No Reservations

Taking a day off from more serious legal topics, let's consider the trend reported by the New York Times today that an increasing number of restaurants are refusing to take reservations and are seating people on a first come, first served basis.

The Times and some of the restaurateurs involved suggest that the no-reservation system is more "democratic" than taking reservations. That's obviously rubbish. Last time I checked, anyone who was capable of paying for dinner at a restaurant was also capable of making a reservation -- all it takes is a telephone or an Internet connection. Reservations are hardly the preserve of some inaccessible elite.

The message sent by a restaurant that won't take reservations is "we don't give a damn how long you have to wait for a table -- it's no skin off our nose if you have an unpleasant waiting experience." The only thing worse than a restaurant that won't take reservations is a popular restaurant that won't take reservations. A popular pizza restaurant in DC -- I won't mention the name, but it's near the Cathedral -- doesn't take reservations, and while it does have good pizza, if you want to eat that pizza you have to spend at least an hour, usually more, waiting for a table, and that's if you go during the week. I don't go their often.

As the Times points out, taking reservations entails costs, and not taking them also means that customers are likely to spend longer in the restaurant's bar and order more drinks, which are a high markup item. So restaurants are just making money by not taking reservations, at the expense of their customers, who have a less pleasant experience.

If a restaurant usually doesn't have much of a wait for a table, not taking reservations is acceptable. Restaurants that refuse to take reservations and that expect their customers to wait for more than an hour before even sitting down might as well turn themselves into airlines -- the real experts in customer non-appreciation.

Stepped-Up Security

Police are said to be stepping up security in the wake of the failed car bomb attempt in NY. I suppose that's a good thing, and it's certainly wonderful that a combination of alert citizens and swift police response thwarted the car bomb in the first place. But really, how can we protect America against car bombs? Terrorism experts say that the Times Square bobmer's use of simple, easily obtained materials made the bombing "relatively easy to execute and nearly impossible to detect."

In our wide-open society, I don't see how simple attacks like these can really be stopped. We can't set things up so that you have to go through security whenever you want to go from anywhere to anywhere else. We can't have police everywhere all the time.

When Iraq was going through three or four big car bombings a week, I wondered why we didn't have them in the U.S. Perhaps part of the answer is social -- there probably aren't many completely solo car bombers; they must be fostered by the kinds of groups that we don't have. Let's hope it stays that way.

And meantime, appreciate the preciousness of life. Enjoy and savor.

Internet Explorer Has Stopped Working

As faithful readers know, on weekends we get to relax from more serious topics.

It was nice, I suppose, that Internet Explorer 8 included tabbed browsing. There's something in it, however, that doesn't work well with Windows Vista. I guess it's too much to expect that Microsoft's web browser would work with Microsoft's operating system.

On my laptop, which runs on Vista, I use IE 8 to browse the web. A fair bit of the time, when I close a tab in IE, I get a window headed, "Internet Explorer has stopped working," with the further message, "A problem caused the program to stop working correctly. Windows will close the program and notify you if a solution is available."

Gee, I closed a tab. It was supposed to stop working -- the tab, that is. I don't need a message taking up screen space and requiring me to close it.

And then, as if that isn't bad enough, when I close the message window, a further, little window opens up in the bottom right of the screen, with the heading, "Internet Explorer was closed," and this window says: "To help protect your competer, Data Execution Prevention has closed Interent Explorer. Click to learn more."

To help protect my computer! My computer needs protection from me closing a tab!

That window, at least, fades out by itself -- it doesn't have to be closed. But really, it kind of adds insult to injury to be told that "Data Execution Prevention" has closed Internet Explorer to protect my computer when all that was really happening was that I was closing a tab.

According to some Internet sources, some "add-on" is to blame, but really, I blame the operating system. Add-on or no add-on, it should be able to tell that I've just closed a tab. Come on, Microsoft, you can do better than this.

Response on the Census

In response to my last post, a faithful reader (one of my most faithful readers, actually), objected. I was commenting about people who are protesting the census, and faithful reader "Peter" commented:

"It seems that when dissent and protest of government action suits you (during a Republican administration, perhaps), civil disobedience is a sacred and patriotic duty. But when it doesn't suit you, it's kooky and unpatriotic.

"Ignoring the census is, for many, a form of civil disobedience. And a rather mild one at that. . . ."

