Big Company what's happening. Big Company sends all the information it has, showing that Big Company brought the tools back over the border as soon as it could get them back from Pemex, and that Big Company paid the late fee at the border.

Over the next five years, Little Company doesn't manage to sell any products to Pemex. The blacklisted principals in Little Company move all of its employees to some other affiliates, but those affiliates don't sell anything to Pemex, either. This may be because the affiliates lack the services of the principals, but there is some evidence that the blacklist applies to the principals only in connection with some of the affiliates, not all. Little Company claims that, although it had never actually sold anything to Pemex before, it had made some impressive demonstrations to Pemex officials and was on the verge of making some great sales when it was shut down. Little Company therefore claims it lost several million dollars in profits over the five-year period after the seizure and blacklisting. At the end of that period, the Mexican tax authorities quit chasing Little Company, but it's still not clear why they sued in the first place, or why they stopped, or whether they might start again.

Back in the U.S., we get to the lawsuit I sat through this week. Little Company sues Big Company for breach the agency agreement, arguing that Big Company violated Mexican law and then left Little Company to face the wrath of the Mexican authorities alone. Little Company asserts that the agency agreement requires Little Company to pay only its own expenses, not those of Big Company. It follows, therefore, that when Big Company failed to pay its own expenses and Little Company got hit up for them instead, that was a breach of the agency agreement.

So who wins? What facts are left out that you'd want to know more about before you could decide?

Bill Kirchen

Bill Kirchen Plays... Well, Everything:

In accord with T99's Billboard post from a week or so back -- and in deference to today's very high gasoline prices -- let's join Bill Kirchen in remembering the grand old days of the hot rod Lincoln.



You always have to admire a man who will try to match Earl Scruggs. You don't hold it against him that he can't -- of course he can't. It's a glorious thing even to have made an honorable try.

Here's a few more men giving it a good shot.

???

That's a Lot of Rowing:

Young couples start falling apart after only three years these days, because of 'the stresses of modern life.'

Romance begins to fall flat at this point as couples take each other for granted, argue ever more and lose their sexual appetite, researchers say. Those in three-year plus relationships row for an average of 2.7 hours per week compared with 1.2 hours for those still in the first flushes of love.

I don't sustain three hours a week of "rowing" with everyone I know put together, nor would I wish to do so. That sounds exhausting.

DO ANY OF THESE GENTS LOOK LIKE AN "ALPHA MALE TO YOU?

Really???

I might buy off on Tim Oliphant*** but the traditionalist in me finds the rest of the nominees extremely unsettling.

*** language alert, one word only