Not an unreasonable point, Peter, but here are two responses:

1. There's a distinction between "dissent and protest" and breaking the law. If people want to march around with signs protesting the census (or draft registration, or income tax), that's one thing. But breaking the law -- e.g., not paying income tax, not registering for the draft, or not returning the census form when required by law to do so -- is something else. I don't enjoy paying income tax, but I do it because it's required by law. I wasn't wild about draft registration when it was instituted, but I registered, because it was required by law. I'm not saying one should never break the law (we'll get to that in the next point), but let's at least recognize that there are lots of ways to dissent from and protest public policy without actually breaking the law.

2. Yes, America has a long tradition of civil disobedience. But I only respect those who engage in civil disobedience if they're ready to accept the penalties. When Ben Sasway was upset about draft registration in the 1980s, he wrote a public letter to the President about it, saying that he wasn't going to register. He got prosecuted. I respected that. That was civil disobedience. But when people simply throw away their census forms, or don't pay their taxes, that's not civil disobedience, that's just crime. The essence of civil disobedience, I think, is that one breaks the law and accepts the penalties, in the hope of convincing society to change the law.

Of course, if the census forms were really unconstitutional, one could lawfully throw them away. But I covered that earlier. The census is constitutional and has been so held by the courts for decades.

OK, maybe the term "census kooks" was a little harsh. But really, people should do 5 minutes of research before proclaiming the census to be unconstitutional. If you just Google "census constitutional," the second result is the Census Bureau's web page citing the cases that hold the census to be constitutional. You can't just point out that the Census Clause doesn't require all the questions on the census (which is true) and proclaim the census to be unconstitutional. At least do the research. Thanks to Google, it doesn't take long.

And About Those Census Kooks . . .

Last week, I scoffed at the census kooks, who claim that there's something unconstitutional about the census questions. An added thought -- aren't these the same people who get all teary eyed telling us how much they love the country?

Listen, teary-eyed conservatives, your country, which you love so much, would like just a small favor from you. It would like you to answer a few simple questions, for national statistical purposes, that will help us understand our country better. It won't cost anything, it'll only take a few minutes of your time, it's not especially intrusive, and the answers are confidential. Not much to ask, really.

But apparently too much for you! Some lover you are.

Happy Pi Day

Google has a pretty celebration of pi day (3/14). Happy Pi Day to all old math geeks out there!

Watch What You Say

I am quoted in this week's Newsweek, which has got people e-mailing me about it. It's got me remembering that press quotations can be misleading.

Newsweek's reporter initially contacted me about some bills working their way through the Virginia legislature that would say that no one in the state would be required to buy health insurance. It had previously been reported that these bills, if passed, would "make it illegal to require people to buy health insurance." Federalism is one of my areas of expertise, so he asked me whether a state could prevent Congress from requiring people in that state to buy health insurance. I pointed out that (a) that's not even what the bills say, and (b) of course if they did say that, they would be pre-empted by a federal law that mandated health insurance, if Congress passed one. So any state that passed a bill that purported to protect people in that state from a federal mandate requiring health insurance coverage would just be engaged in meaningless grandstanding, as politicians so often are. (The chairman of the Federation of Virginia Tea Party Patriots said that the bill was a focus of major lobbying by Tea Party volunteers. It says a lot about the Tea Party that one of their major priorities is a bill that wouldn't actually do anything.)

He also asked me more generally about the health care bill working its way through Congress, and whether it would be constitutional for Congress to require people to buy health insurance. I spent a good ten or fifteen minutes explaining that while of course we don't know yet what the final bill, if any, will actually say, it looks to me like it would be constitutional.

I pointed out that (a) health care is commerce, in fact 1/7 of our national economy, and Congress's power to regulate commerce is very broad, and (b) as I understand it, the bill doesn't actually require people to buy health insurance; it just imposes a tax penalty on people who don't, and Congress is constantly using the tax system to impose incentives or disincentives on various behaviors, so that would be commonplace and would probably be OK. I also referred him to the analysis by my old professor Akhil Amar, which supports the bill's constitutionality. And I observed that lots of governments require people to buy things, including insurance (e.g., auto insurance), so that wouldn't be unheard of either.

I even explained why Senator Orrin Hatch's analysis claiming the bill would be unconstitutional is wrong. Hatch doesn't like the fact that the bill provides that if states don't set up "health insurance exchanges," the federal government will do it for them. But this makes the plan constitutionally better, not worse, because this way the states aren't required to set up health insurance exchanges; they have the option to do so or not.

Having said all that, I did say that the federal government would be doing something new, and that whenever that happens, people challenge it. Given that, as far as I know, the federal government has never done this before, I suggested that a constitutional attack on a federal mandate to buy health insurance would not be trivial or frivolous, but that, in my opinion, it would fail.

So out of the whole 20 or 30 minute interview, what got quoted? Naturally, the quote is:

"The federal government would be doing something new," says Jonathan Siegel, a constitutional-law scholar at George Washington University. "It's not a trivial claim" for the states to make. "It's not frivolous."

There you are. I am accurately quoted, and I can't put any fault on Newsweek, but it looks like I am attacking health care legislation, when I spent 99% of the interview defending it.

So watch what you say when you talk to the media. They only have space to quote one thought from you, and you never know which one it will be.

Big Media v. Big Auto

Enough with the snow posts, I'm tired of it.

I was at the gym yesterday (today the gym closed at 10:00 am, of course, even though the Rite-Aid on the same block is open), and while there, I saw a CNN report on the Toyota recall. The thrust of it was that experts consulted by CNN question whether Toyota really understands what is causing the unwanted acceleration problem with its vehicles. CNN suggests that the problem stems from electronic devices causing interference with the engines' electronic controls. Toyota insists that the problem is mechanical and that they know how to fix it.

Watching the report, I got a sad sense of overhyping by CNN (the print version linked above is slightly more guarded than the video version I saw). It's difficult to know whom to trust. Toyota has an obvious incentive to say that it has solved the problem. So I appreciate that its statements have to be regarded with some suspicion, as CNN copiously pointed out. But what CNN didn't point out is that CNN itself also has distorting incentives. The story "Toyota doesn't really know what's wrong with its cars and is lying about it" attracts a lot more viewers than the story "Toyota has everything fixed -- just take your car in as per the recall and everything will be fine." So CNN has an incentive to promote those experts it can find who will say bad things about Toyota.

Watching the report, I got the sense that while the experts portrayed are skeptical of Toyota's statements, CNN was positively goading them into saying more than they really believed based on their expertise. It would have been more balanced if CNN had commented on its own incentives as well as Toyota's. It would have been nice if CNN made a statement about how many experts it consulted and whether their views were conflicting. Did every expert consulted by CNN think the electronic interefence theory was more probable than the mechanical pedal problem theory? Or did CNN cherry pick and only show those experts who had that view, ignoring those who thought Toyota had things right?

It's hard to know whom to believe, but I can't say for sure that I would trust CNN more than Toyota. CNN could have helped its own credibility with some added perspective on the trust issue.

After the Fall

A snow day is fun, a snow week is a pain in the ass. Snowmaggedon very considerately came on the weekend, which minimized disruption, but with that much snow it wasn't surprising that most workplaces (including GW and the federal government) were closed on Monday. It was enjoyable to get an extra day to putter about and work at home in a relaxed way.

But now it's Tuesday, and schools and the government are still closed (a lot of private workplaces seem to be open), and with another big storm arriving today, there's no telling when we might be able to hold classes again. We've endured about two feet already, and the forecast calls for another ten to twenty inches today and tomorrow. Is there no limit to this? Doesn't the snow get used up?

One day of canceled classes can be made up without much trouble, but a week of canceled classes, which now seems all too likely, is a real disruption in the schedule. We have a couple of snow days built into the schedule, but not five. I don't think we can cancel spring break, and the exam schedule is pretty sacred. There'll be a lot of doubling up and we might have to eliminate reading period. It's going to be tough on both students and faculty.

What would be interesting would be if we got, say, four inches of snow. Around here, four inches is usually regarded as a major calamity, something that brings life to a standstill. But have Snowpocalypse and Snowmaggedon toughened up even the weather wimps of DC? Would we shrug off four inches and get ourselves to work? Unfortunately it looks like we won't find out. Snoverkill is on the way.

Snow Economics

NPR had a weather economist on the other day. Here's a bit of weather economics for you: have you ever noticed that the first business to shut down in a snowstorm is your gym?

Economics explains why. Other businesses make money by staying open. They have an economic incentive to tough it out if they can.

But your gym? It's got your money already. Staying open just costs the gym money. I don't know if the gym actually saves on salaries by shutting down -- perhaps not -- but it must save on heat, electricity, and wear and tear on the machines by keeping the place shuttered.

I know my gym is the wimpiest business in the neighborhood. Sure, they say it's a matter of safety when they close early in the snow. But I'm guessing there's a big dose of economics in there too.

What is it?

As we conetemplate the 12 to 21 inches of the stuff under which we are buried, there's only one thing on the minds of Washingtonians this morning: snow. But what exactly is snow?

According to unimpeachable sources, snow is just water. That's right, it's made up of "crystals of frozen water, i.e., ice."

It seems a little incredible at first. Sure, water can take on surprisingly different forms -- it can be a gas, a liquid, or a solid. But snow? Snow sure doesn't look like water.

Still, so many sources agree on this point, that I guess I believe it. Probably you do too. But all the same, join me for this little thought experiment:

If I gave you a cup of water and said, "turn this into steam," you'd know what to do.

If I gave you a cup of water and said, "turn this into ice," you'd know what to do.

Now suppose I gave you a cup of water and said, "turn this into snow." Would you even know how to start?

I don't know about you, but asking me to turn water into snow would be like asking me to turn straw into gold. I could fool around with water all day and you'd never see a single snowflake.

A couple feet of the stuff is pretty. But it sure doesn't look like water to me.

Snowmaggedon

D.C. is bracing for a potentially "historic" snowstorm, so last night I thought I'd pop over to the grocery store and pick up food for a couple of days.

So did everybody else. I tried my little neighborhood store, and it was picked clean. No milk, no beef, no chicken. So, I went to the big store, and it was practically the same thing! And lines of 10 or 15 people at every register, each with a cart filled to overflowing. So I tried again this morning. A bit better: but no quarts of milk, no half gallons. I had to pick up a gallon -- and there weren't many of those left. There was some beef and chicken. I took what I could find and counted myself lucky.

Washington can barely deal with two inches of snow, and we're expecting up to two feet. People are skittish like its Y2K all over again.

Weather Wimps

Schools are closed in several DC area counties today because of snow.

Today is Tuesday. It snowed on Saturday. That was more than two full days ago.

Where I come from, if it stopped snowing in the late hours of Sunday (say, at 11:30 pm Sunday), there would be some head-shaking if schools were closed on Monday. If it stopped snowing at 11:30 pm Saturday and schools were closed on Monday, there would be outrage. And if it stopped snowing at 11:30 pm Saturday and schools were still closed on Tuesday, people would get fired.

Network Kerfuffle

Of all the innumerable and embarrassingly public details of the infighting at NBC over its late-night lineup, the most curious to me is that Leno's poor ratings at 10 p.m. are unnaceptable to affiliates because they cause affiliates to lose viewers for their 11:00 news shows.

Are Americans really so lazy, are they such sorry slobs, that they choose their 11:00 local news based on which network had a better show on at 10:00? Can they not conjure up enough energy to click their remote controls when the news comes on? Presumably this means that most Americans will watch one local news show on Tuesday and a different one on Thursday, if they like different network fare on the different nights. Do they not develop preferences in news shows too?

I guess local news shows are just a commodity, like wheat or ibuprofen -- the product must be so standardized that it doesn't matter whom you buy it from. Which raises the even bigger question, why watch the local news anyway? Do you really need to know about every local crime and fire?

All You Need Is . . .

As faithful readers know, we get to relax from serious topics on weekends.

Blackberry commercials are generally pretty annoying, and it's somewhat dispiriting to see the Beatles' music used to hawk cell phones, but I will say that their latest commercials at least remind me what a great song "All You Need Is Love" is.

And here's the thing -- it all comes down to one note. It's the note on "need" the third time "all you need is love" comes around. The first two times the whole phrase is a monotone, but then the third time, it's different: "Need" is a half-step higher. Just half a step, but what a difference it makes, as a leading tone into the whole step up on "love." And it's a nice cover too, apparently by someone named Grayson Matthews.

I'm sticking with my Treo, but take a listen and appreciate the beauty of leading tones.

Finally, I'm Jon Siegel

After several years of trying, I am finally Jon Siegel. Of course, that's always been my name, but that name hasn't always been primarily me. Who decides who has the number one claim to being Jon Siegel? Google, of course.

For quite a while, the primary meaning of "Jon Siegel", as determined by Google, was a certain Jon Siegel, Ph.D. and Vice President (Technology Transfer) of the Object Management Group. Not only does he own www.jonsiegel.com (I had to be satisfied with the somewhat less appealing www.jsiegel.net), but he was on the top of Google's Jon Siegel chart for quite a few years. Unfortunately, he had multiple myeloma, a form of bone marrow cancer, but fortunately, his "multiple myeloma blog" reveals that he experienced complete remission several years ago, and today he's still listed on the executive page at Object Management Group.

In any event, while I wish my namesake the best of health, I was happy to see myself creeping up the search results over the past year or two. At first I was hardly even on the first page of a Jon Siegel search (although I was always pretty high in the search rankings for Jonathan Siegel), but things got better and better until I recently became, pretty reliably, the number one result in a search for either Jon Siegel or Jonathan Siegel. I think it's probably the tax pages that helped -- I know they're a little eccentric, but they are the most-visited part of my website.

I'm still only on page 13 of a search for just "Siegel" -- right behind Rosenthal, Siegel & Muenkel, LLP. That's what you get for having a common name, and I have two of them. But at least I own the combination -- for now.

Disturbances in the Blogosphere

The FTC recently churned up the blogosphere by releasing new “Guides Concerning the Use of Endorsements and Testimonials in Advertising” that indicate that bloggers — bloggers! — have a duty clearly and conspicuously to disclose whether they have a “connection,” such as the receipt of free product, with the makers of products that they endorse. (See particularly section 255.5, Example 7.) We thought that we were just posting stuff on our blogs, but suddenly it’s a federal matter.

Like most bloggers, I believe in freedom to blog, but I have to say I think the FTC has a point. The FTC’s statutory mandate is to stamp out “unfair methods of competition . . . , and unfair or deceptive acts or practices in or affecting commerce.” This venerable proscription should apply to new media as well as to old. The Internet is new and cool, but deception over the Internet is still deception. Deception on a blog is still deception.

If you’re representing yourself as a source of unbiased information about consumer products but (to take the simplest case) you’re actually getting paid by someone to say something nice about their products, there’s some deception going on. Whether it’s deceptive not to reveal that you’re reviewing a product that you received for free because you’re known to be an influential reviewer is a closer question. I expect magazine reviewers get free stuff all the time, but they don’t necessarily reveal it conspicuously, precisely because it’s already keyed into our assumptions. If the proscription against deception carries over to new media, the assumptions that mitigate deception should carry over too. So it’s ultimately a question of fact whether people assume bloggers get free stuff. But the basic point that it should be as unlawful to use a blog to deceive as to use anything else for that purpose is sound.

Also churning up the blogosphere is the opposite trend — the consumer use of blogs and other Internet avenues to say not-so-nice things about products and services they received. Usually big corporations have an edge in battles with consumers, but the Internet levels the playing field somewhat in this regard — the manufacturers and service providers have to be concerned about the ability of one dissatisfied consumer to communicate the problem to millions.

Let me join both trends at once. I recently redid my kitchen, and got all-new KitchenAid appliances. I’m sensitive to noise, so I carefully investigated the noise levels of the refrigerator and dishwasher, and they’ve turned out great. (FTC-Recommended Full Disclosure: I didn’t get a dime for saying that but I would be happy to accept an appropriate fee. KitchenAid, call my agent.)

But the oven! Would it even occur to you to check whether an oven might make too much noise, or, indeed, any noise at all? Well, my consumer friend, I want you to know that if you’re thinking of buying a KitchenAid range, you’d better check into it. Every time you switch on the oven (on my model at least), a fan comes on — quite a noisy fan, too, in my (admittedly sensitive) estimation. And it stays on the whole time you’re cooking. The purpose of this fan, I learned from a quite unapologetic KitchenAid representative, is just to cool the range’s electronic instrument panel. There’s progress for you — first they install a souped-up electronic panel you don’t really need (what was wrong with knobs, exactly?), and then they have to add a noisy fan so the panel won’t overheat.

The range had to go. I knew I couldn’t live with that fan noise, so I set out on a search for a range with a quiet oven. But it turns out to be impossible to search, because you can’t listen to ovens in stores — they’re not connected up. And they’re not rated for noise either. There’s no way to tell whether an oven is noisy short of buying it and installing it. After calling every appliance store for 50 miles around, I finally found a knowledgeable salesman who recommended GE Profile, and (after spending just a few hundred bucks to get the countertop reconfigured) I got a GE Profile Double Oven, which, thank goodness, is much, much quieter. So that’s what I recommend.

And I didn’t get a dime for saying that either.

At a Loss for Words?

Nobel laureate Herta Mueller was "at a loss for words" when she learned that she'd won this year's literature prize.

Not to be snarky or anything, but shouldn't the literary prize winner be particularly good at finding the right words?

Sunday Poll

Q. Did you participate in International Talk Like a Pirate Day yesterday?

A1. Arrr, be sure that I did, me hearties!

A2. Nay, ye scurvy scoundrel!

Modern English Usage

On the way back from teaching class today, I passed two women students in the hallway, one of whom was saying to the other, “I was in the same situation. But I manned up.”

Do women man up? I was interested to learn that they do.